Fulham Football Club Ltd v Kline

Contempt proceedings should generally be heard in public. A private hearing is permissible only where the court is satisfied that one of the conditions in CPR rule 39.2(3) is met and that privacy is necessary for the proper administration of justice. The court must scrutinise the application particularly carefully, consider freedom of expression, and assess whether a less restrictive measure, such as reporting restrictions, would suffice. Where the substance of the contempt allegations consists almost entirely of confidential material whose publication is itself said to constitute the breach, publicity may defeat the object of the hearing. The parties’ consent, opposition, or absence of media representations cannot determine the issue.

Fulham Football Club Ltd applied for three conjoined applications, including two committal applications concerning alleged breaches of injunctions and other obligations not to publish disparaging allegations or confidential information, to be heard in private. The defendant did not attend and did not strenuously oppose privacy. No media organisation made submissions. The court had first to determine whether the November hearing should be public or private, applying the open justice principle and CPR rules 39.2 and 81.8.

1. Application granted. The conjoined November hearing was ordered to be heard in private.
2. Open justice is the fundamental rule. Under CPR rule 81.8(1), contempt proceedings must be listed and heard in public unless the court otherwise directs under rule 39.2. The court must form its own view; consent, non-opposition, or the absence of media submissions is not determinative.
3. The test under CPR rule 39.2(3) is one of necessity. The court must be satisfied that one of the specified grounds applies and that privacy is necessary to secure the proper administration of justice. It must consider any affected freedom of expression rights and whether a lesser measure, including reporting restrictions, anonymisation, or restricted access to records, would suffice.
4. Rule 39.2(3)(a) applied because the hearing would require consideration of the alleged damaging and disparaging statements, their timing, motivation, and whether they breached the relevant obligations. Public ventilation of that material could reproduce the very harm which the injunctions and committal applications sought to prevent.
5. Rule 39.2(3)(c) also applied because the hearing would involve confidential information whose publication would damage confidentiality. That ground reinforced, rather than independently determined, the conclusion under sub-paragraph (a).
6. The case was materially different from one in which confidential material arose only incidentally. The substance of the hearing was expected to concern material said to have been improperly published. Proceeding in public with reporting restrictions covering almost everything debated would create dispute and risk publication without useful benefit.

The hearing was therefore necessarily private in the interests of justice.