Brearley & Ors v Higgs & Sons (A Firm)

Where an application may derogate from open justice, the court must ask whether the proposed order is necessary in the interests of justice. Confidentiality alone does not justify such a derogation. The court may use its general case-management powers where necessity is established, including to correct an expert report before trial where a source was unexpectedly identified and the order preserves the opposing party’s ability to test the expert’s evidence. Relevant considerations include the expert’s ability to give evidence freely and the possible effect on the willingness of others to assist experts in future.

At a pre-trial review, the defendant sought permission to substitute or redact an expert’s supplemental report so that an information provider, referred to as Mr A, would not be named or identified. Mr A had provided information for the report but said that he had not understood that he would be identified. The claimants opposed wider suppression, while accepting a compromise under which the report would be replaced without identifying Mr A and a supporting witness statement would remain available in redacted form for possible cross-examination.

The issue was whether the compromise engaged open justice and, if so, whether it was necessary in the interests of justice.

1. Order made. The court approved the parties’ compromise. The defendant could substitute the supplemental expert report without naming or otherwise identifying Mr A. The supporting witness statement was to be re-filed in redacted form, with its possible use for cross-examination preserved. Costs were reserved.
2. There was no specific provision in the Civil Procedure Rules 1998 governing this situation. Rule 39.2(4) concerned anonymisation of a party or witness, whereas Mr A was neither and was not proposed as a witness.
3. Any derogation from open justice had to satisfy the requirement of necessity in the interests of justice. The court could make the order under its general case-management powers if that test was met. Confidentiality considerations alone were insufficient.
4. The application differed materially from Khuja v Times Newspapers [2019] AC 161, which concerned reporting restrictions after an individual had been named at trial. Here, the proposed correction was sought before trial and before the material had been referred to in open court.
5. In balancing the competing considerations, the court gave weight to the need for expert witnesses to assist freely and without perceived commercial pressure, and to the possible wider deterrent effect on persons who might otherwise assist experts. The compromise protected the expert while preserving the claimants’ ability to cross-examine him fully, including on credit.