Kingsley Napley LLP v Harris & Anor

The principle of open justice is fundamental, but a hearing or part of a hearing may be conducted in private where a statutory or procedural exception applies and privacy is necessary to secure the proper administration of justice. Confidential personal information, particularly relating to a non-party’s finances and health, may justify a private hearing where publicity would damage confidentiality and the individual’s interests outweigh the public interest. The court should restrict privacy to what is necessary and proportionate. Where separate issues are inextricably linked and the evidence cannot realistically be redacted without losing its proper context, the connected issues may properly be heard in private. The court may also restrict subsequent use of documents disclosed in the proceedings.

Kingsley Napley LLP brought proceedings for unpaid fees. Steven Harris counterclaimed for professional negligence concerning three retainers, including a Matrimonial Matter and a Possession Matter. At the commencement of the trial, Mr Harris applied for those two matters to be heard in private.

The application concerned the interaction between the open justice principle, the Civil Procedure Rules, the privacy afforded to ancillary relief proceedings under the Family Procedure Rules, confidential information belonging partly to Mrs Harris as a non-party, and documents disclosed on an assurance that the relevant issues would be heard privately. The central issue was whether privacy was necessary and proportionate for the two linked matters.

1. Application granted. The Matrimonial Matter and the Possession Matter were ordered to be heard in private. The IWG Matter and the remaining public parts of the trial were unaffected.
2. The starting point was the fundamental principle of open justice. Its purposes include holding courts and judges to account and enabling the public to understand the justice system and judicial decisions. The default is public access to submissions, arguments and documents placed before the court and referred to during the hearing.
3. Under Civil Procedure Rules 1998 rule 39.2(1), hearings are generally public. Rule 39.2(3)(c) permits privacy where confidential information is involved and publicity would damage confidentiality. Rule 39.2(3)(g) permits privacy where necessary to secure the proper administration of justice. The court applied those criteria alongside the open justice principle.
4. The ancillary relief proceedings had been heard privately under rule 27.10(1) of the Family Procedure Rules 2010. A public hearing of the related professional negligence issues would undermine that protection. The documents also contained highly sensitive information about Mrs Harris’s finances and health. Her privacy interests outweighed the public interest in disclosure of those matters.
5. The court treated the assurance given by the family court and Mrs Harris as a further reason to preserve confidentiality. Redaction was not a proportionate solution because the Matrimonial Matter and Possession Matter were inextricably linked: there had initially been one file, and cross-examination on the Possession Matter would rely on documents from the family proceedings.
6. Persons who were not parties were restricted from applying for copies of the identified confidential documents under rule 5.4(c) of the Civil Procedure Rules 1998 without 21 days’ written notice to the first defendant. Pursuant to rule 31.22(2), the confidential documents could not be used for any purpose other than these proceedings, whether or not they were read or referred to during public parts of the trial.