OCADO GROUP PLC & Anor v RAYMOND MCKEEVE

Derogations from open justice in committal proceedings require exceptional circumstances and must be strictly necessary to secure the proper administration of justice. The court must rely on clear and cogent evidence, impose no wider restriction than necessary, and consider whether a lesser measure would suffice, including reporting restrictions, anonymisation or restricted access to court records. Where confidential commercial information would be exposed publicly, a private hearing may be ordered for the limited periods during which its content is discussed, provided that the restriction is proportionate. Protective orders governing access to court documents and subsequent use may also be made where they strike an appropriate balance between open justice and confidentiality.

The claimants applied in committal proceedings for limited parts of the hearing to take place in private. The application concerned commercially sensitive documents found in the defendant’s possession during the execution of a Search Order in underlying confidentiality litigation.

The claimants also sought notice requirements for third-party applications to obtain copies of confidential documents from the court file, under Civil Procedure Rules 1998, rule 5.4C(2), and an order restricting subsequent use of those documents under rule 31.22. The central issue was whether the requested measures were necessary and proportionate derogations from open justice.

1. Limited private hearing. The application was granted so far as it concerned reference to the contents of the commercially sensitive documents. Under Civil Procedure Rules 1998, rule 39.2(3)(c) and (g), the court had to be satisfied that private proceedings were necessary to secure the proper administration of justice.
2. The principles summarised in Taher v Cumberland [2019] EWHC 2589 (QB) were applied. Committal applications are generally heard in public. A derogation requires exceptional circumstances, clear and cogent evidence, and a restriction no more extensive than strictly necessary. The court must also consider whether the objective can be achieved by a lesser measure, such as reporting restrictions, anonymisation or restricted access to court records.
3. The evidence established that the commercially sensitive documents contained currently relevant commercial and operational information likely to interest competitors. Public disclosure would risk undermining the confidentiality protections sought through the underlying proceedings and the Search Order. No lesser measure would adequately address that risk.
4. The restriction was proportionate because the documents were expected to feature only briefly in the trial. The private hearing was therefore limited to periods when the content, rather than merely the existence, of the documents was discussed.
5. Document-access and use orders. Orders were also made under Civil Procedure Rules 1998, rule 5.4C(2), requiring three clear days’ notice of third-party applications for copies of the confidential documents, and rule 31.22, prohibiting subsequent use except for the purposes of the proceedings. Those measures applied to the wider collection of confidential documents and were proportionate to the identifiable risk, while preserving a route for interested parties to apply to vary the order.