HS2 (High Speed Two Limited) & Anor. v Elliott Cuciurean & Ors.

In contempt proceedings, hearings are generally public. A private hearing is permissible only to the extent necessary to secure the proper administration of justice, after balancing privacy and confidentiality against open justice and freedom of expression.

Where sensitive information relates only to the contemnor’s anticipated experience in prison, rather than culpability or mitigation of the breach, it will ordinarily carry less weight in deciding whether proceedings or reporting should be private. The court may nevertheless consider it privately at an interim stage where necessary to assess its potential relevance. The court should avoid giving advance guarantees about confidentiality before hearing the evidence and submissions.

The claimants sought committal sanctions against seven defendants for admitted or proved breaches of an injunction restraining trespass and interference with HS2 construction works at Cash’s Pit Land. Six sanctions were imposed and the sanctions hearing for Elliott Cuciurean was adjourned.

Cuciurean sought privacy and reporting restrictions concerning medical information intended to support mitigation, permission to rely on late evidence, and limits on attendance at the sanctions hearing. The claimants challenged the earlier private hearing and opposed restrictions on the number of parties and representatives. The central issues were the proper procedure for assessing privacy, the interaction between open justice and article 8 rights, and the court’s power to obtain a pre-sentence report in civil contempt proceedings.

1. Applications and procedure. The claimants’ application challenging the earlier private hearing was dismissed. The defendant’s application was granted in part. The forthcoming sanctions hearing would remain public overall, but the private information could be considered in a private part of the hearing attended by the parties, with reporting restrictions applying during that part.
2. Private hearings. CPR rules 39.2 and 81.8 establish public hearings as the general rule in contempt proceedings. A private hearing requires necessity, not consent alone. The court must consider freedom of expression and open justice, and any restriction must be proportionate and no wider than required. The earlier short private hearing was justified because the court needed to know the information before deciding whether it was sufficiently private, confidential and potentially relevant.
3. Balancing exercise. Information relevant to culpability or the length or type of sanction should generally be disclosed because the public is entitled to understand the sanctions process. Information relevant only to the suffering a defendant may experience in prison is ordinarily less relevant to the court’s sanction decision, since prison conditions are principally matters for the prison service. The court would decide the final reporting restrictions only after receiving the evidence and submissions. It declined to guarantee in advance that the information would remain private.
4. Pre-sentence report and late evidence. The court had a wide inherent jurisdiction to obtain assistance on sanctions. In the unusual circumstances of this case, ordering a pre-sentence report was permissible and avoided excluding potentially relevant mitigation. No general practice was established. The defendant was permitted to rely on late expert and probation evidence if served and filed at least three days before the hearing, subject to further application for later evidence.
5. The requests to restrict attendance by one claimant, lawyers or corporate representatives were dismissed. The sanctions hearing was listed for one day with an increased time estimate.

First instance decision. The judgment was delivered in advance of the adjourned sanctions hearing for the defendant.