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England and Wales High Court (Commercial Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Commercial Court) Decisions >> ABC v Shulmans LLP  EWHC 2458 (Comm) (25 September 2019)
Cite as:  EWHC 2458 (Comm)
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BUSINESS AND PROPERTY COURTS
QUEEN'S BENCH DIVISION
Fetter Lane, London, EC4A 1NL
B e f o r e :
Sitting as a Judge of the High Court
Mr Jamie Smith QC (instructed by BLM) appeared on behalf of the Defendant/Respondent
Hearing date: 16 September 2019
Crown Copyright ©
"The terms of this Deed are confidential to the Parties who shall keep its terms, the negotiations between the Parties and their representatives leading to its terms, and the facts and matters and allegations which were in dispute in the Tribunal Proceedings and Court Proceedings (except to the extent that any of the foregoing are already in the public domain at the date hereof) confidential and not disclose them to, or otherwise communicate them to, any third party other than….
(c) pursuant to an order of a court of competent jurisdiction…"
"1 There be substituted for all purposes in this case, in place of references to the Claimant by name, and whether orally or in writing, references to the letters "ABC".
2 Likewise the other parties to the settlement deed dated 02 February 2016, in place of references to their names, references to "XYZ" or where a corporate entity, "XYZ Ltd".
3 To the extent necessary to protect the Claimant's identity and the identity of the other parties to the settlement deed dated 02 February 2016, any other references, whether to persons or to places or otherwise, be adjusted appropriately, with permission to the parties to apply in default of agreement as to the manner of such adjustments.
4 So far as the claim form, or any judgment, order (including this order), or any other document to which anyone might have access pursuant to CPR 5.4B-CPR 5.4D at any time does not comply with the above, the Claimant's solicitor has leave to file with the Court copies of such documents adjusted so as to comply therewith. Such copies are to be treated for all purposes as being in substitution for the relevant originals, and the originals are then to be retained by the Court in a sealed envelope, marked 'Not to be opened without the permission of a Judge or Master of the Queen's Bench.'
5 A non-party may not inspect or obtain the copy of any documents from the Court file without the permission of a Master. Any application for such permission must be made on notice to the Claimant (the Court will affect service).
6 A non-party may not obtain any copy statement of case or document from the Court file unless it has been edited (anonymized) in accordance with this direction.
7 Reporting restrictions apply to the disclosing of any information that may lead to the subsequent identification of the Claimant or any other party to the settlement deed dated 02 February 2016.
8 The Claimant has permission to file a further copy of the claim form with the above initials in place of his name with the address of his solicitors. The copy of the claim form filed at Court with the Claimant's full name and address is to be placed in a sealed envelope marked 'Not to be opened without the permission of a Judge or Master of the Queen's Bench.'"
"The Claimant is concerned that [the owner] and/or [the company] may regard the disclosure, in the course of these proceedings, of the terms of the Deed and the circumstances of its execution, as a breach of the Deed (see for example Clauses 21, 22 and 25). There is therefore a very real risk that the settlement might be unravelled in a Claim brought by [the owner] and/or [the company] against the Claimant. The risk of a Claim being brought for breaches of the Deed would act to deter the Claimant from bringing this Claim and would jeopardise his right to bring an action for negligence and breach of contract against his former solicitors."
"The Application for Confidentiality is not to be regarded as a tactical move on behalf of our client. It has been pursued on the basis that an Order for Confidentiality is required to protect our client from any potential proceedings (and the resultant media interest) that would result if it became apparent that this case involved [the owner]. …. If the proceedings as currently sealed are served, then they become a public document and the risk of [the owner] finding out about the proceedings are heightened. There is a high risk our client would then face litigation from [the owner] in relation to the settlement."
"… We cannot understand what risk the parties are exposed to as matters stand, unless it is your intention to disclose the current proceedings to [the owner]. Such a move would clearly be extremely unwise where there is a current Application before the Court that seeks to deal with the issue of confidentiality. Indeed, it is our view that such a disclosure would be in contempt of Court and a breach of privilege. Our client (who is a party to the deed) would have further claims in damages against your client."
"I therefore also seek an order in the form of the draft annexed to the application that the parties to the [Deed] be anonymized in these proceedings to protect me against the clear risk of [the owner] reacting adversely to me taking these proceedings, and therefore taking action against me."
"To give proper effect to the principle of open justice the Court must ask whether there is a sufficient general public interest in publishing a report of proceedings, that identifies the party, to justify curtailment of a person's rights under the ECHR."
What this means, as developed orally, is that the principle of open justice does no more than lend itself to an open balance of competing rights and interests. On one side of the balance sheet, it is necessary to ask whether the public might have an "interest" (in a very generalised sense) in any particular fact or matter arising in the litigation, such as, in this case, the identity of a party. If not, then the pull towards open justice is weakened. On the other side of the balance sheet are countervailing rights, including, as in this case, rights under Article 8 ECHR. If, ultimately, there are countervailing rights and little public "interest", then the Court should be amenable to placing appropriate privacy protections so as to give effect to those rights.
"Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. As Lord Toulson JSC observed… the court has to carry out a balancing exercise which will be fact specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others."
The alleged Article 8 rights
a. The fact that there was an element of the case concerned with the Claimant's medical history.
b. The fact that the subject matter of the action was a settlement agreement, the terms of which were protected by confidentiality provisions.
c. The fact that the agreement involved the settlement of court proceedings.
d. The likelihood that the claim would involve the disclosure of documents otherwise subject to legal professional privilege.