The Dekagram: 17th February 2025

This week we examine a decision on the tension between open justice and protection of commercially sensitive information (we understand, by the way, that on 25^th February the Court of Appeal will hear the appeal in PMC relating to the circumstances in which anonymity orders may be made). In a further development, the Court of Justice of the European Union, in NW & YS V Qatar Airways, Case C-516/23, has provided further (non-binding) guidance on the interpretation of Regulation (EC) No.261/2004 (‘the Denied Boarding Regulations’), and in particular in relation to passengers travelling pursuant to a promotional campaign not open to all members of the public, together with questions around when re-routing should take place. Lastly, we would like to thank all those who attended the Deka Chambers Accidents and Deaths Abroad Conference on 13^th February; our distinguished speakers gave us all much food for thought, although some of the slides may have suppressed our appetite. As ever, it was a pleasure to spend time with friends old and new, and given that the clamour for a further similar event next year has already begun, we hope to see you all very soon.

To Redact or not to Redact? That is the Question determined by Senior Master Cook

In Morretti v Leone [2025] EWHC 145 (KB) Senior Master Cook was called upon to decide to what extent, if at all, documents in a case should be redacted to obscure commercially sensitive information. He accepted that they should.

The claimant and the first defendant had worked together to set up the second defendant company, which was an investment firm offering hedge funds. The claimant was dismissed from the second defendant’s employment and brought proceedings seeking damages in respect of personal injury allegedly caused by bullying and harassment on the part of the first defendant. The particulars of claim made allegations regarding sexual conduct and disparaging statements allegedly made by the first defendant regarding employees. The claim was stayed pending the determination of a claim by the claimant in the employment tribunal.

The defendants submitted that redaction was necessary to protect commercially sensitive information, including the identity of the advisor and its clients, and the identities of employees in relation to whom references to disparaging comments and/or allegations of sexual conduct were made. They contended that client confidentiality was fundamental within hedge funds and significant prejudice would be caused to them and to their clients if their names were made publicly available, that statements of a sexual nature engaged the ECHR Article 8 right to private life of the relevant individuals and that revealing the identities of the employees was not necessary for a proper understanding of the claim.

The claimant argued that the information had been a matter of public record since July 2024, that it was all highly relevant to his claim and, if redacted, the public would not be able to understand a central part of his claim. In the interests of open justice, therefore, the unredacted pleadings should be accessible to the public in the usual way.

Senior Master Cook carried out a review of the authorities relevant to redaction. He noted that departure from open justice was the exception rather than the rule (cf R v Bedfordshire Coroner, ex parte Local Sunday Newspapers Ltd [2000] 164 JP 283). Where a party sought a restriction on access to the court file, in each case the court had to carry out a fact-specific balancing exercise. On the one hand would be the purposes of open justice and the potential value of the information in question in advancing that purpose; on the other would be any risk of harm which its disclosure might cause to the maintenance of an effective judicial process or to the legitimate interests of others. Broadcasting authorities and newspaper editors should generally be trusted to fulfil their responsibilities accurately in order to inform the public of court proceedings and to exercise sensible judgment about the publication of comment which might interfere with the administration of justice.

Nevertheless, there was an arguable case that the information the defendants sought to redact attracted a degree of commercial confidentiality. The redaction of client and advisor names would not have any detrimental impact on the reporting of the claim or prejudice the claimant’s ECHR Article 6 rights to a fair trial. Anyone accessing the statements of case would not need to know the identities of the third parties referred to in order to understand the allegations. The balancing exercise fell in favour of granting the redactions sought in relation to clients and commercially sensitive information.

However, the defendants should have made the application sooner, and before any sensitive information had entered the public domain. The redactions sought in respect of the identities of the second defendant’s employees were declined. It would be clear to anyone looking at the court file that the claim had been stayed, prior to a defence being filed, with the purpose of enabling the claimant’s employment tribunal claim to be resolved. In respect of these redactions the balance came down on the side of open justice.

Comment

With the hearing of the appeal in PMC v A Local Health Board [2024] EWHC 2969 (KB) imminent, it is interesting to reflect on the approach being taken by the courts to questions around open justice. Whilst in the past anonymity orders may have been made as a matter of course, particularly in cases involving children and patients (and on one occasion the author was surprised to have one made by the Court of Appeal without any party having requested it), it may be that we have entered an era in which the judiciary is placing greater emphasis on the requirement for justice not only to be done, but to seen to be done. Quite how making public the identity of an injured child furthers this end is perhaps open to question, but it does seem that anonymity and redaction is at least theoretically less popular on the Bench than it used to be, even very recently. The decision in Morretti underlines what litigators already knew; each case must be considered on its own merits, and it is perfectly possible for some restrictions and redactions to be made whilst others are refused. Furthermore, notwithstanding the decision of the High Court in PMC, the judiciary remains willing to consider and to grant anonymity orders and redactions where to do so appears just. It is to be hoped that the Court of Appeal will provide further guidance on the extent and limits of the principle of open justice and how it is to be balanced with individual rights.

About the Author

Called to the Bar in 1997, Sarah Prager KC has been listed in the legal directories as a Band 1 practitioner in travel law for many years, and, more recently, listed in aviation as well. Together with her colleagues at Deka Chambers, Matthew Chapman KC, Jack Harding, Dominique Smith, Tom Yarrow and (formerly) Henk Soede, she co-writes the leading legal textbook in the area, and has been involved in most of the leading cases in the field in the last decade. She undertakes purely domestic high value personal injury work as well as cross border work and has a wealth of experience of difficult and sensitive cases.