Appeal court rules in favour of open justice

Proceedings in court should be conducted in public except in the most unusual circumstances, the Court of Appeal said today.

The declaration came from the Master of the Rolls, Lord Neuberger, and Lord Justice Leveson in a case involving an appeal against Mr Justice Eady’s refusal to continue an interim injunction obtained by a wife and intended to stop her estranged husband publishing information from papers in foreign divorce proceedings.

Richard Spearman QC, for the appellant, Elena Ambrosiadou, had asked the Court of Appeal at a hearing on 20 March to deal with the case in private because he would be referring to material and information which arguably should be protected from public dissemination.

The Court rejected the application.

Lord Neuberger said in a judgment on the appeal today: “We took the view that the application should be refused, provided steps could be taken to ensure that arguably private information, whether mentioned in court or contained in a document referred to in court, could not be disseminated outside the court.

“As has been stated on many occasions, court hearings should take place in public and should be freely reported unless justice cannot be done on that basis in the particular case, and in that event, the court should ensure that the restrictions on access and reporting are the minimum necessary to enable justice to be done in that case.”

In this case, the court had ordered that there should be no reporting of specific information, whether or not it was mentioned in court, without the permission of the court or the written agreement of both parties or their solicitors.

“On that basis, we could see no objection to the hearing proceeding in open court, on the basis that counsel could be expected to be able to avoid revealing any private information in their oral submissions,” he went on.

“If, for some reason it had been necessary to do so, counsel could have asked the court to sit in private temporarily; if counsel had accidentally revealed any private information orally, the court could have made an appropriate order preventing its reporting. This did not appear to give rise to any difficulties.”

He added: “In many cases involving alleged confidential information, one or both of the parties wish the hearing to take place in private, because of understandable concern that confidential information may be revealed in the course of the hearing.

“Before applying for the hearing to be in private, the parties and their advisers should consider whether such concerns can be accommodated by a less drastic course, such as that adopted in this case. Experience suggests to me that it normally can,” he said, adding that he agreed with Lord Justice Leveson’s comments.

Lord Justice Leveson said he agreed with Lord Neuberger’s general observations about the need to conduct proceedings in public save only in the most unusual circumstances, and went on: “As in this case, it is almost invariably possible to conduct a hearing of this nature in public and in such a way as demonstrates adherence to the principle of open justice, while at the same time ensuring that truly confidential material is referenced on paper and does not enter the public domain.

“When cases of this nature arise, therefore, it is critically important that parties conducting them prepare documents (including submissions) in a way that facilitates that approach.

“Without being prescriptive but by way of example, this could involve placing confidential material in an annex which the court can readily identify and order not to be disclosed.”

The Court of Appeal – Lord Neuberger and Lord Justice Leveson were sitting with Lord Justice Pitchford – allowed Ms Ambrodiadou’s appeal and agreed to issue an injunction banning her estranged husband, Dr Martin Coward, from publishing material which was redacted from a document submitted as an application to a Greek court, and from publishing the document itself.

But Lord Neuberger, giving the judgment of the court, said he did not think the injunction should go any further, as there was no history or threat that Dr Coward would publish any other document in the Greek proceedings, or any information derived from those proceedings to which Ms Ambrosiadou could object.

Ms Ambrosiadou obtained the original injunction from Mr Justice Maddison in July last year after Dr Coward published information from a document submitted to a Greek court in divorce proceedings between the couple, and a statement.

The information involved concerned some personal information and some connected with a dispute between the couple about Dr Coward’s resignation from the company they had founded, IKOS CIF Ltd, and his resignation from its board.

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