D v P
| Jurisdiction | England & Wales |
| Judge | Sir Colin Rimer,Sir Timothy Lloyd,Lord Justice Lindblom |
| Judgment Date | 12 February 2016 |
| Neutral Citation | [2016] EWCA Civ 87 |
| Docket Number | Case No: A3/2015/3756 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 2016 |
[2016] EWCA Civ 87
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
MR JUSTICE SNOWDEN
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Lindblom
Sir Timothy Lloyd
and
Sir Colin Rimer
Case No: A3/2015/3756
Naomi Ellenbogen Q.C. and Sam Neaman (instructed by BPE Solicitors) for the Appellant
Paul Nicholls Q.C. and Simon Forshaw (instructed by Slaughter and May) for the Respondent
Hearing dates: 19 and 20 January 2016
On 19 and 20 January 2016, this Court heard, in private, an expedited appeal from the Order of Snowden J in the matter of D v P. That Order had itself followed an expedited trial, in September 2015, the majority of which had also been conducted in private. The trial concerned a claim to enforce certain post-termination restrictive covenants contained within the Defendant's contract of employment with the Claimant.
For reasons set out in a separate open judgment dated 2 November 2015, [2015] EWHC 3152 (Ch), Snowden J handed down his full judgment in private. In summary, that was because he was satisfied that his full judgment and the Order which resulted could not be made public without destroying, or damaging, the confidentiality of the confidential information to which he had referred and that it would be impossible to prepare a redacted or anonymised version of the judgment for release to the public without the same result.
In his Order, Snowden J provided that the parties were at liberty to refer publicly to those parts of the proceedings which had taken place in open court, together with the following facts and matters concerning the case:
"Following an expedited trial of the claim by the Claimant in September 2015, which was heard in private to protect confidential information, the Court, by order made on 23 October 2015, granted an injunction until 15 June 2016 to prevent the Defendant acting in breach of certain post-termination restrictions in his contract of employment. The Court was satisfied that the Defendant was acting in good faith, and had acted honestly in relation to the matters at issue in the claim, but considered that injunctive relief was nonetheless appropriate in the circumstances."
As was recorded at paragraph 6 of the Judge's open judgment, the Order also contained a number of provisions which would, as and when circumstances changed, enable him to consider whether to relax or modify the confidentiality restrictions attaching to his full judgment, the Order and other materials relating to the case.
At P's application, unlimited permission to appeal from the Order made was granted by Snowden J.
Following an application at the opening of the appeal made by Mr Nicholls QC, for D, this court was satisfied that the commercial sensitivities of the issues at the heart of the appeal required that, until further order: (i) the appeal be listed as D. v. P. and heard in private; and (ii) that no non-party should have access to the appellant's notice, the skeleton arguments, the parties' correspondence with the court, any documents placed before the court or the recordings or transcripts of the proceedings. Ms Ellenbogen QC, for P, did not argue otherwise and the court made an order to that effect. Whether our judgments were also to be issued in private was to be the subject of further argument when counsel had considered them in draft.
The essence of the reasoning was founded on the court's recognition that the confidentiality asserted by D related not just to certain information, but also to the very existence of that information. The evidence explained why secrecy of the latter nature was essential and this court, like the Judge, was satisfied that D's commercial reasons for wishing to maintain that secrecy were ones that the court should respect. Once it had come to that conclusion, the court regarded it as clear that it ought to hear the appeal in private and make the other orders which it did.
In Scott (otherwise Morgan) and Another v. Scott [1913] AC 417, at 437, Viscount Haldane LC said:
"The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a case which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only a means to an end, must accordingly yield."
The court was, of course, sensitive to the consideration that open justice is and should be the norm, but in this case it concluded that, in order to do justice to D, the general rule had to yield. A public hearing would inevitably result in a central part of D's confidential information becoming public knowledge. The court considered that it would also have been impracticable to hear any part of the appeal in public. It was also satisfied that its obligations under the European Convention on Human Rights and Fundamental Freedoms did not require it to do otherwise than proceed as it did.
The Court's draft full judgments in this case were handed down in private and submissions invited. On behalf of the Appellant, P, Ms Ellenbogen QC adopted a neutral stance regarding the privacy of the full judgments, subject to promulgation of a separate open judgment which would explain the reasons for departing from the normal position, record the existence and disposal of the appeal and contain certain passages from the full judgment which she submitted to be of particular jurisprudential significance to parties and practitioners in this area of law. In that context, she submitted, the principle of open justice was the more important. Such an approach would also be consistent with that adopted at first instance. For the Respondent, Mr Nicholls QC submitted that the considerations which had inclined this court to hear the appeal in private and to make the further orders summarised above equally applied to its full judgment. That judgment should therefore remain private. He did not object to the promulgation of a separate open judgment in terms which would not damage the confidential matters to be protected. I therefore set out below those aspects of my full judgment to which I consider it appropriate to refer in...
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