HM Revenue and Customs v Banerjee (No 2)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Henderson |
| Judgment Date | 19 June 2009 |
| Neutral Citation | [2009] EWHC 62 (Ch),[2009] EWHC 1229 (Ch) |
| Docket Number | Case No: CH/2007/APP/0198 |
| Court | Chancery Division |
| Date | 19 June 2009 |
[2009] EWHC 1229 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Mr Justice Henderson
Case No: CH/2007/APP/0198
Mr Sam Grodzinski (instructed by the Solicitor for HMRC) for the Appellants
Mr Mark Warby QC (acting on a direct access basis) for the Respondent
ON THE APPLICATION BY THE RESPONDENT TO HAVE THE MAIN JUDGMENT ANONYMISED
Mr Justice Henderson:
Should the main judgment be anonymised? Introduction
The Revenue's appeal to the High Court was heard in public, in the usual way, on 5 December 2008. No application was made by or on behalf of Dr Banerjee, either before or during the hearing, for the hearing to take place in private. Her previous appeal to the General Commissioners had likewise been heard in public, no direction to the contrary having been made by the Tribunal either upon the application of Dr Banerjee or of its own motion: see regulation 13 of the General Commissioners (Jurisdiction and Procedure) Regulations 1994, SI 1994 number 1812, as substituted with effect from 31 December 2002 by SI 2002 number 2976. On each occasion Dr Banerjee was professionally represented, before the General Commissioners by Stanbridge Associates Limited and before me by Mr Julian Hickey and Berwin Leighton Paisner LLP (“BLP”): see paragraphs 3 and 4 of the main judgment.
I circulated my judgment to the parties in draft on 14 January 2009, saying that I intended to hand it down on 20 January and asking for lists of typing corrections and other obvious errors to be submitted to my clerk by 16 January.
On 16 January BLP forwarded to my clerk a written submission from Dr Banerjee, in which she gave a number of reasons for requesting anonymity in the judgment for herself and the senior medical colleagues who had written the letters appended to the case stated. In his covering letter, the partner of BLP with conduct of the appeal, Mr Jonathan Levy, said that Mr Hickey and he had “explained the consequences, in terms of publicity, that pursuing litigation in the High Court might have when we were first instructed”, but the issue was clearly troubling Dr Banerjee, and he was therefore taking the liberty of drawing it to my attention. I have no doubt that he was right to do so.
The reasons given by Dr Banerjee for requesting anonymity were, in essence, that any publicity would be detrimental to her professional reputation and career, and that she had no choice in bringing the matter to the High Court, because she was the respondent to the Revenue's appeal. She drew attention to her position as a single woman, working in the public sector in a public place, where “anyone can easily find me and walk in through the door”. She said that she had recently been a victim of identity theft, and was feeling extremely anxious as a result. Her name was an unusual one, she had no receptionist, and there were no “barriers of protection” between herself and the public or the press. She had no resources to deal with public or press enquiries regarding her tax affairs.
Dr Banerjee went on to say that she oversees the care of several hundred patients each week in her department, who cover the whole spectrum of society including convicted criminals. She does not want them to know about her personal tax affairs, and publicity for them could give rise to unforeseen consequences. There have already been attacks on staff at the inner city London hospital where she works, and she has faced aggression from patients on several occasions. She also expressed the fear that any publicity would harm her professional reputation. Senior doctors are expected to keep a low profile outside the academic and professional spheres, and publicity for her tax affairs would be “frowned upon by those in positions of power over my career”. She cited the example of a doctor in her speciality who had recently been named in a press article, and who had been formally disciplined as a result.
Dr Banerjee went on to submit that her confidential personal details were not relevant to the issues of legal principle discussed in the judgment, and made various suggestions about how the judgment could be anonymised.
On 19 January I sent a letter in reply to BLP and copied it to the Revenue. I said that, although I had considerable sympathy with many of the reasons which Dr Banerjee had given for wishing to preserve her anonymity, my firm provisional view was that it was now too late for me to anonymise the judgment, even if the circumstances might have justified a prior request that the High Court hearing should be held in private. My letter continued:
“The hearing on 5 December 2008 took place in open court and in public, and the findings of fact in the case stated were the subject of submissions on both sides and questioning by myself. Any interested member of the public would be able to obtain a transcript of that hearing, and it seems to me that any rights to privacy and confidentiality that Dr Banerjee might have wished to assert were irretrievably lost at that stage.
I would add that, as I am sure you are aware, it has always been the invariable practice (to the best of my knowledge) for tax appeals by way of case stated to be heard in public, and for the full text of the case to be reported together with the judgment. There is a strong public interest in the precise facts upon which the judgment is based being known, and perhaps particularly so in an area as fact-sensitive as the deductibility of expenses for income tax. Any form of anonymising places the facts at one remove, and may reduce the value of the case as an authority as well as making it harder for an interested reader to follow the judgment. Moreover, I am not clear what jurisdiction, if any, I would have to direct redaction of the case stated now that it has been transmitted to the High Court and been the subject of a public hearing.”
I went on to note that the consequences, in terms of publicity, of pursuing litigation in the High Court had been explained to Dr Banerjee by Mr Hickey and Mr Levy when they were first instructed, but no application had been made for the hearing to be held in private. Dr Banerjee was of course the respondent to the appeal to the High Court, but she had initially appealed against the amendments to her self-assessments, and she had professional representation at the time. I added:
“I would have thought it was generally understood by all taxpayers that, if they appeal to Commissioners, there is a possibility that the case may proceed to the High Court or beyond, and at that stage their right to confidentiality in relation to that part of their tax affairs will be lost.”
I therefore said that I still proposed to hand down the judgment on the following day in its existing form unless I heard that Dr Banerjee still wished to pursue her application, in which case it would be necessary to arrange a further hearing at which I could hear full argument on the point from both sides.
My letter prompted a further urgent communication from Dr Banerjee, in which she asked me to delay handing down judgment until she had had an opportunity to seek independent advice on the question and to consult her union. She made it clear that BLP were unable to continue to represent her. In the event, a short hearing took place on 20 January, at which I was addressed by Mr Hickey, who confirmed that BLP felt unable to represent Dr Banerjee in her quest for anonymity, and by Mr Grodzinski, who said that if Dr Banerjee, having taken advice, did pursue her application, the Revenue would oppose it. This represented a hardening of the Revenue's stance, because they had previously indicated that their attitude might be one of neutrality. In the circumstances, and in view of the strength, and evident sincerity, of Dr Banerjee's concerns, I decided to postpone handing down my judgment until she had taken independent advice, and (if she was advised to pursue the application) until it had been determined. My initial reluctance at taking this course, with the inevitable delay that it would occasion, was outweighed by the potential importance of the question and the risk of unfairness to Dr Banerjee in rejecting her application out of hand, despite the very late stage at which it had been raised.
In due course Dr Banerjee was able to secure the services, on a direct access basis, of Mr Mark Warby QC, and a timetable was agreed between counsel, with my approval, for the service of sequential written submissions by Mr Warby for Dr Banerjee and Mr Grodzinski for the Revenue. I have had the benefit of an initial submission from Mr Warby dated 17 February 2009, a submission in response from Mr Grodzinski dated 25 March, and a submission in reply from Mr Warby dated 30 March, supplemented briefly on 7 April. In addition, on 25 February 2009 Dr Banerjee issued a formal application notice asking the court to make two orders. The first order that she seeks is that the judgment should be anonymised, in order to protect her private life. The second order sought is described as a “supplemental direction”, forbidding the Revenue from disclosing to the public, or any section of the public, any information about Dr Banerjee (such as her name, address, professional status, or details of her medical career or qualifications) which would be likely to lead to her identification as the respondent to the appeal. Dr Banerjee supported her application with a written statement, which repeats and in some respects amplifies the points already made in her earlier submissions to me of 16 and 19 January, and with a proposed anonymised version of the judgment.
The application notice requested that I should deal with the matter without a...
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