THERE WAS NO GOOD REASON FOR AN INJUNCTION APPLICATION TO BE HEARD IN PRIVATE OR AN ANONYMITY ORDER GRANTED

In Pump Court Chambers Ltd v Brown (aka Goodfield) [2024] EWHC 2428 (Ch) Charles Morrison (sitting as a Deputy High Court Judge) refused an application that an injunction hearing take place in private and the parties have anonymity.

“Is it the position that the more impecunious the applicant, the more likely the court will be to close the doors of the court? That is not an argument that holds any attraction for me.”

THE CASE

The claimant company administered fees received by a barristers’ chambers. It brought an action against the defendant, a former employee, who admitted that she had stolen £2.75 million in fees over five years.  The claimant obtained proprietary and freezing injunctions against the defendant.  The initial hearing of the application was made at a hearing held in private and an anonymity order made.

THE SECOND HEARING

At the second hearing it was clear that the injunction should be continued. The primary issue for consideration was whether the hearing should be held in private and the anonymity order continued.

THE JUDGE’S CONSIDERATION OF THE LAW

The Law

1. 1. The open justice principle to which this court will have regard, was explained over a century ago by the House of Lords in Scott v Scott [1913] AC 417. In that case, Lord Shaw of Dunfermline observed “Publicity is the very soul of justice.” The position was more recently reviewed by the Supreme Court in Cape Intermediate Holdings Ltd (Appellant/Cross-Respondent) v Dring [2019] UKSC 38, in a case concerning access to documents which featured in the proceedings. In opening her judgment, citing a principle of broad application, Lady Hale P, observed:

“With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done.”

1. 1. In Scott, Lord Atkinson’s view [463] was that:

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.”

1. 1. The position of Viscount Haldane LC, [435-437] was that the court would only sit in private if there was “some other and overriding principle”, and where “justice could not be done at all if it had to be done in public”. In addressing the exceptions to the general principle, the Lord Chancellor said this:

“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 class 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 the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.”

1. 1. With all of this mind I must apply the rule as laid down in CPR 39.2(3). As is made clear in the notes to the rule set out in the 2024 edition of The White Book:

“However, that rule is not absolute. CPR 39.2(3) is facilitative and permits certain limited exceptions, always assumed to that being subject to the interests of justice.”

APPLYING THOSE PRINCIPLES TO THE CURRENT CASE

Discussion

1. 1. It is said that PCC and the Chambers to which it is related will have to spend time dealing with the consequences of publicity if I do not sit in private. The resources of PCC are slim. This indeed may be an inconvenience, perhaps even a severe distraction. But is that a good reason to depart from the principle of open justice? I have to say I don’t think that it is. Is it the position that the more impecunious the applicant, the more likely the court will be to close the doors of the court? That is not an argument that holds any attraction for me.

1. 1. It does not seem to me that the outcome feared by PCC is such as would stand in the way of the proper administration of justice or defeat the object of the hearing.

1. 1. It is also necessary to consider what is the object of the hearing. To my mind the object was not, as was submitted by Mr Pourghadiri, to protect the integrity of the Chambers, but rather to decide if PCC was entitled to the injunctions it asked for, along with the disclosure orders. Would in these circumstances a public hearing prevent the object of the hearing being achieved? The orders have been made. Mrs Goodfield’s assets, or perhaps more properly the assets belonging to PCC, have been frozen in her hands. She must now explain what has become of the money she took; if the funds are now represented by chattels, she must explain what they are and who has them. None of this is prejudiced by the court doing its business, as it usually does, in public.

1. 1. Whilst it might be convenient to be able to approach former members of Chambers in four weeks’ time with a full and detailed explanation of precisely what might have been lost to them as compared to having to deal in generalities at this juncture, does such a benefit weigh more heavily in the scales than the deeply entrenched principle to which I have made reference? Once again, I cannot see that it does; the point does not persuade me on the two tests which I am invited to apply. Moreover I can see that former members of the Chambers, and indeed solicitors’ firms having dealings with PCC, might want to know of the problem at the earliest opportunity. In my judgment it is not for the court to regulate such affairs without a proper case for doing so being put before it. I don’t see that it was in the context of the question of whether or not the court would sit in private.

1. 1. I also had to weigh in the scales the likely impact on PCC of the disclosure of the wrongdoing. That argument, to my mind, lost its force upon the disclosure that all members of the Chambers are now aware of the extent of the wrongdoing of Mrs Goodfield. Matters will now take their course, although I did not in any case find it easy to come to the position that sophisticated members of a respected chambers would feel it necessary to seek to practise elsewhere when it was patent that their management colleagues were doing their utmost to recover the proceeds of an alleged fraud.

1. 1. I confess to a degree of difficulty with the “tipping-off” point raised at the hearing by Mr Pourghadiri. Although no authorities on the point were put before me, such an argument, it seems to me, can provide a justification for the court to sit in private and for the making of an anonymity order. It is at once obvious why the object of the hearing might be prejudiced by the subject matter of a tracing claim being ventilated in public and as a consequence, immediately communicated to a wrongdoer.

1. 1. On balance, I do not in the circumstances of this case, see that the risk to the freezing and disclosure exercise makes it necessary for the matter to be heard in private so as to secure the proper administration of justice, or to avoid defeating the purpose of the hearing. There has been privacy hitherto; the injunctions were granted on 21 August; those acting in concert with Mrs Goodfield, if there are any, the privacy attaching to the order of Edwin Johnson J notwithstanding, would have had ample opportunity in the past four weeks to take steps aimed at concealment or dissipation.

1. 1. The question of whether to make an anonymity order is dealt with under CPR 39.2(4). The rule provides:

“The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of any person.”

1. 1. For the reasons that I have given, mutatis mutandis, I am not persuaded that non-disclosure of the party names is necessary so as to secure the proper administration of justice, nor is it necessary in order to protect the interests of PCC. Whilst it was appropriate to make such an order at the ex parte stage, in light of the admissions of Mrs Goodfield, such an order is not now necessary on her account.

Disposal

1. For the reasons that I have given, I refuse to order that this matter be heard in private. I also decline to make any anonymity order under CPR 39.2(4).