Orders restricting public disclosure of proceedings under rule 49 of the ET Rules 2024, balancing open justice against privacy. Fallows v News Group Newspapers Ltd; Clifford v Millicom Services UK Ltd.
The foundational authority on open justice. The House of Lords held that proceedings must be held in public as a matter of constitutional principle. Viscount Haldane LC stated that 'justice is not a cloistered virtue'. The case recognises only limited exceptions (wardship, lunacy, trade secrets) and remains the cornerstone of the open justice principle in English law. Every subsequent authority on derogations from open justice traces its lineage to this decision.
(Summary can stand.) Correct judge field to: Lord Woolf MR, Auld LJ, Buxton LJ.
Qualified privilege in defamation; political information. The House of Lords established the 'Reynolds privilege' defence: publication of political matters is protected by qualified privilege where there is a duty to publish and the public has an interest in receiving the information. The defence requires the defendant to demonstrate responsible journalism by reference to a non-exhaustive list of factors including seriousness, source, verification, status of the information, urgency, comment sought, tone, and circumstances. The case is a foundational authority on the balance between freedom of expression and reputation.
Open justice and press access to employment tribunal proceedings. The EAT held that employment tribunal hearings are public proceedings and representatives of the press are entitled to attend and report. Any derogation from open justice must be justified on the specific facts of the case. The case is a foundational authority on the default public nature of ET hearings and the limited scope for excluding the press.
Wasted costs orders and legal professional privilege. The House of Lords held that legal professional privilege is absolute and cannot be overridden in wasted costs proceedings. There is no exception for alleged iniquity. The policy justification for privilege is to enable clients to obtain legal advice without fear that the advice may be used against them. The case is a leading authority on the scope and importance of legal professional privilege in civil proceedings.
Privacy and breach of confidence; Article 8 ECHR. The House of Lords held that publication of information about the claimant's drug addiction and therapy was a breach of confidence and an infringement of her right to privacy under Article 8. The photographs taken covertly outside the therapy clinic added materially to the intrusion. The case established that there are now two distinct causes of action: breach of confidence and misuse of private information, the latter being the vehicle for giving effect to Article 8 rights.
Injunctions; freedom of expression; modified the American Cyanamid test where injunctions restrain publication, the applicant must show they will 'more likely than not' succeed at trial under s.12(3) Human Rights Act 1998.
Privacy; open justice; balancing Articles 8 and 10 ECHR. The House of Lords held that where the right to respect for private and family life (Article 8) and the right to freedom of expression (Article 10) conflict, neither right has automatic precedence. The court must focus on the comparative importance of the specific rights at stake in the individual case and apply a proportionality analysis to each. This is the foundational authority on the balancing exercise applied in employment tribunal privacy and anonymity applications under Rule 49 ETR 2024.
Anonymity in care proceedings involving children. The Court of Appeal upheld the long-standing practice of anonymising children and families in public law children proceedings. The welfare of the child is paramount and may justify restrictions on open justice. The case addresses the balance between transparency in the family justice system and the protection of vulnerable children from identification and its consequences.
Restricted reporting orders; variation; jigsaw identification. The EAT (Underhill J presiding) upheld the tribunal's variation of an RRO to permit naming of the claimants at their own request: a protected person's change of mind can justify reconsideration (Hart v English Heritage considered), and on the facts identifying the claimants was not likely to identify the alleged perpetrators. Observations: 'likely' in s.11(6) ETA 1996 prima facie means a real chance rather than statistical probability; former colleagues or clients interested in jigsaw identification are 'members of the public'; and an order may explicitly prohibit identifying a non-protected person where that would be likely to identify a protected person.
Anonymity in civil proceedings alleging sexual assault. The House of Lords held that defendants in civil proceedings involving allegations of sexual misconduct were entitled to anonymity where there was a real risk of prejudice to related criminal proceedings. The open justice principle must be balanced against the risk of injustice in the criminal process. The case recognises that anonymity may be necessary to protect Article 6 rights in connected criminal proceedings.
Open justice and non-party access to court documents. The Supreme Court held that where documents have been placed before a court and referred to in the course of proceedings, the default position is that a non-party should be permitted access. The court identified two principal purposes of open justice: (1) enabling public scrutiny of judicial decision-making, and (2) enabling the public to understand how the justice system works. The common law principle is not confined by statute or rules of court.
Interim privacy injunction; anonymity; blackmail. Tugendhat J granted an interim injunction restraining publication of the claimant's identity in proceedings against the media where the claimant alleged blackmail. The court applied the intense focus test from In re S, balancing Article 8 privacy rights against Article 10 freedom of expression. The case illustrates the circumstances in which anonymity may be granted to protect a claimant from further harm, even where the underlying allegations are contested.
Clandestine recordings and expectation of privacy. The Court of Appeal held that an employer did not have a reasonable expectation of privacy in respect of a covert recording of a disciplinary hearing made by an employee. The recording was made for the employee's own protection and the purposes of anticipated litigation. The case addresses the limits of Article 8 protection in the employment context and the relevance of the parties' respective intentions.
Open justice and private hearings in the Companies Court. The Court of Appeal upheld the refusal of an application for court hearings to be held in private. The court reaffirmed that the open justice principle is paramount and that reputational damage, without more, is not a sufficient basis for derogating from it. The burden lies on the applicant to establish by clear and cogent evidence that a departure from open justice is strictly necessary. The court also addressed the intersection of Articles 6, 8 and 10 ECHR.
Data protection and disclosure of police officers' personal data to the press. The Northern Ireland Court of Appeal held that personal data of police officers may be disclosed under freedom of information legislation subject to a public interest test. The case addresses the balance between transparency, public accountability, and the privacy rights of public servants under data protection law.
Restricted reporting orders in the employment tribunal. Simler J (as she then was) upheld a restricted reporting order under section 12 of the Employment Tribunals Act 1996 where the claimant had been subject to serious harassment. The court conducted the full balancing exercise between open justice and the claimant's right to protection from further harm. The case is a leading authority on the circumstances in which RROs are justified in ET proceedings.
Anonymity orders in the employment tribunal. The EAT allowed the BBC's appeal against a permanent anonymity order. Simler J held that the ET judge erred in relying on the risk of public misunderstanding of unproven sexual allegations as a basis for permanent anonymity after judgment; this was not a valid reason for derogating from open justice. The default position is that tribunal judgments should be published in full, including the names of parties. Once the only factor relied on was disregarded as invalid, there was no rational basis for anonymity.
Privacy orders; restricted reporting orders; open justice. Rule 50(4) ET Rules 2013 (now rule 49(4)) provides a freestanding power enabling any person with a legitimate interest to seek discharge of a restricted reporting order at any time, including after withdrawal or confidential settlement of the underlying claim. There is no temporal limitation; rule 51 (claim comes to an end on withdrawal) does not restrict this collateral process. Separately, rule 50(1) confers a wider power than the prescriptive regime under ss.11–12 ETA 1996: an order made under it can extend beyond the end of proceedings. Balancing exercise restated: burden lies on applicant by clear and cogent evidence; comparative importance of Arts 6, 8 and 10 ECHR must be assessed with proportionality applied to each; open justice and freedom of expression carry strong presumptive weight.
Privacy injunctions and the 'blue pill' principle. The Court of Appeal refused to discharge a privacy injunction even though the information had been published extensively online and in foreign jurisdictions. The court held that the fact of widespread internet publication does not automatically remove the protectable quality of private information. The impact of publication in this jurisdiction remained a relevant consideration, and the balance between Article 8 and Article 10 fell in favour of maintaining the injunction.
Anonymity of mental health patients in judicial review proceedings. The Supreme Court held that there is no automatic presumption of anonymity for psychiatric patients in High Court proceedings. Whether anonymity is justified depends on whether it is necessary in the interests of the patient, balancing open justice against the risk of harm to the therapeutic relationship, the chilling effect on patients' willingness to seek review, and the public interest in knowing how such cases are decided. The case addresses the intersection of open justice and the vulnerable status of mental health detainees.
Anonymity of suspects prior to charge; Art 8 ECHR vs Art 10. The Supreme Court held that the identification of a person under investigation prior to charge is not automatically a breach of Article 8. The court must undertake an intense focus on the comparative importance of the specific rights being claimed in the individual case, taking into account the justifications for interfering with or restricting each right, and applying the proportionality test to each. The fact that publication may cause serious damage to reputation is not, without more, determinative.
Legal advice privilege; iniquity exception; redundancy selection advice. The CA (Sir Terence Etherton MR, Lewison and Bean LJJ) allowed the employer's appeal and restored the ET's ruling: an in-house email advising on including the claimant in a redundancy exercise was standard advice regularly given by employment lawyers, not advice to act in an underhand or iniquitous way, so it remained privileged and could not be relied on; an overheard pub conversation could not be used as an aid to its interpretation. Subsidiary point: anonymity in the Court of Appeal is a matter for that court — the EAT's anonymity order could not bind it, and the employer's application was refused.
Open justice and non-party access to court documents. The Supreme Court held that the court rules are a minimum, not an exhaustive code, and that courts at all levels have an inherent jurisdiction to allow non-party access to documents in accordance with the principle of open justice. The two principal purposes are: (1) enabling public scrutiny of judicial decision-making, and (2) enabling the public to understand how the justice system works and why decisions are taken. The default position is that access should be permitted where documents have been placed before the court and referred to during the hearing.
Procedure; register of judgments; rule 50 anonymity. The EAT (HHJ Eady QC) held the ET has no power to exclude or remove a judgment from the public register — rule 67 requires every judgment and written reasons to be entered, subject only to rules 50 and 94 — and the ET had properly exercised its rule 50 discretion in refusing anonymisation, the applicant having failed to displace the open justice principle.
Anonymity in the employment tribunal; re-hearing. The EAT held that the principles governing anonymity orders apply with equal force to re-hearings as to original hearings. A fresh balancing exercise is required, taking into account any changed circumstances and the continued relevance of the factors that justified anonymity initially. The case confirms that the passage of time and the procedural history do not diminish the need for proper Article 8/Article 10 analysis.
Anonymity in family proceedings; risk of serious harm. The High Court held that anonymity was necessary where disclosure of the parties' identities would put them at risk of serious physical harm. The open justice principle yielded to the paramount need to protect the welfare and safety of vulnerable individuals. The case illustrates the outer limits of open justice where Article 2 and Article 3 rights are engaged.
Privacy orders; open justice; interim relief hearings. An application for interim relief under s.128 ERA 1996 is a 'complaint' within rule 1(1) ET Rules 2013; its determination involves a 'preliminary issue' within rule 53(3) (a substantive issue that may determine liability), so by operation of rules 53, 56 and 95 the hearing must be conducted in public absent a rule 50 order. A rule 50 (now rule 49) order based on commercial embarrassment or financial harm requires circumstances where publicity would have catastrophic consequences such that justice simply could not be done, full, frank and totally compelling evidence is required. Evidence going no further than commercial embarrassment is insufficient. Open justice is a fundamental common law principle; where the rules are ambiguous it resolves in favour of a public hearing.
Anonymity and privacy orders (now Rule 49, formerly Rule 50); the EAT allowed an appeal against refusal of an anonymity order where the judge had failed to conduct the balancing exercise, had not directed himself to the rule or the open justice principle, and had failed properly to take account of new GP evidence that the lack of anonymity had worsened the claimant's mental health to the point of a risk of self-harm. Substantive medical evidence carries real weight in the balance.
Privacy and anonymity orders (now Rule 49, formerly Rule 50); the Court of Appeal upheld the EAT's order remitting a refused privacy application: a party's subjective fear of harm supported by a reasonable evidential foundation can engage the interests of justice, and objective proof of a specific threat is not required. Open justice remains the default and the burden on the applicant is real.
Privacy orders; SOAA 1992; limits of statutory anonymity. The EAT held that the anonymity protection under s.1 Sexual Offences (Amendment) Act 1992 does not apply where the claimant has never made a formal allegation of a sexual offence in the context of criminal proceedings. To be contrasted with AYZ v BZA [2025] EAT 91, where criminal proceedings had been brought and the SOAA protection was engaged.
Anonymity orders under Rule 50 (now Rule 49) ET Rules. The EAT held that the ET erred in failing to consider a second anonymity application on its merits and instead treating it as a reconsideration of an earlier refused application. Bruce Carr KC granted anonymity where claims were compromised, there was no press interest, and the claimant had produced a disability impact statement. The EAT emphasised that changed circumstances (including compromise of claims and production of medical evidence) may justify revisiting an earlier refusal of anonymity, and that the interference with open justice is limited where no full merits hearing has taken place.
Anonymity in defamation and harassment proceedings. The High Court granted an anonymity order where the claimant's mental health would be severely affected by publicity, and there was a real risk of further harm. The court applied the intense focus test, balancing the claimant's Article 8 rights against the defendant's Article 10 rights and the open justice principle. The case demonstrates the approach to anonymity where vulnerable individuals are involved in civil proceedings.
Open justice; publication of judgments; rule 50. The Court of Appeal ([2019] EWCA Civ 1417, Bean LJ) held that rule 50 does not permit an employment tribunal to direct that its judgment never be published or entered on the register, even where a disabled claimant contends publicity would cause serious embarrassment: anonymisation and targeted redaction are the proper protections, and redacting the disabilities founding the claim would fundamentally undermine understanding of the judgment.
Privacy orders; anonymity; disability; correct legal test. The ET had set too high a bar in refusing anonymity to a claimant with autism spectrum disorder (Asperger's syndrome) who feared his disability would become public and permanently damage his employability. The correct test (derived from Millicom Services UK Ltd v Clifford [2023] ICR 663, Warby LJ) is whether the applicant's subjective concerns, even if not objectively well-founded, were such as would prejudice the administration of justice if the order were not made. The ET erred by requiring objective proof of future professional harm; medical evidence cannot address stigma-based employability fears, and the fact that the claimant had since obtained employment was irrelevant without knowing whether the new employer was aware of the disability. EAT substituted its own decision: only one possible outcome on the evidence, anonymity for both parties granted. Anonymisation of the respondent was necessary to prevent identification of the claimant by association.
Procedure; anonymity; Tribunal was wrong to refuse Rule 50 order without allowing claimant time to obtain medical evidence.
Privacy orders; SOAA 1992; jigsaw identification. The EAT held that where a formal allegation of sexual assault has been made to the police, the employment tribunal is required to grant permanent anonymity to the complainant in accordance with s.1 Sexual Offences (Amendment) Act 1992, even where the sexual offence is not the subject matter of the employment tribunal claims. The risk of jigsaw identification (a reader of a tribunal judgment linking a named claimant to the sexual offence via the nature and origins of a disability) was sufficient to engage the statutory protection. Where the SOAA applies, compliance is mandatory and admits of no balancing exercise.
Anonymity and open justice in employment tribunals. Cavanagh J summarised the authorities on Rule 50 (now Rule 49) applications, confirming the approach to derogations from open justice including anonymisation. The same approach applies in ET claims as in any other type of claim; the burden rests with the party seeking derogation; and the ET must undertake an intense balancing exercise between Articles 8 and 10.
Open justice; third-party confidentiality; redaction of public judgments. Derogations from open justice by redaction arise only where the interests of justice themselves require it (Scott v Scott), on a fact-sensitive balancing; generalised assertions of commercial confidentiality are not enough — specific evidence is needed to justify each redaction, and the court ordered a less-redacted judgment. Also holds that a third party may invoke the slip rule (CPR 40.12) to correct accidental errors in a judgment. Read across to ET rule 50/49 privacy applications as current Court of Appeal guidance on redaction.
Restricted reporting orders; rule 50 balancing; open justice. When deciding whether to make an RRO the ET must give full weight to the principle of open justice under rule 50(2); an order granted without doing so was set aside and remitted, though rule 50 is not confined to cases where publicity would prejudice the administration of justice. Any RRO in a sexual-offence-allegation case should not extend beyond promulgation of the liability decision, the claimants being separately protected by s.1 Sexual Offences (Amendment) Act 1992; the claimants' anonymity appeal was dismissed.