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“Where there is no publicity there is no justice” – so said the philosopher and jurist Jeremy Bentham when regarding upon the nature of open justice. It is a tenant that lies at the heart of our justice system; things should not be done behind closed doors, and the public must have access to the system if it is to work properly. However, there are often cases where anonymity is important. An obvious case is in the criminal courts, where the proceedings relate to a minor. Another such example, as in the case of Christie v Weiss & Ors, is where there is a contended breach of someone’s rights under Article 8 of the European Convention on Human Rights: the right to respect for private life.

The factual background

The initially claim related to sex discrimination and harassment, and was brought by Ms Christie, who is a former employee of the Respondent law firm. In the Claimant’s witness statement and trial bundle, she referred to a corporate client of the Respondent’s, and an individual who worked for that client.

At a preliminary hearing, the judge made an anonymisation order directing that the client be referred to as ‘A’, and the individual as ‘Mr L’. The judge’s reason for doing so was that the client and individual were not parties to the case, merely referred to in evidence. He also indicated that anonymising their names would not impede the case in any material way. Thirdly, he found that there was not a public interest in the names being published, and therefore the Article 8 rights of the individual and company ought be borne in mind

The appeal

The Claimant appealed to the EAT, and the appeal came before HHJ Auerbach, in chambers. HHJ Auerbach concluded that the Tribunal had erred in law by giving the anonymisation order. He elucidated that, although the judge had correctly started with the principle of open justice, and therefore had to consider whether Article 8 rights were engaged, there was no actual fact-specific consideration of those rights, and to what degree they may be infringed. That meant that the judge could not properly complete the balancing exercise, as he had not identified what might go into the scales on either side. HHJ Auerbach also concluded that the judge had got the point on public interest wrong: the public interest in a dispute about whether the Respondent put protection of client relations above the interests of an employee in a matter related to sex, had not been considered.

The decision of the Employment Appeal Tribunal

As such, the appeal was allowed. HHJ Auerbach also concluded that he was well-placed enough to substitute his own decision rather than remitting it to the Tribunal. This was because he was furnished with all of the same facts that were available to the Tribunal, and that, applying the law correctly, only one outcome was possible.

That outcome was that, in the principles of open justice, the matters passed the threshold of being in the public interest, and as such the open justice principle should not be derogated from, even though the derogation would be slim. No evidence was presented to support the fact that the Article 8 rights of the client or individual were engaged and carried such weight as to derogate from open justice.

Link to judgment: https://www.bailii.org/uk/cases/UKEAT/2020/0036_20_2705.html

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