Civil Litigation – Preventing private information from open court

To many of our clients, privacy is crucial and invaluable. However, we increasingly find that many of our clients are unaware disputes in court (more often than not) will become public domain.

The general rule is that civil hearings are held in open court (public) which means that each party’s “case” may be heard and accessible by the public. This follows the principal that justice should be seen to be done, which includes making it accessible to anyone.

We find that commonly a dispute will arise out of events that most of our clients would not want to be made public as it may contain sensitive information or damaging allegations that could cause damage to them personally or their corporate entities.

Protecting private information from becoming public knowledge and/or picked up in the press, is often an afterthought once proceedings are underway.

A recent example is the case of Holyoake v Candy, in which allegations were made about the London based billionaire property tycoon Candy brothers for extortion, blackmail, intimidation and breach of data protection legislation, which was highly publicised and reported on to the detriment of their personal reputation and commercially.

During a hearing Nick Candy told the Judge that their reputation had been dented as a result of the case coming before the Court: “Even if you find us completely innocent… the rest of our lives there is going to be a slight smell”. After the hearing, the Candy’s stated: “It has taken a great deal of time and effort to win this case and it has caused unwarranted damage to our personal and business lives.”(sic).

To avoid a case being heard in public an application has to be made for a Hearing to be held in private. The limited grounds for applying to the Court to hold a hearing in private include the following:

1.The Objective

A private hearing may be deemed necessary to protect any further publication of the matter. For example, in defamation, breach of confidence, publication of restricted material.

2.Confidentiality and Information relating to personal financial matters

Certain financial proceedings such as an application for a charging order, a third party debt order or the appointment of a receiver will usually be heard in private. This is because it may be deemed necessary, for example, if the applicant is trying to protect any dissemination of information.

3. Applications ‘Without Notice’

Urgent applications such as freezing injunctions or search orders are mostly made without notice to the potential Defendant. The potential Defendant is often not made aware of the hearing to avoid them having time to hide assets, which would defeat the objective of the hearing.

As in all cases, when determining whether or not a hearing should be held in private, the court will consider the facts of the case to determine whether it would be in the interest of justice to hold the hearing in private.

Whether you are bringing an action or defending a claim, it is important that this risk is evaluated and preventative steps be considered from the outset.

We try to avoid our clients having to go through the court process by seeking alternative dispute resolution (a process taking place outside a court to resolve a dispute) where applicable. Moreover, there are other ways party’s may reach an agreement outside of the Court room in a manner in which confidentiality can be protected.

If however the matter does reach the court, there are other methods to protect your information from being public which include making applications to restrict the publication of the Judgement, and restrict access of non-parties to court documents, should it be required.

Should you require further information on this article, please contact us, a member of our litigation team would be happy to assist you.

We also have a specialised team of reputation consultants who deal with crisis management in wide a range of sectors.

Case reference: Candy & Ors. v. Holyoake & Hotblack Holdings Ltd [2017] EWCA Civ 92

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