Willford, R (On the Application Of) v Financial Services Authority

On 20^th and 21^st February 2013 the court heard an appeal by the Financial Services Authority (“FSA”), now the Financial Conduct Authority, against an order of Silber J. quashing a Decision Notice given to Mr. Christopher Willford under section 67 of the Financial Services and Markets Act 2000. The hearing before Silber J. was conducted in private and the judgment was published in a redacted and anonymised form in order to ensure that Mr. Willford’s identity was not disclosed. At the beginning of the hearing of the appeal we were asked to hear the matter in private, but we declined to do so. However, we did make an order prohibiting until further notice the identification of the respondent or the reporting of any information that might lead to his identification.

Draft judgments were prepared and made available to the parties on 1^st May 2013. No attempt was made in the drafts to conceal Mr. Willford’s identity in order that the parties could understand clearly how the court intended to express its decision, but that was drawn to the parties’ attention when the drafts were made available and Mr. Willford was given the opportunity to apply to the court for an order that the judgment be published in a form that did not reveal his identity. In the event he has applied for an order that our judgments be published in a redacted and anonymised form. Both parties have filed written submission setting out their arguments in support of and against the application, for which we are grateful.

In support of the application Miss Rose Q.C. and Mr. Jaffey relied on the statutory provisions which prohibit the FSA from disclosing the existence of an investigation, its progress or its outcome until it has reached its conclusion, and then only if it culminates in some form of sanction. They pointed out that in the present case the FSA was obliged not to disclose Mr. Willford’s identity until it had given him a Final Notice confirming a Decision Notice given under section 67 of the Act. The respondent could have challenged the Decision Notice before the Upper Tribunal, but since its proceedings are held in public his identity would have been disclosed sooner or later. However, the purpose of these proceedings is to have the existing Decision Notice quashed. Mr. Willford has failed to achieve his objective in this court, but he is seeking permission to appeal to the Supreme Court and counsel have submitted that his identity should not be made public until the proceedings have been finally determined. They say that if they are ultimately successful and the Decision Notice is quashed, the proceedings before the FSA will not have reached the stage at which his identity can be revealed. Behind these submissions lies the implicit assertion that disclosure of Mr. Willford’s identity would cause irreparable damage to his professional reputation.

Mr. Brindle Q.C. and Mr. Allen for the FSA have submitted that this application raises important questions of principle, in particular, the principle of open justice. They argue that the appeal raises important questions relating to the conduct of disciplinary tribunals and that publication of the judgments in full is necessary to enable anyone who reads them properly to understand the nature of, and the basis for, the court’s decision. They also suggest that the Supreme Court is unlikely to hear any appeal in this matter in private, so that Mr. Willford’s identity will be disclosed in any event.

In my view, the starting point is the principle of open justice, that is, the principle that proceedings are to be conducted and determined in public. One aspect of that principle is that judgments should be published in full without concealing the identity of the parties or others involved, whether by anonymisation or redaction. However, the principle is not absolute and must give way to the requirements of justice and other countervailing considerations of public interest. For example, judgments in criminal proceedings are frequently anonymised in order to protect the identities of children. In civil cases between adult parties, however, the public interest in open justice will usually outweigh other considerations, except where publication would significantly undermine the effectiveness of any relief the court might grant.

There has been some concern in recent years that courts have been too ready to encroach on the principle of open justice, particularly in the context of injunctions against the media. In May 2011 a committee under the chairmanship of the then Master of the Rolls, Lord Neuberger of Abbotsbury, published a report on so-called “super-injunctions”, in which the role and importance of the principle of open justice was considered. The summary of the committee’s conclusions and recommendations included the following passage:

“(2)

The Principle of Open Justice

The principle of open justice is a fundamental constitutional principle, although it is not an absolute principle. It applies to interim injunction applications as it does to trials.

Derogations from open justice can only properly be made where, and to the extent that, they are strictly necessary in order to secure the proper administration of justice.

Applications for such derogations must be supported by clear and cogent evidence, and should be subjected to careful scrutiny by the court. Where a derogation is appropriate the court should consider what information can properly be put into the public domain. Without such consideration it is not possible for the court to ensure that any derogation from open justice is the minimum necessary to secure the proper administration of justice.”

Mr. Brindle has drawn our attention to a passage in the judgment of Lord Neuberger in Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770 where he said:

“66.

I consider, therefore, that the present appeal provides a good opportunity for this court to make it clear that a private hearing or party anonymisation will be granted in the Court of Appeal only if, and only to the extent that, a member of the Court is satisfied that it is necessary for the proper administration of justice.

67.

The fact that the first instance judge granted or refused to permit a private hearing or anonymisation cannot be conclusive of such issues in the Court of Appeal (although the judge’s refusal of such relief will, in most cases, render any subsequent application on appeal pointless). A first instance judge’s decision on such an issue self-evidently does not bind the Court of Appeal, and cannot determine how an appeal in this court proceeds. However, this court would normally pay close regard to the judge’s decision, especially if expressed in a reasoned judgment. Nonetheless, in relation to appeals, the Court of Appeal should not depart from the general rule that litigation is to be conducted in public, unless a judge of that court is persuaded that there are cogent grounds for doing so.”

Although the judge below took steps to prevent Mr. Willford’s identity from being disclosed, his decision is not binding on this court, as Lord Neuberger observed in Pink Floyd, and in any event it is not clear to what extent he had the benefit of hearing submissions on the importance of the principle of open justice. Anonymisation and the redaction of judgments both represent derogations from that principle which must be justified, on the basis of cogent evidence, as strictly necessary in order to secure the proper administration of justice. In the present case the FSA was performing a disciplinary function. No doubt its proceedings would have been embarrassing for Mr. Willford if his identity had been made public and it may be that they would have caused some damage to his professional reputation (though if they had culminated in a decision to take no action against him that might have been slight), but he would not have been entitled to have his identity protected on those grounds if, for example, he had for some reason been facing criminal charges, which could have had a similar effect. Nor is there any positive evidence that he will suffer significant harm if the existence of the proceedings is disclosed at this stage. It is true, however, that if he were to obtain permission to appeal to the Supreme Court and succeed in having the Decision Notice quashed, he would have lost the right to have his identity protected pending the outcome of the disciplinary proceedings and perhaps (if he were ultimately to persuade the FSA that no sanction should be imposed on him) for all time.

The question, then , is whether in those circumstances it is strictly necessary in the interests of justice to anonymise and redact our judgments in order to protect the respondent’s identity. In my view it is not. The redactions proposed by counsel for Mr. Willford are extensive and go to the heart of the judgments. The anonymisation is, of course, complete. The principle of open justice requires that the court’s judgment should be published in full unless there are overriding grounds for not doing so. Although the FSA disciplinary proceedings were private, once the respondent stepped outside those proceedings, whether by referring the matter to the Upper Tribunal or by making a claim for judicial review, he brought the matter into the public forum where the principle of open justice applies. That may happen in other contexts. Parties to arbitration proceedings, for example, are entitled to have the confidentiality of those proceedings maintained, but if one party invokes the assistance of the court, perhaps by appeal or by an application to set aside the award, the court will not normally take steps to preserve the confidentiality of the proceedings or their subject matter.

If anonymisation and redaction of the judgment were necessary in this case in order to enable the court to grant effective relief, the position would be different, but the primary object of these proceedings is not to protect Mr. Willford’s privacy; it is to ensure that the procedure adopted by the FSA complies with the statutory requirements and to quash the existing Decision Notice to enable the FSA to reconsider the matter. In those circumstances I am not persuaded that it is strictly necessary in the interests of justice to publish our judgments in a form that will prevent his identification and I would therefore dismiss the application.

I agree.

I also agree.