Privacy and Trust Claims – are hearings held in private coming to an end?
The Lord Chief Justice has exalted the virtues of open justice: “Justice that is not open is not good justice”. English Courts have never been an overtly secret place. Nevertheless, trusts practitioners have perhaps grown used to hearings taking place ‘in chambers’, ‘in camera’ or (more recently) ‘in private’. That, together with the use of sealed court files and anonymised transcripts has led to a perhaps implicit belief that trust business will be conducted with no, or very little, publicity. This has suited us, our clients are (by definition) private and the substance of chancery applications is very often their private business. This trend, though, is coming to an end.
In recent times practitioners have noticed a marked reluctance for Chancery Judges to hear applications wholly in private. This reluctance has now been confirmed in the recent decision of Mr. Justice Morgan in the (aptly named) V v T and A  EWHC 3432. The matter concerned a variation of a trust under the Variation of Trusts Act 1958. The parties applied (as is standard practice) for the application to be heard in practice. The variation was granted with relatively little fuss. The application for privacy was not. Morgan J. said, amongst other things that:
- Open justice is a fundamental principle which the Court can derogate from only in exceptional circumstances which are strictly necessary.
- There is no general exception to open justice in cases where privacy or confidentiality is in issue. Courts will only sit in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must then be no more than is strictly necessary.
- The fact that a public hearing may be painful, humiliating or a deterrent either to a party or a witness is not normally a proper basis for departing from the principle of open justice. The interest being protected is that of the public, not that of the party or the witness.
- In the case of applications under the Variation of Trusts Act it has for some time been recognised that it is important for decisions to be publicized in order for there to be a consistent approach to decisions
As a consequence the hearing took place in public. However, consistent with a need in that case to protect the identity of minors involved, reporting restrictions were placed upon the case and the judgment itself has been anonymised.
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This trend will continue in all forms of chancery applications. Even where hearings do take place in private (and note the provisions of CPR 39.2) Judges will restrict that privacy to the extent absolutely necessary. Clients need not fear that their sensitive personal or private information will automatically be exposed but they should be warned that there will, in all probability, be reporting of the fact of the hearing, of the argument and of the judgment.
For future applications practitioners need to take care that only in those cases where they genuinely expect the hearing to be in private, or for the judgment to be anonymised, should they seek a listing as such from the listing office.
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