Court of Appeal takes strict approach on private hearings

In a recent judgment, the Court of Appeal has taken the opportunity to clarify that a private hearing or party anonymisation will be granted in the Court of Appeal only if, and only to the extent that, the court is satisfied that it is necessary for the proper administration of justice: Pink Floyd Music Ltd and another v EMI Records Ltd [2010] EWCA Civ 1429.

The appeal had been listed to be heard in private under the case name "P v E" on the basis of the alleged commercial sensitivity of a royalty figure in the relevant agreement. The court expressed some doubt as to whether even that aspect of the case justified secrecy or redaction, but said that in any case it did not justify having any part of the hearing in private, let alone anonymising the parties. To protect against disclosure, the royalty figure was referred to in court, and in the judgment, only as "XX", and in case it was inadvertently mentioned in open court, the court ordered that no reference to the figure could be made outside court. It also made an order restricting public access to the court documents.

The court noted that a first instance judge's decision to grant or refuse a private hearing or anonymisation can not be conclusive of such issues in the Court of Appeal. It said the Court of Appeal will normally pay close regard to the judge’s decision, but should not depart from the general rule that litigation is to be conducted in public unless persuaded that there are cogent grounds for doing so.