Practice Guidance (Interim Non-disclosure Orders): 1 Jul 2011

The Court gave guidance setting out recommended practice regarding any application for interim injunctive relief in civil proceedings to restrain the publication of information (referred to as an interim non-disclosure order). In particular guidance was provided as to ‘the proper approach to the general principle of open justice in respect of such applications’.
Applications which seek to restrain publication of information engage article 10 of the Convention and section 12 of the Human Rights Act 1998 (‘HRA’). In some, but not all, cases they will also engage article 8 of the Convention. Articles 8 and 10 of the Convention have equal status and, when both have to be considered, neither has automatic precedence over the other. The court’s approach is set out in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17.
Open justice
Open justice is a fundamental principle The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR r 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (2009) 50 EHRR 920, para 75ff; Donald v Ntuli (Guardian News and Media Ltd intervening) [2011] 1 WLR 294, para 50.
Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice They are wholly exceptional: R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald v Ntuli [2011] 1 WLR 294, paras 52-53. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M v W [2010] EWHC 2457 (QB) at [34].
There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard 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 be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EMLR 419, paras 50-54. Anonymity will only be granted where it is strictly necessary, and then only to that extent.
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence . . Scott v Scott [1913] AC 417, 438-439, 463, 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, paras 2-3; Secretary of State for the Home Department v AP (No 2) [2010] 1 WLR 1652, para 7; Gray v W [2010] EWHC 2367 (QB) at [6]-[8]; and H v News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645, para 21.
When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings . . On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled.’

Judges:

Lord Neuberger of Abbotsbury MR

Links:

Judiciary

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 May 2022; Ref: scu.575242