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On 26 January 2023, the Court of Appeal handed down an important judgment on the scope of Rule 50 of the ET Rules of Procedure and the Tribunal’s power to order derogations from the principle of open justice.

The Court of Appeal dismissed C’s appeal and allowed Rs’ cross-appeal, concluding that the ET erred in its determination of Rs’ application for an order under Rule 50 which sought to prohibit the public disclosure or reporting of certain sensitive information contained in C’s claim documents, in order to protect the safety and security of non-participants in the proceedings. It concluded that the EAT was right to order the redetermination of the application under all three limbs of Rule 50, namely, (i) the interests of justice, (ii) to protect a person’s Convention rights and (iii) to protect confidentiality. The CA concluded that the evidence placed before the ET provided a sufficient objective basis for the fears expressed by the Millicom parties, and that the ET and EAT both erred in finding otherwise. Among other things, the Court of Appeal held that:

  • the ET erred in giving no separate consideration to the common law ‘interests of justice’ limb of Rule 50, and wrongly treated the Convention analysis as decisive of the application under the interests of justice limb.
  • the ET erred in failing to consider whether R2’s subjective fears were enough to engage Article 8.
  • the ET erred in failing to conduct a proper balancing exercise, either under the common law or Article 8.
  • the ET erred in failing to address the question whether it was in the public interest for C’s express contractual duty of confidence to be breached by disclosure in the proceedings of confidential matters acquired in the course of his employment.

The CA judgment confirms that analysis of the common law ‘interests of justice’ limb of Rule 50 is distinct from, and may yield a different answer to, a Convention analysis. The interests of justice limb is wide enough to permit derogations from open justice to protect the safety or security of persons outside the jurisdiction and who are neither witnesses nor parties to the litigation. It is also wide enough to encompass a person’s subjective fears of risk of harm. In conducting a balancing exercise, the CA confirmed that the ET must weigh in the balance the extent to which the derogation sought would interfere with the principle of open justice, the importance to the case of the information which the applicant seeks to protect, the role or status within the litigation of the person whose rights or interests are under consideration, and the harm which disclosure would cause.

The CA judgment contains a useful discussion of what is meant by “objective evidence” to support the application for derogation under Rule 50. The CA found that the EJ’s description of the evidence of risk of harm as “speculative” and “not objective” to be perverse in light of the nature of the evidence given.

Further, in relation to the confidentiality limb of Rule 50, the CA emphasised that the ET must have regard to the question whether it is in the public interest that a duty of confidence should be breached, giving significant weight to the importance of the observance of duties of confidence (especially express contractual duties of confidence as in this case), and taking into account the nature of the information and the relationship involved. The ET’s failure to do so in this case was an error of law.

Tom Hickman KC and Catherine Callaghan KC acted for the successful Respondents.

A copy of the judgment is here.

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