Full case report
Graiseley Properties Ltd v Barclays Bank Plc
Reference  EWHC 67 (Comm)
Court High Court (Commercial Court)
Judge Flaux J
Date of Judgment 30 Jan 2013
Disclosure – confidentiality – anonymity of non parties – open justice – Article 10 – reputational harm to non parties
The Claimant company owned care homes which had purchased interest rate swaps from the Defendant Bank. The Applicants, named as various employees and ex-employees of Barclays Bank Plc, were staff who, while working at the D, had been in some way implicated in the fixing of the LIBOR rate. The Interveners were media organisations which included the Daily Telegraph, The Times and others. The litigation is the first to involve a claim for mis-selling based on manipulation of the LIBOR rate, and, as such, will be likely to define the scope of many similar future claims.
The instant hearing followed a Case Management Conference before the same judge, in which one of the issues relating to electronic disclosure was which email accounts of Barclays employees should be subject to searches. British and American regulators had previously published Notices concerning the manipulation of LIBOR by D, anonymising the individual employees. These individuals fell into two categories: those whose email accounts had been reviewed by regulators, and those who had been implicated in the manipulation itself. At the CMC, the Judge ordered the disclosure of both a “Long List” naming the former, and a “Short List” naming the latter.
The part of the hearing concerning the Lists had been held in private, pending the D’s application for confidentiality orders in relation to the proceedings, including one for the maintenance of the individuals’ anonymity until trial, and for reference to them at interim hearings by a code. This was dismissed, but with time allowed for the As and regulators (who were not represented) to make representations on the order.
They did so, the US Department Of Justice writing to the court inviting it to maintain the As’ anonymity in light of an ongoing criminal investigation. Written representations were served on the As’ behalf which did not reveal their identities, although the Judge ordered at the end of the hearing, that they should be named. Orders were sought that references in open court, documents filed or served, and any statements made should preserve anonymity.
The Is were offered the chance to and did serve written representations, and also made oral submissions at the hearing. They relied on Article 6 and Article 10, pointing out that the As could not rely on Article 8 because the case concerned their professional activities rather than their private lives. They also referred to the media’s right to report contemporaneously, reporting proceedings as they choose to, and to the interaction between Article 10 and the general principle of open justice.
The C made written representations and written and oral submissions opposing the application. The D also made written and oral submissions.
Should the names of individuals and particulars which might lead to their identification, along with the lists and any code or key used at any hearing, be published to anyone not involved in the litigation?
Dismissing the application
The As could not begin to establish by clear and cogent evidence that anonymisation, a derogation from the general principle of open justice, was strictly necessary to secure the proper administration of justice. The Judge based his conclusion on a number of reasons:
(1) Identification of the individuals would not prejudice ongoing criminal investigations. Even if there was a risk of such prejudice, this would have been a point only for the individuals at risk of being the subject of an investigation, not for those whose emails had simply been provided to the authorities.
(2) D had referred to misleading reporting connecting all the names with the manipulation, but, given the clarification given to the in open court about who had in fact been involved, it appeared to the Judge that open justice would make uninformed and inaccurate reporting less rather than more likely.
(3) An analogy with regulatory investigations was inapt: these do not take place in a public forum, and open justice does not apply. Further, none of the individuals had argued that they had been incorrectly named, this fact meeting the concern that allowing them to be named at this stage in proceedings was unfair.
(4) There was no general exception to the principle of open justice, to protect non-parties from identification in proceedings to avoid the risk of reputational harm, this being what the submission on unfairness amounted to. The Judge considered the practical consequences of allowing anonymisation in cases where allegations of wrongdoing are made, suggesting that the approach argued for would soon subvert open justice.
Although the application fell at the first hurdle, the Judge went on to set out three principal additional reasons for which he would still have concluded that the order sought was not necessary for the proper administration of justice.
(5) The order proposed would have impeded the C in its preparation and presentation of the case, and would have been inimical to the overriding objective under the CPR. The C would have suffered prejudice and inconvenience in devising and implementing a suitable code.
(6) The identity of some of the individuals was already in the public domain; an anonymity order in relation to those already named would be absurd.
(7) The litigation was a test case, with the D’s involvement in manipulation of LIBOR only part of a bigger picture involving other banks. There was a legitimate public interest in the true picture emerging.
Finally, the Judge held that the wide-ranging nature of the anonymity order sought was disproportionate.
The specific status of this litigation as a LIBOR-manipulation test case brought the public interest, and the position of the media interveners, into particularly sharp focus. The decision reiterates the widely-recognised need for the media to be able to name individuals in the course of reporting proceedings as they choose.
It is nevertheless exhaustive in its approach to the general question of whether an exception to the principle of open justice exists, at the interlocutory stage or otherwise, which allows for anonymisation of non-parties to protect them from reputational harm. The courts will, as some of the authorities relied on by the C made clear, derogate from the principle by granting anonymity where strictly necessary, but any approach which threatens to undermine it more widely is unlikely to find favour. In line with the recent guidance on interim non-disclosure orders, this is as significant at the interlocutory stage as a trial.
The Judge framed the question in terms of the public interest in the administration of justice in contrast with the private welfare of those caught up in that administration. The question of whether any derogation was “necessary” evoked both the test at common law and the language of the ECHR, Articles 6 and 10 being referred to. But the Judge did not hold that the As’ Article 8 rights were engaged, or that any balancing test was required, in respect of emails sent in the course of the individuals’ employment, or of their reputational rights more generally.
Cooke Young & Keidan, Clifford Chance, Morrison and Foerster
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