Open Justice – In Private Hearings – Application to have judgment handed down in private – CPR Part 39.2(3) – Medical information relating to witness – Article 8 – s.11 Contempt of Court Act 1981
As part of the long-running saga of the BCCI dispute, the Bank of England applied for an order that a judgment to be handed down by the Court ([2005] EWCA Civ 889) and further cross-examination of one of the Bank’s witnesses be carried out in private to protect disclosure of details of the medical condition of the witness.
Whether the handing down of the judgment and further cross-examination of the witness should take place in private
The private interests of the witness, although recognised to be legitimate and genuine, had to be balance against the public interest both in the administration of justice generally and the significant public interest in this case.
This case would perhaps now require and receive greater attention to the Article 8 rights of the witness than was paid by the original Court of Appeal. The Court could perhaps have fashioned a s.11 Contempt of Court Act 1981 order to prohibit publication of the specific details of the witness’s medical condition. This would have been a proportionate interference with the open justice principle and one justified by the need to give adequate protection to the legitimate interests of the witness. The reference to s.12(3) Contempt of Court Act 1981 in Paragraph 1 of the judgment (see link below) must be a mistaken reference to s.11 Contempt of Court Act 1981. s.12(3) relates to Magistrates’ Courts and had, in any event, been repealed.