Open Justice in the Modern Age

On 2 July 2025 I delivered the Bar Council’s annual law reform lecture. It was an abridged version of a substantial monograph detailing the history and current state of the open justice principle in the family law sphere. A link to a recording of the lecture and to the monograph is here. Although there will be some overlap between that lecture and today’s, I believe that it will be limited as I am not going to speak to any great extent on the very unhappy relationship between family law and the open justice in England and Wales. The two lectures should be seen as complementary. Note: Where added emphasis is used (bold) it is always mine. None is in the original text.

Contents

• I Prologue
• II The Origin and Development of the Open Justice Principle
• III Family Relationship Disputes
• IV Scott v Scott: the principle and the derogations
• V Anonymisation
• VI Rules of Court
• VII Open doors in the modern age
• VIII The Court of Protection
• IX Reform
• X Small jurisdictions which guarantee financial confidentiality
• Annex 1

I Prologue

Lord Woolf in 1999 R v Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966 pithily summarised why open justice is indispensable:

‘it is … important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public’s confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties’ or witnesses’ identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.’

In July 2025 the Judiciary’s Transparency and Open Justice Board set out its key objectives:

‘Courts and Tribunals should promote open justice to enable the public to understand and scrutinise the administration of justice by Courts and Tribunals; and thereby seek to (a) uphold public confidence in the administration of justice; and (b) support improved public understanding of the constitutional role discharged by Courts and Tribunals in the administration of justice and the rule of law.

The overriding objective is that Courts and Tribunals should deal with cases justly. The principles of transparency and open justice generally require the proceedings and decisions of Courts and Tribunals to be open and accessible to everyone (including the public and the media) thereby supporting and promoting reports of proceedings and decisions of Courts and Tribunals.’

In Ministry of Defence v Global Media and Entertainment Limited & Ors [2025] EWHC 1806 (Admin), 23 November 2023 at para 24 Chamberlain J distilled the quintessence of the open justice principle:

‘Open justice is a cardinal constitutional principle, from which derogations can be justified only in exceptional circumstances, where strictly necessary as measures to secure the proper administration of justice. The grant of derogations is a matter of obligation, not discretion.’

CPR 39.2(5) requires that, unless the court otherwise directs, a copy of every anonymity order shall be published on the judiciary website. This requirement does not apply to family cases.

Between 1 April 2025 and 28 September 2025, an astonishing 716 anonymity orders were posted on the judiciary website. In his article ‘Anonymisation of civil judgments: a routine failure to follow open justice rules’ published on 10 March 2024 Paul Magrath shows that in 2023 in nearly 60% of cases where one or more parties had been anonymised there was not a corresponding anonymisation order published on the Judiciary website. The number of cases where anonymity has been ordered or recognised is therefore likely to be well in excess of 2,000 annually.

The standard order for anonymity

The anonymity orders posted on the judiciary website generally contain a recital stating that they are made:

Pursuant to CPR 39.2(4) and/or the Court’s inherent jurisdiction and/or s. 6 of the Human Rights Act 1998.

I will show that It is certainly incorrect to say that the Court’s power in any way derives from CPR 39.2(4). It is unlikely that the power exercised will have derived from sec 6 of the Human Rights Act 1998. It is almost certainly correct that the power in question derives from the common law, or put another way, from the inherent jurisdiction of the court. As will be seen, the court can only lawfully made an order for anonymity if it is satisfied by clear and cogent evidence that by nothing short of such an order can justice be done.

I would respectfully suggest that the standard order for anonymity should say:

Pursuant to the common law, the court being satisfied by clear and cogent evidence that by nothing short of an order for anonymity can justice be done:
 
a. the Claimant’s name is to be withheld from the public and must not be disclosed in any proceedings where the public at large or any section of the public is entitled to be present;
 
b. pursuant to s. 11 of the Contempt of Court Act 1981, there must be no publication of the identity of the Claimant or of any matter likely to lead to the identification of the Claimant in any report of, or otherwise in connection with, these proceedings. …

II The Origin and Development of the Open Justice Principle

The open justice principle has been recognised for centuries as one of the most important features of our constitution. It is a core element of the Rule of Law.

In Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47, Kirby P traced the history of the practice of open justice in English Courts back to Anglo-Saxon times. In a characteristically erudite judgment, he cited the record of the trial for high treason of Lieutenant-Colonel John Lilburne in 1649 (4 How St Tr 1269 at 1273) which contained Lilburne’s protest:

‘That by the laws of this land all courts of justice always ought to be free and open for all sorts of … people to see, behold and hear, and have free access unto; and no man whatsoever ought to be tried in holes or corners, or in any place, where the gates are shut and barred, and guarded with armed men: and yet, Sir, as I came in, I found the gates shut and guarded, which is contrary both to law and justice.

Kirby P records that the presiding judge, Richard Keble, Lord Commissioner, satisfied Lilburne that the doors stood open, by inference accepting that this was necessary. After a two-day trial, Lilburne (also known as ‘Freeborn John’ whose works inspired the Bill of Rights and the rights in the US Constitution) was found not guilty.

So well established was this principle that it was a foundational precept on the establishment of courts of justice in the American colonies. For example, the laws adopted in 1677 by the predominantly Quaker inhabitants of West New Jersey provided:

‘in all public courts of justice for trial of causes, civil or criminal, any person or persons, inhabitants of the said province, may freely come into and attend the said courts, and hear and be present at all or any such trials as shall be there had or passed, that justice may not be done in a corner, nor in any covert manner…’

In 1681 Sir Edward Coke, wrote in his Institutes of the Laws of England ‘all Causes ought to be heard . . . openly in the King’s Courts’. In 1685, Sir John Hawles, sometime Solicitor-General, commented that open proceedings were necessary so ‘that truth may be discovered in civil as well as criminal matters’ (Remarks upon Mr. Cornish’s Trial, 11 How.St.Tr. 455, 460, cited by Stewart J in Gannett Co. v. DePasquale, 443 U.S. 368 (1979) at p. 386, n. 15).

In the second edition of the State Trials published in 1730, the editor Sollom Emlyn included an extensive preface in which he examined the state of English law. He remarked, ‘the Courts of justice [in Europe] are held in secret; with us publicly and in open view’.

In the Commentaries on the Laws of England (1768), vol. III, c. 23, at p. 373, Blackstone stated:

‘This open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth, than the private and secret examination taken down in writing before an officer, or his clerk.’

The most influential advocate in favour of public justice was Jeremy Bentham (1747–1832). In 1790 he prepared and presented to the new National Assembly in France a plan for the Organisation of Judicial Establishments, compared with that of the National Assembly, with a Commentary on the Same (later updated and expanded in 1827 – see below), in which he wrote:

‘Judicial proceedings, from the first step to the last inclusive, shall, in all cases but the secret ones hereinafter specified, be carried on with the utmost degree of publicity possible.’

Interestingly, the secret cases he specified included those between husband and wife ‘for disobedience, extravagance, hard treatment, adultery, or impotence’ but where ‘it may be clear that neither the honour nor the peace of the parties litigant, or any of them, can be affected by the publicity of the proceedings, the same publicity shall be observed as in other cases’. He gave as an example

‘Any question of fact in any such cause not affecting the moral character of the party.’

In 1827 in his Rationale of Judicial Evidence he famously repeated and expanded his thesis (Book 2 Chapter X):

‘The advantages of publicity are neither inconsiderable nor unobvious. In the character of a security, it operates in the first place upon the deponent; and, in a way not less important ... upon the judge. …
 
In many cases, say rather in most (in all except those in which a witness, bent upon mendacity, can make sure of being apprised with perfect certainty of every person to whom it can by any possibility have happened to be able to give contradiction to any of his proposed statements), the publicity of the examination or deposition operates as a check upon mendacity and incorrectness. …
 
Publicity is the very soul of justice. It is the keenest spur to exertion, and the surest of all guards against improbity. Where there is no publicity there is no justice and under the pretence of justice, injustice itself is perpetrated. Publicity keeps the judge himself, while trying, under trial. In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. …
 
Nor is publicity less auspicious to the veracity of the witness, than to the probity of the judge. Environed as he sees himself by a thousand eyes, contradiction, should be hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress may through some unsuspected connexion burst forth to his confusion.
 
Without publicity, all other checks are fruitless: in comparison of publicity, all other checks are of small account. It is to publicity, more than to everything else put together, that the English system of procedure owes its being the least bad system as yet extant, instead of being the worst.’

In the Constitutional History of England in that same year of 1827 the historian Henry Hallam wrote:

‘Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.’

By the Supreme Court of Judicature Act 1873 Parliament wrought the great revolution whereby it fused law and equity (with equity having priority) and merged and consolidated all the common law courts, the statutory Divorce Court, and the Court of Chancery into the single High Court of Justice. Para 30 of the Schedule to the Act provided:

‘ In the absence of any agreement between the parties, and subject to any Rules of Court applicable to any particular class of cases, the witnesses at the trial of any cause or at any assessment of damages, shall be examined viva voce and in open court, but the Court or Judge may at any time for sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing or trial, on such conditions as the Court or Judge may think reasonable, or that any witness whose attendance in court ought for some sufficient cause to be dispensed with, be examined by interrogatories or otherwise before Commissioner or examiner; provided that where it appears to the Court or Judge that the other party bond fide desires the production of witness for cross-examination, and that such witness can be produced…’

In the Victorian era, therefore, everything was heard openly and openly meant that anyone in court could publish anything.

III Family Relationship Disputes

In order to understand Scott v Scott, it is necessary to have in mind what was happening in the arena of disputes in family relationships at the turn of the 19th century. There, common law actions like crim con were naturally heard in open court in the full glare of publicity. Even cases about children heard under the Custody of Infants Act 1839 Act and cases in lunacy (as the Earl of Portsmouth’s case showed) were often heard in public and of which the reports were full and unanonymised. The only partial exception was that in proceedings in the ecclesiastical court for judicial separation or restitution of conjugal rights, the evidence was taken in private by deposition, but once it was published in the proceedings either party could do what they wanted with it.

The openness principle in family cases was reflected in legislation. The Matrimonial Causes Act 1857 established the new Divorce Court, with the novel power to order that a marriage be dissolved. Sec 46 provided:

‘Subject to such Rules and Regulations as may be established as herein provided, the Witnesses in all Proceedings before the Court where their Attendance can be had shall be sworn and examined orally in open Court …

This rule had no exceptions, although, as will be seen, the House of Lords later admitted a handful of very narrow ones.

In Family Secrets: Living with Shame from the Victorians to the Present Day (Viking, 2013), Deborah Cohen, comments (at page 45), that:

‘Born at the same moment, the Divorce Court and the mass-circulation press were made for each other. The Divorce Court got the publicity to humiliate moral reprobates. The newspapers got the fodder they needed to power a gigantic leap into the mass market.’

From the very advent of the new Divorce Court there began a campaign to have ‘sensitive’ cases heard behind closed doors. Legislative attempts were made in 1857, 1859 , 1887, 1888, 1889 and 1896 to this end, but all failed.

Instead, the absolute prohibition in sec 46 was undermined by the judges. Nullity petitions were routinely (and we now know, unlawfully) ordered by Registrars to be heard in camera.

As will be seen, such an order was made in the case of Scott. It was tried in camera. Afterwards Mrs Scott obtained a transcript of the proceedings which she sent to her sister, her father and a friend. She was accused of contempt of court. This was found proven by Bargarve Deane J and her appeal to the Court of Appeal was dismissed. Her appeal to the House of Lords was allowed 5–0.

Meanwhile the Royal Commission on Divorce and Matrimonial Causes chaired by Lord Gorell commenced work on 10 November 1909. It examined 246 witnesses in public. Its Report (Cd 6478) was dated 2 November 1912. Amongst the eight questions which it considered the last was:

Should any, and, if any, what provisions be made for preventing or limiting the publication of reports of divorce and other matrimonial cases?

Among the witnesses were the President Sir John Bigham. He gave evidence on 4 March 1910:

‘I have a very strong opinion that it would be undesirable to suppress the [newspaper] reports, and I say so because of the anxiety that I know exists amongst the litigants themselves to keep the cases out of the paper. That very anxiety convinces me that the fear of publicity helps to keep people straight, and I would not take the fear of publicity away from them.’^[1]

The report was published on 2 November 1912. As to the publication of matrimonial proceedings the report proposed that such proceedings should continue to be heard in open court, without prohibition of publication, but with ‘restraint of such publication as is beyond all necessity in the public interest and is deleterious to public morals’.

None of this was acted on at the time. As is well known, what turned the tide was the lurid reporting of the Russell divorce case in 1922 (see Russell v Russell [1924] AC 687) and of the scandalous case of Dennistoun v Dennistoun (1925) 69 Sol Jo 476 tried before McCardie J in 1925, which prompted King George V to have his private secretary, Lord Stamfordham, write to the Lord Chancellor’s permanent secretary complaining how disgusted he was by such reports. This led to the Judicial Proceedings (Regulation of Reports) Act 1926, which remains in force in the UK and which applies to proceedings for divorce, nullity or judicial separation. The Act did not enact the proposal of the Gorrell Royal Commission that the court could sit in camera. The Act was primarily concerned with public morals, as Lord Rodger was to say decades later in In re Guardian News and Media Ltd [2010] 2 AC 697, SC(E) at [24]. It forbids the publication ‘in relation to any judicial proceedings of any indecent matter or indecent medical, surgical or physiological details being matter or details the publication of which would be calculated to injure public morals’.

The second part of the Act restricts what can be reported during a public trial to (i) the names, addresses and occupations of the parties and witnesses; (ii) a concise statement of the charges, defences and counter charges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court. It is to be noted that the restrictions apply only ‘during’ the trial and not following its conclusion (although see Argyll v Argyll [1967] Ch 302 where Ungoed-Thomas J considered that the restrictions continued after the conclusion of the hearing, seemingly indefinitely)). The limitation was therefore very slight – to prevent lurid reports of cases being heard publicly as they were proceeding.

Note that in Edmonton Journal v Alberta (Attorney General) [1989] 2 SCR 1326, the Alberta Judicature Act of 1935 which replicated the second part of the 1926 Act, was declared to be in conflict with s. 2(b) of the Canadian Charter of Rights and Freedoms (freedom of expression) and was struck down.

IV Scott v Scott: the principle and the derogations

Mrs Scott had petitioned for a decree of nullity of marriage on the ground of the impotence of her husband. The ‘usual order’ was made by a Registrar that the cause should be heard in camera. It was so heard, and a decree of nullity was granted. The wife and her solicitor obtained copies of the shorthand notes of all that took place at the hearing and sent copies so obtained to her father, her sister and a friend. An application was made by the husband to commit them for contempt. Bargrave Deane J. held that they had been guilty of contempt but accepted an apology from them. He made no other order than that they should pay the costs of the motion. From that order there was an appeal, which was heard by the full court and dismissed 5–2. The dissentients included Fletcher Moulton LJ. Had he not written his remarkable judgment there would have been no appeal to the House of Lords.

Fletcher Moulton LJ’s dissenting judgment, which was entirely and unanimously upheld by the House of Lords advanced the following propositions:

• the Registrar’s order merely provided for privacy at the hearing. It had nothing to do with secrecy as to the facts of the case. It related to the mode of conducting the hearing and to nothing more. It had no reference to subsequent publication. The proceedings for contempt had been misconceived from the beginning;
• the petitioner had a right to disseminate the materials she had circulated and judicial attempts to prevent her from doing so were constitutionally improper.

Mrs Scott appealed to the House of Lords, which gave judgment allowing he appeal 5–0 on 5 May 1913: Scott v Scott [1913] AC 417. The Law Lords ringingly proclaimed the importance of the principle that, unless a narrow exception applied, all proceedings had to be heard in courtrooms with open doors to which the public should have unfettered access.

The Earl of Halsbury stated that ‘I am of opinion that every Court of justice is open to every subject of the King’.

Earl Loreburn saw the rule that English justice must be administered openly in the face of all men, as an ‘almost priceless inheritance’.

Lord Atkinson said that a public trial was ‘the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect’.

Lord Shaw of Dunfermline saw the open justice principle as a constitutional rule ‘by which courts of justice must stand’.

Later pronouncements have reinforced the importance of the principle.

In Re K (Infants) [1965] AC 201, HL(E) Lord Devlin ranked it as having status equal to the rules of natural justice.

In Re F (A Minor) (Publication of Information) [1977] Fam 58, CA, Scarman LJ regarded the principle as our counterpart to the First Amendment of the US Constitution.

In R(C) v Justice Secretary [2016] 1 WLR 44 Baroness Hale said that the principle was ‘one of the most precious in our law’.

In Scott, the House of Lords accepted, however, that there existed a very narrow common-law exception to the open justice principle where the court could lawfully exercise its inherent power to hold proceedings behind closed doors.

In addition, there were three further exceptions where the court was either empowered, or sometimes even required, to hear cases behind closed doors:

• A. A common-law near-automatic exception where certain types of proceedings were almost invariably heard behind closed doors. In 1913 these were confined to wardship and lunacy cases.
• B. A statutory automatic exception where legislation required certain types of proceedings to be heard behind closed doors. In 1913 these were limited to cases under the Punishment of Incest Act 1908.
• C. A statutory discretionary exception where in certain types of proceedings the legislature gave the court the power to hold them behind closed doors. In 1913 these were limited to cases under the Children Act 1908.

Since 1913 exception A has been folded by Parliament into exception C. For the many types of case which the legislature has since placed in exception B or C see the monograph.

The common-law exception

The core ratio of Scott is that its facts did not take the case anywhere near the threshold where the court could validly make an order for a hearing behind closed doors. Therefore, the order that was made was invalid and the assumed prohibition on publishing details of the hearing held behind closed doors did not apply. Alternatively, if the order was technically valid, that did not carry with it any penal consequences were a publication to be made.

Hence the very carefully expressed specific holdings stated in the headnote:

‘Held, (1.) that the order to hear in camera was made without jurisdiction; (2.) that the order, assuming that there was jurisdiction to make it, did not prevent the subsequent publication of the proceedings.’

On the facts of the case the court did not have power to make the order that it did. There being no valid prohibitory order against Mrs Scott, she was at liberty to publish details of the hearing to third parties, namely her father, her sister and a friend.

Nowadays, it is this exception which is most invoked. It is burdened by a substantial body of complex, and not always consistent, jurisprudence.

Viscount Haldane LC stated at 437–438:

‘the chief object of Courts of justice must be to secure that justice is done … But unless it be strictly necessary for the attainment of justice, there can be no power in the Court to hear in camera either a matrimonial cause or any other where there is contest between parties. He who maintains that by no other means than by such a hearing can justice be done may apply for an unusual procedure. But he must make out his case strictly, and bring it up to the standard which the underlying principle requires. He may be able to shew that the evidence can be effectively brought before the Court in no other fashion. He may even be able to establish that subsequent publication must be prohibited for a time or altogether. But this further conclusion he will find more difficult in a matrimonial case than in the case of the secret process, where the objection to publication is not confined to the mere difficulty of giving testimony in open Court. In either case he must satisfy the Court that by nothing short of the exclusion of the public can justice be done. The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors.’ (Emphasis added)

It is from these pronouncements that the common law exception has been developed.

If you were limited to one take-out from this lecture, I suggest it should be that short paragraph from Viscount Haldane’s speech. If in any case it is suggested that the doors of the court should be closed, or that the parties and other distinguishing feature of the case should be anonymised, it is to that short passage that all should turn. Normally, it would not be necessary to look further.

The Earl of Halsbury accepted that a limited exception of this nature existed but was concerned that the Lord Chancellor’s language set the bounds too wide. He said at 442–443:

‘The difficulty I have in accepting this as a sufficient exposition of the law is that the words in which your Lordship has laid down the rule are of such wide application that individual judges may apply them in a way that, in my opinion, the law does not warrant.
 
I am not venturing to criticise your Lordship’s language, which, as your Lordship understands it, and as I venture to say I myself understand it, is probably enough to secure the observance of the rule of public hearing, but what I venture to point out is that it is not so definite in its application but that an individual judge might think that, in his view, the paramount object could not be attained without a secret hearing. Although I am very far from saying that such a case may not arise, I hesitate to accede to the width of the language, which, as I say, might be applied to what, in my view, would be an unlawful extension.’

Earl Loreburn, in contrast, felt that the Lord Chancellor’s test did not go far enough. He would formulate the test much more liberally. He said at 445–446:

‘Again, the Court may be closed or cleared if such a precaution is necessary for the administration of justice. Tumult or disorder, or the just apprehension of it, would certainly justify the exclusion of all from whom such interruption is expected, and, if discrimination is impracticable, the exclusion of the public in general. Or witnesses may be ordered to withdraw, lest they trim their evidence by hearing the evidence of others. Or, to use the language of Fletcher Moulton L.J., in very exceptional cases, …, where a judge finds that a portion of the trial is rendered impracticable by the presence of the public, he may exclude them so far as to enable the trial to proceed. It would be impossible to enumerate or anticipate all possible contingencies, …’

Earl Loreburn’s latter reason (‘the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court’) is in direct conflict with Lord Atkinson’s reasoning (‘the hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses…’). For this reason, this ground was not followed in the legitimacy cases of Greenway v. Attorney-General (1927) 44 T.L.R. 124 or in B (orse P) v Attorney-General [1967] P 119, where Wrangham J held in the latter that to do so would conflict with Lord Shaw’s speech and where the exception was not adopted by the other Law Lords. That decision led to the passage of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968, which allowed a petition for a declaration of legitimacy to be heard in camera.

Lord Atkinson said, in a passage which has since become canonical:

‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

Thus, he considered that the power to hear a case behind closed doors should be restricted to a case which if heard openly would render property valueless or cause the destruction of the whole matter of dispute (see page 451).

Lord Shaw of Dunfermline was of a similar view at page 483. The only type of case where the court could exercise it inherent power to sit behind closed doors was:

‘where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention – trade secrets – is of the essence of the cause. … [that] case – that of secret processes, inventions, documents, or the like -- depends upon this: that the rights of the subject are bound up with the preservation of the secret. To divulge that to the world, under the excuse of a report of proceedings in a Court of law, would be to destroy that very protection which the subject seeks at the Court’s hands. It has long been undoubted that the right to have judicial proceedings in public does not extend to a violation of that secret which the Court may judicially determine to be of patrimonial value and to maintain.’

All the Law Lords therefore accepted that an obvious example of the exception would be the trial of an issue about a trade secret. If it were not held in camera the very subject-matter of the action, namely the secret, would be destroyed by publication. A trial about a trade secret is not an additional exception but is the paradigm example of the type of case that would fall into the exception.

By contrast even gross and highly exceptional cases of positive indecency would not fall within the exception.

In Khuja v Times Newspapers Ltd [2019] AC 161 Lord Sumption summarised the common law exception at [14] in these terms:

‘More generally, the courts have an inherent power to sit in private where it is necessary for the proper administration of justice: Scott v Scott [1913] AC 417. Traditionally, the power was exercised mainly in cases where open justice would have been no justice at all, for example because the dispute related to trade secrets or some other subject matter which would have been destroyed by a public hearing, or where the physical or other risks to a party or a witness might make it impossible for the proceedings to be held at all.’

Viscount Haldane’s standard is an exacting test. In 1963 in Re K (Infants) ) [1965] AC 201, HL(E), Lord Devlin stated that the test is not easy to pass. It is not enough, he said, to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.

In 2014 in Bank Mellat v HM Treasury (No 2) [2014] AC 700, at [2[ Lord Neuberger introduced the obvious requirement that where a derogation from the principle is granted its degree must be kept to ‘an absolute minimum’.

The Divorce Court seems to have found it a difficult decision to accept.

In July 2013 a mere two months after Scott was decided, Moosbrugger v Moosbrugger and Martin (1913) 29 TLR 658 was heard. The wife alleged adultery and cruelty. Sir Samuel Evans P ordered the case to be heard in camera on the ground that the allegations were so ‘horrible’ that the wife was ‘hampered a little’, according to her counsel, in the giving of her evidence.

Similarly, four months later in November 2013 Cleland v Cleland and McLeod (1913) 109 LT 744 was heard. The wife alleged adultery and cruelty; the husband cross-petitioned alleging adultery. Bargrave Deane J ordered the case to be heard in camera stating it was ‘about as horrible a case as I ever came across in my somewhat long experience’ , and for that reason ‘I could not hope to do real justice in the case if the evidence had to be given in open court.’

It was as if Scott had not been decided.

Backsliding was not confined to the Divorce Court.

A particularly egregious example was R v Governor of Lewes Prison ex parte Doyle [1917] 2 KB 254 which arose out of the Irish Easter Rising. Gerald Doyle had been tried in camera by field general court martial on 5 May 1916, found guilty and sentenced to be shot. That sentence was commuted, and he was transferred to England to serve his sentence of three years’ penal servitude. He made an application for habeas corpus, one ground being ‘The conviction was bad because the field general court martial heard the case in camera.’ The case was heard by a Divisional Court of all the talents comprising Viscount Reading LCJ, Darling J, Avery J, Atkin J and three other High Court judges. Doyle was represented by FE Smith KC. His claim was dismissed. Viscount Reading LCJ cherry-picked a single sentence from the opinion of Earl Loreburn, wrongly attributed it to Viscount Haldane, and stated:

‘it is in my judgment plain that inherent jurisdiction exists in any Court which enables it to exclude the public where it becomes necessary in order to administer justice. That is the true meaning of the language used by Earl Loreburn and by Viscount Haldane L.C. in Scott v. Scott. The general principle enunciated in those judgments is stated in a sentence by Earl Loreburn, who said that, “the Court may be closed or cleared if such a precaution is necessary for the administration of justice.” His Lordship went on to state that it was impossible to enumerate all the possible contingencies, but that where the administration of justice would be rendered impracticable by the presence of the public, whether because the case could not be effectively tried or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court, the Court has the power to exclude the public

Darling J shamelessly mischaracterised Earl Loreburn’s speech, stating:

‘The trial took place in barracks when the rebellion in Ireland was still going on. The ruins in Dublin were still hot cinders, and the whole place was in the condition in which it is described by the fact that certain military precautions were taken, and the General in command of His Majesty’s forces [Sir John Maxwell] came to the conclusion that it would not be possible to administer justice if the public of Dublin were to be invited to attend at an open trial of persons with whom, no doubt, a great many of them sympathized. It seems to me that the passages referred to by my Lord from the judgments in Scott v. Scott are not exhaustive. Earl Loreburn says distinctly that he does not profess to set forth a code of exactly what must be proved before a Court can exercise its inherent right to sit in camera. This must surely be a stronger case than any of those mentioned in Scott v. Scott that the court-martial which sat to judge the applicant sat when an open rebellion was going on around the court, and at a time when the district — in fact the whole country — in which the trial took place was under martial law; which is equivalent to the suspension of law. It would be grotesque, in circumstances such as those — martial law having been proclaimed — to do what would be equivalent to inviting the public to come and hear witnesses give evidence against rebels with whom a great many of that same public sympathised. It was perfectly notorious that any persons who were recognized as having given evidence might very shortly afterwards have been made to suffer for having assisted to restore law and order. In my judgment the General exercised powers which he was perfectly entitled to exercise.’

This wide, loose and judicially-subjective test did not put down roots. Indeed, we have seen that Earl Loreburn’s wider test was later rejected, and that the rejection was approved by Parliament.

Another example of egregious backsliding was McPherson v McPherson [1936] AC 177, PC. The husband was the Minister of Public Works for the Province of Alberta. He petitioned for divorce alleging the wife’s adultery. The petition was not defended. The suit was not announced in a published daily cause list. The suit was heard during the luncheon interval in the judge’s library at the courthouse in Edmonton behind a door marked ‘Private’. Neither the judge nor counsel was robed. The judge was attended by the assistant-clerk of the Court and by an official shorthand writer, and before taking his seat he announced that he was sitting in open court. The only other persons present throughout the proceedings were the petitioner and his two witnesses. Lord Blanesborough was unimpressed, stating that the inroad upon the rule of publicity made in this instance was ‘one not to be justified, and now that it has been disclosed, as one that must be condemned so that it shall not again be permitted’.

Following the decision in McPherson the trail runs cold. There is no mention of Scott v Scott in the official law reports until 1971. From that point the case is cited with great frequency. The ICLR lists 332 instances, of which 65 were family cases and 267 were civil cases. To put the significance of the decision in context, the ICLR lists 259 cases which cite Donoghue v Stevenson [1932] AC 562. It is possible that Scott is the most cited case of all time.

In 1971, F v F (Divorce: Decree) [1971] P 1, PDA was reported. This concerned the validity of a decree absolute of divorce made in ignorance of a fourth child of the marriage. In his judgment Sir Jocelyn Simon P made passing reference to Scott v Scott.

He does not explain, however, why the judgment was anonymised, to which topic I now turn.

V Anonymisation

In the Victorian era there were no ‘official’ law reports. From the early days the reported decisions of the court were given fully, without any attempt of anonymisation. But from the mid-19th century some were anonymised at the behest of overly prudish law reporters: for example, D-e v. A-g (falsely calling herself D-e) (1845) 1 Rob Ecc 279, per Dr Lushington.

But this practice was never made official. In the Court of Appeal Fletcher Moulton LJ said

‘It must be remembered that the authors of these reports published them as private undertakings and had no greater or different rights with respect to disclosure than any other members of the public. Yet it is clear that they felt themselves free to report the facts of these cases just as fully as the facts of any other cases. Indeed it is only of later years that they made any attempt to conceal the identity of the parties by reporting the cases under mere initials. In the earlier cases the names were given in full in the original reports or under so slight a concealment that they were ordinarily quoted and referred to in the digests, &c., by the full names. It is impossible to believe that while contemporary reporters enjoyed this full liberty of recounting the evidence in the case the parties interested were bound to inviolable secrecy, and the only conclusion to which one can come is that the order that the hearing should be in camera was recognised as relating only to the mode of conducting the hearing and had no reference to subsequent publication.’

Excluding the press and public and closing the doors of the court is the nuclear option. Yet sitting in camera was the only option used for many years.

In Attorney-General v Leveller Magazine Ltd [1979] AC 440, following In re F (orse A) (A Minor) (Publication of Information) [1977] Fam 58, Lord Scarman stated that the court could order that certain evidence should be given in private or written down where it was necessary to protect the administration of justice from interference.

Thus, the power to order anonymisation originated. Such a method was considered to be an acceptable extension of the common law power of a court to control its proceedings by sitting in private.

It was given statutory recognition by s 11 of the Contempt of Court Act 1981, which remains in force and provides:

‘In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.’

This allows the court to make a contra mundum reporting restriction order where the court has either cleared the courtroom, or has allowed a party or witness to have their identity obscured, or where the court wishes to prevent disclosure of a particular matter.

However, in R v Arundel Justices, Ex parte Westminster Press Ltd [1985] 1 WLR 708, the Divisional Court decided that there was no jurisdiction under sec 11 if the court had already allowed a name or a particular matter to be referred to in public. In such a case, provided that Viscount Haldane’s exacting test was met, the court had a common law power to make a personal injunction against the parties prohibiting them from disclosing their identities, which order may be served on newspapers with a statement that the Spycatcher principle was being relied on. In PMC (a child by his mother and litigation friend FLR) v Cwm Taf Morgannwg University Health Board [2025] EWCA Civ 1126, CA Sir Geoffrey Vos MR at [108(vi)] overruled this restriction and held that the availability of sec 11 does not depend on the name in question having been withheld throughout the proceedings. In that case, in the light of prior disclosures in the media, the reporting restriction order was prospective only, and prohibited any further identification of PMC (or his family) as the claimant in the case.

In Khuja Lord Sumption saw the inherent power to order anonymity as being of a piece with, and subject to the same criterion of exceptionality as, the inherent power to order that a case be heard behind closed doors. He said at [14]:

‘The inherent power of the courts extends to making orders for the conduct of the proceedings in a way which will prevent the disclosure in open Court of the names of parties or witnesses or of other matters, and it is well established that this may be a preferable alternative to the more drastic course of sitting in private… Orders controlling the conduct of proceedings in court in this way remain available in civil proceedings whenever the court “considers non-disclosure necessary in order to protect the interests of that party or witness”: CPR 39.2(4).’

Reasons for anonymity

As we have seen, Sir James Bigham was firmly of the view that naming names should keep litigants straight, or at least straighter. Lord Alverstone LCJ was very firm that the guilty party in a divorce should be named. Thus, publicity does not merely deter future wrong-doing. It allows wrong-doers to be called out and for the virtuous to be publicly vindicated. Naming names not only ensures that justice is done, but that it is seen to be done.

But the better, more modern, reason is that only by naming names is the public interest in the court process maintained.

This reason was memorably expressed by Lord Rodger in Guardian News and Media Group [2010] 2 AC 697 at [67] where he said: ‘What’s in a name? “A lot”, the press would answer.’

In Re PP (A Child) [2023] EWHC 330 (Fam) I endeavoured to explain why at [54]:

‘The open justice principle exists so that the people can see how cases are conducted. Everyone knows that the core constitutional responsibility of the judiciary is to uphold and implement the rule of law. This requires the judiciary to try disputes in court fairly, justly and impartially, whether they are private law cases between individuals, or public law cases between individuals and the state. It is one of the main pillars supporting a functioning democracy. That pillar will collapse if the people cannot observe cases being tried, or cannot understand from the judgments how they have been tried. It is for this latter reason that Lord Devlin stated in his book The Judge (OUP 1979):
 
“The judicial function is not just to render a decision. It is also to explain it … in words which will carry the conviction of its rightness to the reasonable man.”
 
In order to do this a judgment has to tell a story which is readable, or at least not unreadable. Anonymising a judgment almost invariably destroys the quality of the story and renders it largely unreadable. Imagine trying to read an anonymised version of Great Expectations. You wouldn’t get very far. …
 
I fully accept that sometimes anonymity is unavoidable, as it is in this case. As a result I would think that most reasonable readers would struggle to get through the first 24 paragraphs I have written above. But once all judgments are like that it can safely be said that a key constitutional function of the judiciary will have been sterilised.’

An exceptional power

Lord Neuberger MR explained in his Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003, summarising H v News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645, at [ 21]

‘Anonymity is an exception to the principle of open justice. It can only be ordered where it is strictly necessary.’

Start with the common law

The import of the decision of the Supreme Court in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815 is that Viscount Haldane’s common law exception should be the first port of call wherever an applicant seeks anonymisation. That test has at its heart a question: can the applicant seeking anonymity satisfy the Court that by nothing short of anonymisation can justice be done?

In R v Sarker [2018] EWCA Crim 1341 Lord Burnett LCJ stated at [29(vii)] that any derogation from open justice must be established by ‘clear and cogent evidence’. This requirement does not alter either the burden or standard of proof in civil cases. That standard is ‘more likely than not’, no more, no less.

If the reason that anonymity is sought is that the very subject matter of the case would be destroyed by full publicity, then the common law would answer the question affirmatively and there will be no need to consider Convention rights. Similarly, if the applicant can prove that, for example, she faces a real risk of being attacked and robbed (as happened to Mrs Charman) then, again, a decision in favour of anonymisation would properly be made under the common law.

But if the reason is no more than ‘I would be very distressed, pained and humiliated if details of my finances were published’ then, subject to what is said below about the decision in PMC, the common law would certainly reject the application for anonymity. which would then lead to an appropriately focussed weighing of the competing Convention rights (or, as will be seen, in these Islands to comparable constitutional rights).

At all times, however, the decision-maker must have the question at the forefront of his or her mind.

This approach is entirely concordant with the principle of Lord Neuberger and Lord Mance in their joint judgment in Kennedy v Information Comr [2015] AC 455, SC at [46] that

‘the natural starting point in any dispute is to start with domestic law, and it is certainly not to focus exclusively on the Convention rights, without surveying the wider common law scene.’

At [133] Lord Toulson memorably stated that ‘it was not the purpose of the Human Rights Act that the common law should become an ossuary’.

The approach reflects precisely the instructions given by Lord Reed and Lord Briggs in Abbasi at [89], [93] and [94] – see below.

The European Convention on Human Rights

The incorporation of the European Convention on Human Rights into domestic law by the Human Rights Act 1998 was always likely to have an impact on this jurisprudence. This was because Article 8 supplied a right to respect for a private and family life and sec 6(1) provided that it was unlawful for a public authority to act in a way which is incompatible with a Convention right. The court is a public authority for these purposes (sec 6(3)). Thus, at any rate in theory, the court could make a contra mundum injunction under sec 37 of the Senior Courts Act 1981 to protect a party’s Article 8 Convention rights to a private and family life.

Article 6 provides that In the determination of their civil rights and obligations, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

It further provides that judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial:

• in the interest of morals, public order or national security in a democratic society, or
• where the interests of juveniles or the protection of the private life of the parties so require, or
• to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

The Cayman Islands Constitution

The provisions of the Bill of Rights within the Cayman Islands Constitution 2009 permitting trials behind closed doors are virtually identical to the ECHR.

Sec 7(10) provides:

‘Nothing in subsection (1) or (9) shall prevent the court from excluding from the proceedings persons other than the parties to them and their legal representatives to such extent as the court—
 
(a) may be empowered by law to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of minors or the protection of commercial confidence or of the private lives of persons concerned in the proceedings; or
 
(b) may be empowered or required by law to do in the interests of defence, public safety, or public order.’

The only true difference between the two texts is the highlighted phrase ‘or the protection of commercial confidence’.

I am not aware of any local caselaw that determines whether those additional words modify Viscount Haldane’s test or the Re S balancing exercise (qv) in proceedings here in the Cayman Islands.

Re S

The Strasbourg authorities state that the requirement for hearings to be held in public is a ‘fundamental principle’. This mirrors the approach of the common law, as Hale LJ pointed out in the Court of Appeal in Re S [2004] Fam 43.

In the appeal from that decision (Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, HL(E)) the issue was whether for the trial of the applicant child’s mother for the murder of the child’s brother, a contra mundum anonymity order should be made by the High Court preventing identification of the child. Lord Steyn, speaking for a unanimous committee, held at [23]:

‘The House unanimously takes the view that since the 1998 Act came into force in October 2000, the earlier case law about the existence and scope of the inherent jurisdiction need not be considered in this case or in similar cases. The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases. In this case the jurisdiction is not in doubt. This is not to say that the case law on the inherent jurisdiction of the High Court is wholly irrelevant. On the contrary, it may remain of some interest in regard to the ultimate balancing exercise to be carried out under the ECHR provisions... Before passing on I would observe on a historical note that a study of the case law revealed that the approach adopted in the past under the inherent jurisdiction was remarkably similar that to be adopted under the ECHR. Indeed the ECHR provisions were often cited even before it became part of our law in October 2000. Nevertheless, it will in future be necessary, if earlier case law is cited, to bear in mind the new methodology required by the ECHR as explained in Campbell v MGN Ltd [2004] 2 AC 457.’

However, in Khuja v Times Newspapers Ltd [2019] AC 161 Lord Sumption explained at [23] that it would be a grave mistake to think that the common law was irrelevant whenever a derogation from the open justice principle was sought:

‘in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot, simply because the issues arise under the heading “private and family life”, part company with principles governing the pre-emptive restraint of media publication which have been accepted by the common law for many years in the cognate areas of contempt of court and defamation, and are reflected in a substantial and consistent body of statute law as well as in the jurisprudence on article 10 of the Human Rights Convention.’

In PMC at [34] Sir Geoffrey Vos stated:

‘The importance of [Re S] relates to two passages at [17] and [23] of Lord Steyn’s speech. The passages changed the approach to the jurisdictional foundation for RROs. As will be seen, however, later cases culminating in Abbasi SC have rather changed that approach again.’

Abbasi

The issue in Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] 2 WLR 815 was whether a contra mundum injunction should be made anonymising the treating clinicians of a baby who had died.

In their joint judgment Lord Reed and Lord Briggs stated at [89] that:

‘The court does not act in a way which is incompatible with a Convention right by insisting that individuals avail themselves of the domestic cause of action which is available to protect that right, and that the action is brought by the individual whose Convention right is in issue.’

And at [98]:

‘the general rule [is] that parties should protect their Convention rights by availing themselves of the appropriate cause of action under our domestic law’

Further, they stated in [93] that Lord Steyn’s reasoning in Re S, where he went directly to section 6(1) of the Human Rights Act 1998, without pausing to consider the availability of domestic remedies, was ‘highly unusual’.

In [94] they stated that the law had ‘moved on since Re S’. The courts now, they said:

‘are willing to develop the common law when necessary, in order to meet the requirements of the Convention, and have deprecated the tendency to see the law solely in terms of the Convention itself.’

If a cause of action is either unavailable or fails to provide ‘practical and effective’ protection of the applicant’s Convention rights, then the court can exercise its broader equitable jurisdiction under section 37 of the Senior Courts Act 1981 read with section 6(1) of the Human Rights Act 1998: see [98].

This approach means that the invocation of Convention rights is to be a rarely used safety net rather than as the first and last port of call.

This new approach had been foreseen in Millicom Services UK Ltd v Clifford [2023] ICR 663, CA where Warby LJ stated at [29]:

‘The effect of the HRA is not that the Convention supplants or replaces domestic statutory or common law rules; rather it provides certain guarantees against the enforcement of those rules to the extent that would be incompatible with fundamental human rights. As Mr Callus eventually conceded, it is not necessarily the case that the answer given by the common law will be the same as that arrived at through a Convention analysis. And if the two are different, that does not necessarily mean the common law answer is incompatible with the Convention.’

Therefore, the court’s correct approach where an anonymity order is sought is first to identify and invoke an available domestic remedy. That would be Viscount Haldane’s common law exception. If that answers the question positively then the order may be made, and consideration of Convention rights simply does not arise. If the answer is negative then it is only at that stage that the competing Convention rights applicable by virtue of the facts, come into play.

PMC

PMC v Cwm Taf Morgannwg University Health Board is a high-value personal injury claim made on behalf of a seriously injured 13-year-old boy by his mother, FLR, acting as his litigation friend. Within those proceedings an interlocutory application was made on behalf of PMC for an anonymity order. That was refused by Nicklin J [2024] EWHC 2969. The Court of Appeal allowed an appeal by PMC and made a ‘prospective’ anonymity order. The order does not prevent the media reporting on the matters of public interest arising in the litigation, such as the events that led to the claimant’s injuries and the conduct of the hospital in dealing with them. Nor does the order prevent reporting of the amount of any damages agreed or awarded. Instead, it prevents the claimant and his family from being further identified in the media as the claimant in the case. It will afford the claimant ‘a modicum of protection at this crucial stage of his personal injury claim’.

In his judgment on the anonymity application Sir Geoffrey Vos MR undertook a comprehensive survey of the open justice principle. He stated that the judgments in Scott v Scott ‘provide the rock on which the principles of open justice stand’ [ 26]. He said that those judgments acknowledged a very limited non-discretionary derogation from the common law principle of open justice exercisable only in circumstances of strict necessity for the purpose of achieving justice in the proceedings [28]. The overriding principle was that cases had to be heard in public unless there was a strict necessity to depart from that rule [84]. This was the ‘cardinal principle’ [89].

In determining whether the test is satisfied the court must carry out a fact-specific balancing exercise [108(vi)]. The Court starts from the position that very substantial weight must bel given to the open justice principle. The balancing exercise begins with a very clear presumption in favour of open justice which will prevail unless and until it is displaced and outweighed by a sufficiently countervailing justification [91].

Although there is a slight variation of the language used by Viscount Haldane the core principle is, at least on its face, unaltered. The test remains as before. An anonymity order will only be made where it can be shown, following a scrupulous inquiry, that by nothing short of anonymisation can justice be done. Further, in that inquiry Lord Atkinson’s principle remains unaltered. Parties and witnesses must endure what may be a painful or humiliating experience, or be deterred from giving evidence, in having the case heard publicly

‘because it is felt that in public trial is found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

One is bound to observe that in most private law disputes, and in many public law disputes, parties and other witnesses will be required to give oral evidence under cross-examination about personal matters and will find the experience painful and humiliating. Indeed there is, if not an obligation, then certainly an expectation, that counsel will in cross-examination ‘confront’ the witness. If the witness did not find the experience uncomfortable one would wonder if counsel were doing the job properly

Although the general merit of open justice was proclaimed with great force, Sir Geoffrey’s judgment appears to permit derogations from the cardinal principle in many more circumstances than Viscount Haldane or even Earl Loreburn would have contemplated. Indeed, his description of the permitted circumstances gives rise to the same concerns as those expressed by the Earl of Halsbury:

‘The difficulty I have in accepting this as a sufficient exposition of the law is that the words in which your Lordship has laid down the rule are of such wide application that individual judges may apply them in a way that, in my opinion, the law does not warrant.

In setting out the types of modern case which may now be justifiably anonymised Sir Geoffrey is unhappily ambiguous in certain important respects.

In [46] he cites Lord Reed’s judgment in A v BBC [2014] UKSC 25, [2015] AC 588 where at [40] and [41] he (Lord Reed) stated:

‘40. Some of these examples may arguably go beyond the categories envisaged in some of the older authorities. As Earl Loreburn observed however in [Scott v. Scott at 446], it would be impossible to enumerate or anticipate all possible contingencies. Furthermore, in this area as in others the common law is capable of development. The application of the principle of open justice may change in response to changes in society and in the administration of justice.’

Given that the Law Lords had carefully drawn a jurisdictional line beyond which the High Court simply had no authority to go, one must ask from where the power to order a wider class of case to be heard in secret, sprang? It certainly did not come from Parliament.

Lord Reid continued:

‘41. The examples given by the Lord President of a party or witness whose safety may be endangered or who may suffer commercial ruin if his identity becomes known, or that of the female pursuer where the decision turns on intimate medical evidence, are all capable of raising issues which could warrant a qualification of the principle of open justice, applying the approach which I have explained. In relation to the last example, which was the subject of particular criticism by counsel for the BBC, I agree with the Lord President that it would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about her where there was no public interest in its being publicised. Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of that case. As Lord Toulson JSC observed in Kennedy v Information Comr (Secretary of State for Justice intervening) [2015] AC 455, 525, para 113, the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.’

Lord Reed confined the third example to a personal injury case which would turn on intimate medical evidence about the claimant’s condition which would be ‘painful and humiliating’ to disclose and where ‘there was no public interest in it being publicised’.

Sir Geoffrey seizes this very limited extension to Viscount Haldane’s test to throw the boundary far wider than was ever intended by any of the judges in Scott. In [79] he observes that the law in this area had moved on considerably in the first 25 years of this century. Relying on Lord Reed’s dicta he said that the common law ‘is capable of development’ and the application of the principle of open justice ‘can change in response to changes in society and in the administration of justice’. He then goes on to describe factual situations which in his opinion may now justify anonymity (even if they would not have done 100 years ago) by virtue of changes in society and concepts of justice. The timeless, absolute, principles of Scott are now apparently to be seen as rooted in a different era capable of being applied, or not, depending on the morally relativistic view of the modern judge of their contemporary validity.

In [88] Sir Geoffrey extrapolates from Lord Reed’s para 41 a general proposition that ‘the common law power to derogate from the open justice principle in the course of proceedings can be deployed to protect the interests of vulnerable parties.’ While it is true that the female claimant described by Lord Reed may well qualify as ‘vulnerable’ it is a stretch to extend that example to all vulnerable parties and witnesses. It is unclear whether Sir Geoffrey himself intended that extension, as in [108(iv)] he appears to be speaking of the health of vulnerable parties or witnesses as opposed to their interests generally. He states there:

‘Fourthly, anonymity may be necessary in view of the risks posed in the circumstances of the case. Those identified in the case law to date include: (i) risks to the safety of a party or a witness, (ii) risks to the health of a vulnerable person, and (iii) risks of a person suffering commercial ruin. Anonymity orders may also be made to protect a party to proceedings from the painful and humiliating disclosure of personal information about them where there was no public interest in its being publicised.’ (Emphasis added.)

Here the confusion is multiplied. There is no dispute that risks to the safety of a party or a witness, and risks of a person suffering commercial ruin are examples given by Lord Reid and which can be traced back to the judgments in Scott. But Lord Reid’s third example of a female claimant needing to give intimate medical evidence about her condition which would be ‘painful and humiliating’ to disclose and where ‘there was no public interest in it being publicised’ was in [88] extrapolated by Sir Geoffrey to ‘the protection of the interests of vulnerable parties’ and is now expanded further by him in [108(iv)] to protection from (a) risks to the health of a vulnerable person and (b) the painful and humiliating disclosure of personal information about a party (whether vulnerable or not) where there was no public interest in its being publicised. This latter example is a long way from Lord Reed’s third instance and seems to have shed the earlier requirement of vulnerability. It is also completely at variance with Lord Atkinson’s key, canonical, principle. The following two statements are completely irreconcilable:

‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured…’ (Lord Atkinson)

and

‘Anonymity orders may also be made to protect a party to proceedings from the painful and humiliating disclosure of personal information about them where there was no public interest in its being publicised.’ (Sir Geoffrey Vos MR)

We can therefore see that Sir Geoffrey’s analysis not only suffers from ambiguity but sets the exceptions to the open justice principle far wider than was ever contemplated in Scott. It could be said that it potentially blows a large hole in the cardinal, foundational principles of Scott.

In my humble opinion it is necessary for the judiciary periodically to be reminded of what the House of Lords actually decided. As seen, the headnote is very carefully phrased. It states:

‘Held, (1.) that the order to hear in camera was made without jurisdiction; (2.) that the order, assuming that there was jurisdiction to make it, did not prevent the subsequent publication of the proceedings.’

Thus, the House of Lords held that the divorce court did not have the power to make an order directing that excruciatingly painful and humiliating evidence about Dr Scott’s^[2] unsuccessful attempts to consummate the marriage be heard in camera. Such evidence had to be heard in public. Plainly, there was no public interest in such evidence being heard in public but that made no difference to the absence of a power to hear it behind closed doors. True, in 1935 Parliament intervened to provide that in any proceedings for nullity of marriage, evidence on the question of sexual incapacity shall be heard in camera unless the judge is satisfied that in the interests of justice any such evidence ought to be heard in open court (see the Supreme Court of Judicature (Amendment) Act 1935). But Parliament did not provide for a general exception whenever it would be painful and humiliating for a party to have to give personal evidence. Apart from this specific singular change it left that principle intact. In my respectful opinion it is not for judges to legislate where Parliament has specifically declined to do so.

I move on.

Sir Geoffrey’s judgment confirms Abbasi’s abandonment of the Re S exclusive balancing exercise when an anonymity order is sought. At [34] he said:

‘The importance of [Re S] relates to two passages at [17] and [23] of Lord Steyn’s speech. The passages changed the approach to the jurisdictional foundation for RROs. As will be seen, however, later cases culminating in Abbasi SC have rather changed that approach again.’

At [74] citing Lords Reed and Briggs, he observed that section 6(1) of the Human Rights Act 1998 did not confer any power on the court which it did not otherwise possess. Rather, it applied within the ambit of the powers which the court otherwise did possess. It was prohibitory rather than enabling. The function of the Convention was generally to set a boundary which domestic law could not go beyond without contravening international obligations. There might be circumstances where the court could exercise its broader equitable jurisdiction so as to ensure that the protection afforded to ECHR rights was practical and effective rather than theoretical and illusory.

In deciding whether to do so the court has to adopt a structured approach. First it must be established that the application of the open justice principle and the refusal to apply a permitted exception allowed by the common law amounts to ‘an interference prescribed by law’. The next question is whether the refusal pursued a legitimate aim, i.e. an aim which can be justified with reference to one or more of the matters mentioned in article 8(2) or 10(2) (as the case may be). The remaining question is whether the interference was necessary in a democratic society. It is only at that stage that the court may be required to strike a fair balance when protecting two values guaranteed by the Convention which may come into conflict with each other.

Given the width of the permitted exception as adumbrated by Sir Geoffrey, which exception is subject to its own balancing exercise before being allowed, it is hard, if not impossible, to conceive of factual circumstances which would not fall within them but would still nonetheless amount to a breach of Convention rights. One can safely say that the Re S technique of turning straight to the convention and performing a balancing exercise of competing rights is now dead in the water.

The judicial tergiversations since Scott illustrate perfectly Jeremy Bentham’s criticism of judicial law-making. In 1827 he called the common law a ‘many-headed monster, which, not capable of thinking of anything till after it has happened, nor then rationally, pretends to have predetermined everything.’

We start with Viscount Haldane’s simple, yet strict test. Anonymisation may be ordered only where it is strictly necessary for the attainment of justice: by nothing short of anonymisation can justice be done. The only examples articulated by the House of Lords were a dispute related to trade secrets or some other subject matter which would have been destroyed by a public hearing, or where the physical or other risks to a party or a witness might make it impossible for the proceedings to be held at all.

Although there was much diversity between them as to whether and if so what facts might justify a hearing behind closed doors, the committee was unanimous that parties and witnesses must endure what may be a painful, humiliating, or deterring experience in having the case heard publicly. Viscount Haldane stated (p 439):

‘The mere consideration that the evidence is of an unsavoury character is not enough, any more than it would be in a criminal Court, and still less is it enough that the parties agree in being reluctant to have their case tried with open doors … A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands.’

The Earl of Halsbury (p 442):

‘a mere desire to consider feelings of delicacy or to exclude from public hearing details which it would not be desirable to publish is not, in your Lordship’s opinion, enough to prevent a public hearing.’

Lord Atkinson (p 463):

‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.’

And Lord Shaw of Dunfermline (pp 484–485):

‘may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One’s experience shews that the reluctance to intrude one’s private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keeps us secure… Courts of justice must stand by constitutional rule.’

Four years’ later in 1917 we have Viscount Reading LCJ’s interpretation. He stated that the doors of the court may be closed and anonymity ordered where ‘the precaution is necessary for the administration of justice’. This was on any view a massive watering down of Viscount Haldane’s test, which fortunately seems to have disappeared into the mists of history.

In 2004, six years after the Human Rights Act 1998 had been passed – at a time when the Convention was in its ascendancy – Lord Steyn expressed the exception thus: ‘the duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8.’

The Convention then began its descent to no more than a rarely used safety net leading Sir Geoffrey Vos in 2025 in effect to disapply it. He re-expresses the test in terms of ‘risks posed in the circumstances of the case’ instancing risks to the safety of a party or a witness, risks to the health of a vulnerable person, and risks of a person suffering commercial ruin. Additionally, he suggested that anonymity may be ordered to protect a party from a painful and humiliating disclosure of personal information where there is ‘no public interest’ in its publication.

It is questionable whether Sir Geoffrey had the power to extend the exception in this way.

I suggest that precedent would be honoured, and life made simpler, if the courts were to be true to the repeated mantra that Scott is ‘the rock on which the principles of open justice stand’, and actually apply those principles without gloss or polish.

VI Rules of Court

CPR 39.2(3)–(4) sets out rules listing the circumstances where a case can be heard in private or where the identity of a person should be anonymised. FPR 7.30(3)-(5), FPR 37.8(4)–(5) and COPR 21.8(4)-(5) are to the same end.

CPR 39.2(4) states that ‘The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person’.

In PMC v A Local Health Board Nicklin J held that a Reporting Restriction Order cannot be made under CPR 39.2. If it were possible then the various statutory powers permitting the making of RROs (e.g. s 11, Contempt of Court Act 1981 and s 39, Children and Young Persons Act 1933) would be rendered wholly otiose and redundant: those powers, with their own strict standards could be ignored and a wider, looser power under CPR 39.2(4) deployed.

The language of CPR 39.2(4) does not (and cannot) alter the test for making an anonymity order. It is doing no more than describing the court’s inherent power, referred to above, to order that the identity of a party or witness be withheld.

VII Open doors in the modern age

Trials in the Victorian era, whether civil or criminal, were almost invariably heard by juries.

They were presented orally from start to finish. There were no written arguments. Pleadings were in writing but to the extent they were relied on, they were read out. Similarly, relevant documents would be read out. The judgment, even if prepared in writing, would be read out.

This tradition of orality meant that if a member of the public attended a trial, he or she would be able to follow exactly what the trial concerned, what the evidence both documentary and from the witness box was, what the competing arguments were, and what the judgment was.

Equally, a journalist would be able to prepare a full and accurate report of the trial.

Dr David Cairns in Advocacy and the Making of the Adversarial Trial 1800–1865 (Oxford: Clarendon Press, 1998) commented:

‘Publicness comprised two characteristics. Firstly access, which enabled spectators to see the law in action. The public’s right of access was enhanced by conducting the trial as a single and fast event. … The second feature of publicness is orality, by which the audience in court could follow every step of the trial.’

Trials back then were certainly ‘fast events’. Chris Bryant MP in James and John: A true story of Prejudice and Murder (Bloomsbury 2024) describes the trial held at the Old Bailey on 21 September 1835 of James Pratt and John Smith accused of the capital crime of sodomy.

The procedure then was that as soon as the clerk of the court was notified of the decision of the grand jury, the accused were brought in to enter their pleas.

Once commenced, proceedings then moved quickly. Judges boasted that they could get through sixty or seventy trials in a day. According to one contemporary account, what passed for justice took on average just eight and a half minutes – and some cases took even less. Others argued that in a large proportion of the cases ‘five or six minutes are quite sufficient for each trial’.

In R v Pratt and Smith the accused were brought up and the full indictment, luridly alleging crimes against the order of nature, was read out. The prosecution called three witnesses, the defence called five character witnesses but no witnesses of fact.

The process then was very unequal. The prosecutor could be represented by counsel who could call and examine witnesses of fact, cross-examine defence witnesses, and make a final speech to the jury highlighting the accused’s alleged guilt.

In contrast the accused could not give evidence. That did not happen till 1898. The accused could not instruct counsel to challenge the crown’s witnesses of fact or make a final speech highlighting the accused’s lack of guilt. Such had to be done by the accused himself. That rule was not changed until 1836. Needless to say, most defendants were incapable of challenging the prosecution case.

The jury in R v Pratt and Smith had no need to retire, and it took them seconds to return guilty verdicts. The accused were sentenced to death. The trial had lasted less than an hour. James and John were publicly hanged on 27 November 1835. They were the last persons to be executed for that offence in Europe. Their execution was a macabre spectacle watched by thousands. Charles Dickens observed one such execution and thereafter threw himself into a successful campaign to have executions performed behind the prison walls away from public view.

The tradition of high-speed orality dominated the 19th century.

As the 20th century progressed science and technology advanced and litigious disputes became ever more complex. At the same time typing and printing methods became ever more affordable, and volumes of printed material were commonly sought to be used in civil trials.

In their joint judgment in Home Office v Harman [1983] 1 AC 280 Lord Scarman and Lord Simon were of the view that public knowledge of the evidence and arguments of the parties was certainly just as important as expedition and that if the price of expedition was the silent reading by the judge before or at trial of relevant documents, it was arguable that expedition would not always be consistent with justice being seen to be done.

By 1998 concerns at the volume of paper now dominating civil trials, with the consequential disenfranchisement of interested observers, were becoming more pronounced. See GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd (FAI General Insurance Co Ltd intervening) 21 December 1998 [1999] 1 WLR 984, CA per Potter LJ; Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781 per Lord Bingham and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court 03 Apr 2012 [2013] QB 618, CA at [83] and [85] . In the latter case Toulson LJ held that the default position should be that access should be permitted on the open justice principle; and where access was sought for a proper journalistic purpose, the case for allowing it would be particularly strong. The court had to carry out a fact-specific proportionality exercise where at the centre of the court’s evaluation would be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others.

The current rules were introduced in 2006. CPR rule 5.4C provides that:

‘(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it; and (b) a judgment or order given or made in public (whether made at a hearing or without a hearing).
 
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
 
(3) …
 
(4) The court may, on the application of a party or of any person identified in a statement of case order that a non-party may not obtain a copy of a statement of case or order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court
 
(5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23.

In Dring (on behalf of the Asbestos Victims Support Groups Forum UK) v Cape Intermediate Holdings Ltd 29 Jul 2019 [2020] AC 629, SC(E) the question came before the Supreme Court. Persons who were not parties to a heavy asbestosis case, which was settled while the judgment was reserved, sought access to the trial bundles.

Baroness Hale PSC held that the rule was in fact an irrelevance as the ‘records of the court’ did not cover trial bundles which had been lodged with the court and made available to the judge. She held however that the court had an inherent jurisdiction to allow a non-party access to the trial bundle.

She held that the open justice principle was not only about holding courts and judges to account but also about enabling the public to understand how the justice system worked and why decisions were made. She observed that while proceedings were once conducted almost entirely orally, modern practice relied heavily on written arguments and evidence, often not read aloud, making access to documents essential for understanding, particularly in complex civil cases.

She held that courts had the power to grant access to such material, but there was no automatic right (unless specifically provided by the rules). Applicants had to explain why they sought access and how it supported open justice. The media might have been well placed to do this, but others could also show a legitimate interest. The court had to balance the value of disclosure for open justice against risks such as harm to the judicial process, privacy, national security, or commercial confidentiality.

Practicality and proportionality were also key. Requests were best made during a trial, when materials were available and parties were present, and applicants should expect to cover the reasonable costs of compliance by the parties. After proceedings ended, access might be impractical if materials were no longer held or retrieval was burdensome. Digitisation could ease future access, but non-parties should only apply if they could show a strong case for advancing open justice without disproportionate burdens or overriding countervailing concerns.

These principles were considered by the Court of Appeal in Moss v The Upper Tribunal [2024] EWCA Civ 1414. There Coulson LJ clarified that the Dring principles did not require a non-party seeking sight of, for example, the skeleton arguments, to prove a negative namely that there were no countervailing factors, and that granting the request would not be impracticable or disproportionate. How, asked Coulson LJ rhetorically, could a non-party know that there might be a risk of harm arising from the disclosure of a document that he or she has not even seen? He held that good practice in the Upper Tribunal required that, in the first instance, non-parties should where practicable seek such documents directly from the party which has created them, and only In the event of objections or difficulties, should the non-party have to make an application for disclosure the documents to the UT. That application should be made on notice to the parties.

While this sounds good the reality for those at the coalface is, as I have discovered, very different. See Annex 1.

If, in order to understand a judgment given in the Court of Appeal, an observer wants no more than to see the key written expert evidence relied on by that Court, they will be required to pay a fee of £626 and then be forced to embark on a piece of satellite litigation by making them serve an application on all the parties to the case.

In my respectful contention this is the very antithesis of the open justice principle. I do accept that these requirements all derive from Baroness Hale PSC’s judgment, which provides many opportunities for denying a request for key documents.

I suggest that the open justice principle requires for every substantive appeal heard in the Supreme Court, or in the Court of Appeal and or in the High Court, which is not about children or incapacitated or mentally unwell persons, that a video recording of the hearing should be available in the archive together with the skeletons and any expert evidence used at the hearing.

VIII The Court of Protection

Proceedings in the Court of Protection (COP), are routinely video streamed and observed by members of the public. Cases in that court are quite short and the volume of paper relatively small. They are very apt for giving effect to the open justice principle in the way suggested above.

In terms of transparency the COP is unique. The rules say that its proceedings shall be in private (and thus are protected by s12 AJA 1960) but that a practice direction can provide for cases to be heard in public (thereby losing that protection). See COPR rules 4.1(1) and 4.3(3) and PD 4C paras 2.1–2.3.

Such a PD has duly been made. This provides that the court should ‘normally’ direct on the papers that the case be heard in public but subject to a ‘transparency order’ (i.e. a reporting restriction order providing for anonymity. All observers are made aware of the terms of transparency order. Pursuant to the decision in Re AB (Disclosure of Position Statements) [2025] EWCOP 25 the observers are generally given the parties’ position statements on the same terms is those spelt out in Moss.

The Open Justice COP Project headed by Professor Celia Kitzinger of Cardiff University has set up a website with full instructions on how to observe a COP hearing remotely (https://openjusticecourtofprotection.org) and as a result over the last five years around 1,000 cases have been observed by her and her team and around 2,000 other cases have been observed by members of the public. Professor Kitzinger says:

‘Additionally, I have been sent paperwork associated with these cases (e.g. transparency orders, copies of draft and/or agreed orders, position statements, agreed summaries) and barristers, solicitors and some judges have taken the time outside court to answer my questions about points of law and fact related to the cases I’ve observed.’

The system that has been devised for COP cases is a model of how transparency should be dealt with in those highly sensitive cases, which are protected by section 12 AJA 1960.

It is hard to understand why cases about children are heard in private, only capable of being observed by journalists or legal bloggers, while equally sensitive COP cases are heard in public, subject to a reporting restriction order.

In the COP the right to observe is confined to watching proceedings in real-time. An observer cannot watch a recording of a hearing. This prevents important research. The restriction does not apply in the Court of Appeal or the Supreme Court where video recordings of hearings are kept in an accessible archive indefinitely. I have not been given any explanation for the reason for this strangely contradictory state of affairs.

Australia seems to be confident that the criminal prohibition of making a copy of, and then re-using, a live or deferred stream is sufficient to prevent such conduct, and I have never heard to an occurrence of this in England.

.

IX Reform

The Supreme Court and the Judicial Committee of the Privy Council stream every hearing. I am told that with almost immediate effect, the Supreme Court will in every case make available for download, 10 days before the hearing commences, copies of the parties’ printed cases. I have not been able to discover if this welcome step will extend to the JCPC.

In his speech Open Justice – Fit for Purpose given on 5 June 2025 Nicklin J, chair of the Judicial Transparency & Open Justice Board, said at [38]:

‘The Board has already started work on providing to the public more information about proceedings. Alongside the now routine live-streaming of most hearings in the Court of Appeal (Civil Division), a pilot is currently underway to provide enhanced information about cases to support better understanding of proceedings. On the Court of Appeal’s live-streaming website, you will now find, for cases selected to be part of the pilot, links to the decision being appealed and, critically, the skeleton arguments of the parties. This will enable those observing the proceedings – whether in person or via live-stream – to gain a much better understanding of the issues and the arguments.’

This sounds a very good step in the right direction. Mr Justice Nicklin has written to me about the Court of Appeal pilot as follows:

‘Your frustration at being unable to follow hearings in the Court of Appeal is also well understood. As you know, there has been a CA pilot recently where skeleton arguments were provided to support the livestreaming. The initiative, supported by the Lady Chief Justice, is widely viewed as a breakthrough in promoting transparency in court proceedings. Early feedback has been positive, the initial phase of the pilot involved 1 case per week from 1 April until 31 July 2025, equates to 14 cases in the relevant period. Those involved selected a wide range of different cases (though none involving LiPs or raising obvious confidentiality issues). This was designed to see if they bring up any different issues from the parties’ perspective. They also cover a wide range of different size of cases, so the number of skeletons available range from 1 up to 5 or 6, to see how the system handles them. So far there have been no problems, and no-one has objected to inclusion in the pilot. A QR code is also being securely posted outside the courtroom to assist persons attending the hearing in person to access the same documents. The pilot will be reviewed with a view to expand for the new legal year. Converting the pilot into a permanent feature will require some new rules, and there is a difficult timing issue as to when the skeletons are available for download (a wrinkle in reporting privilege) which needs to be resolved. There are also resource implications that have to be overcome.
 
You have mentioned that you have been unable to find archive cases from the Court of Appeal Livestreaming that are accompanied by skeletons. I confess, I do not know the position under the pilot as to the time period in which the skeletons are available. The primary aim was to support those watching the livestreaming. I can see, however, that there may be those who do not watch the footage live, but return to it at some later point. There are unresolved issues about for how long the Court makes material available to support open justice.’

The pilot needs to address civil trials and not merely appeals. I refer to ‘Reflections on the Concept of Open Justice’ by Debbie Mortimer, Chief Justice of the Federal Court of Australia (an edited version of the Seabrook Chambers Public Lecture given at Melbourne Law School on 2 October 2024), where she said:

‘Digitisation enables the Court to produce publicly available online files. Online files are an important component of the Federal Court’s work. These are established where the Court expects there to be considerable community interest in a proceeding. Online files enable direct and immediate access by non-parties to filed court documents such as pleadings, affidavits and expert reports, with no inspection processes required and no intermediaries. Documents may be uploaded progressively; for example, affidavits are unlikely to be available until after they have been read in open court and any objections to parts of affidavits have been ruled upon.
 
Online files make the media’s reporting job a lot easier and quicker. They encourage accuracy and fairness by providing source documents and enable members of the community to read parts of the evidence for themselves. Where non-disclosure or suppression orders have been made, documents can be redacted and then uploaded, which still enhances accessibility.’

In Australia first instance trials in the Federal Court are video streamed and remote observers have access to relevant documents. She continued:

‘For example, at the moment, O’Callaghan J is running the defamation trial in Melbourne brought by Mrs Moira Deeming against Mr John Pesutto. On the landing page of the Federal Court website, you can see a notification that the online file has been updated. You can click through a wealth of evidence, orders, submissions and the pleadings. People who are interested can read the evidence directly for themselves, and see for themselves how the parties are making their arguments. This trial is also being livestreamed. When I checked in on Tuesday 1 October 2024, there were 1,300 people watching the livestream
 
Accessibility has been considerably enhanced by livestreaming proceedings via the Court’s YouTube channel. There are prohibitions on recording livestreamed proceedings, which may provide a challenge in terms of enforcement, and in terms of what constitutes a recording. However, it is these prohibitions, and other policy reasons, which mean livestreamed proceedings are generally not stored or available after the date they are streamed. Livestreaming with recording prohibition is intended to duplicate the experience of sitting in a courtroom and watching a proceeding. The Court’s livestreaming facility is intended to allow the viewer to observe and experience the moments of a proceeding as they occur. It is not designed to enable a viewer to go back over anything that has been recorded’

I understand that federal civil trials in the USA are similarly accessible. In his speech Nicklin J described the position in the US federal court:

‘In the area of digital access to documents relating to proceedings in Courts and Tribunals, and delivering a system that is fit for purpose, we can perhaps learn much about what can be achieved by looking across the Atlantic to the US Federal Court System. It uses a digital case management and public access platform known as PACER (external link) (Public Access to Court Electronic Records). PACER is the primary system for public electronic access to federal court records. It provides access to over 1 billion documents from federal appellate, district, and bankruptcy courts. PACER is integrated with the case management platform used by court staff and parties to file and manage cases electronically, ensuring that PACER users see the most current information relating to a case. Anyone in the US can register for a PACER account to search for and view case information. Users then search by case number, party name, or court and view dockets, court opinions or judgments, and filed documents. There is a fee structure: typically 10 cents per page (maximum $3 per document), with a fee waiver if usage is under $30 per quarter.’

Nicklin J has written to me drawing my attention to the Transparency and Open Justice Board’s Key Objectives published in July 2025 after full public engagement. Paragraph 2(2)(b) deals with access to the evidence considered by a Court (unless the Court makes an order withholding it). It states:

‘Save where the Court or Tribunal is satisfied that the relevant document (in whole or in part) must be withheld, timely and effective access to the core documents relating to the proceedings that are held by the Court or Tribunal [should be given], including:
 
(a) the document that identifies the principal subject matter of and issues in the case e.g. a Claim Form (and other Statements of Case), Summons or Appeal Notice in a civil or tribunal case, or the Charge or Indictment in a criminal case;
 
(b) the evidence (including any expert and/or audio/visual evidence) that is, or has been, considered by the Court or Tribunal at a hearing in public;
 
(c) any written submissions (including skeleton arguments) that are, or have been, considered by the Court or Tribunal at a hearing in public;
 
(d) any application that seeks a derogation from the principles of open justice; and
 
(e) any judgments, written decisions or Orders of the Court or Tribunal

He says:

‘The Key Objectives are high-level principles and the devil is in the detail. If people are required to pay £626 to obtain access, then openness is an illusion and is available only to the wealthy. You are not alone in raising this issue.
 
We are working on making more documents available via the online platform CE-File. A CPRC sub-committee (led by TOJ Board member Cockerill J – soon to be Cockerill LJ, Deputy Head of Civil Justice and Chair of CPRC) is looking at improving public access to documents has proposed a pilot scheme for online provision of documents which enter the public domain. Such documents would then be available to the public in the same way that claim forms, pleadings and orders are already. This pilot has received in-principle approval, and is currently awaiting ministerial sign-off – it is expected to launch in the Commercial Court, Financial List and London Circuit Commercial Court after Autumn 2026. This will represent a step-change in provision of documents relating to civil proceedings to third parties. The issue of fees for access to documents is on my radar. I have spoken in admiration of the PACER system in the US Federal Court. They have quite a neat fee structure. Fees, however, are a matter for MoJ. But we work in partnership on open justice.’

This represents a major step in the right direction. The elephant in the room remains post-divorce financial remedy (ancillary relief) cases, as to which see my previous monograph. On 23 May 2025 Cobb J (as he then was) gave judgment in a financial remedy case where the main issue was the weight to be given to a post-nuptial agreement: PN v SA [2025] EWFC 141. The couple had three children aged 9 to 17, but there were no disputes about their upbringing. The wife was awarded £231 million.

The entire judgment was anonymised, but no reason was given in it for the court taking this course. This was one of the biggest awards ever made by a civil court in England. It was a little under half of the highest ever award made against an individual by an English court – the £700 million awarded against the estate of Dr Lynch in favour of Hewlett Packard by Hildyard J. The highest ever personal injury award is thought to be around £40 million.

Yet Cobb J’s award is shrouded in scenery. He dispenses justice, in effect, in our names yet we are not allowed to know in respect of whom.

If there were an appeal it would be heard and reported completely openly. The policy (if there is one) is not merely incomprehensible; it is unlawful. We have seen that the court can only lawfully made an order for anonymity if it is satisfied by clear and cogent evidence that by nothing short of such an order can justice be done. There is no indication in the judgment that an order was made to that end. I respectfully suggest that the decision to issue the judgment anonymously was unlawful.

X Small jurisdictions which guarantee financial confidentiality

Should the open justice principle be modified in cases proceeding in such jurisdictions? Having obtained its removal from the EU’s grey list, I would venture to suggest that it would be a step in the wrong direction for this Overseas Territory to gain a reputation as a place where justice was ‘tried in holes or corners, or in any place, where the gates are shut and barred’. The best way, surely, of promoting the virtue of lawful confidentiality is to guarantee that anyone who seeks to take advantage of it in an unlawful or corrupt manner risks having their conduct exposed in the full glare of a public trial.

I have considered the Confidential Information Disclosure Act 2016. It replaced the Confidential Relationships (Preservation) Law (2015 Revision) (‘CRPL’) , which in turn was the latest in a sequence of laws to that end stretching back to 1966. The CRPL had become widely regarded as an outdated banking secrecy law. It was apparently seen as inconsistent with the Cayman Islands’ commitment to global transparency and cooperation. The replacement law was a deliberate move to align the Cayman Islands with international standards such as tax transparency, mutual legal assistance, and anti–money laundering: see Asif, Corbett and Mitchell, Asset Recovery 2018. Under the CRPL, unauthorised disclosure of confidential information was a criminal offence punishable by up to two years’ imprisonment and a CI$ 5,000 fine, but no prosecutions ever occurred in its 40-year lifespan. The replacement law removed these criminal sanctions, shifting enforcement to the civil sphere.

I am sure that all local practitioners will be familiar with the 2016 Act, but for the benefit of those who work elsewhere I will attempt a short summary.

The Act covers any ‘property’ of ‘a person’, referred to in the Act as a ‘principal’. Property is defined in the widest possible way to include any financial interest of any nature, legal or equitable, tangible or intangible, vested or contingent, present or future, as well as ‘all documents and things evidencing or relating thereto’.

Specifically, the law applies to any person (‘A’) who has information about the property of a principal (‘B’) and who owes B a duty of confidence.

Under the general law a duty of confidence will arise where the information in question is of a confidential nature. It must not be something which is public property and public knowledge. Further, the information must have been communicated by the confider to the confidant in circumstances of confidence. Some relationships give rise to a presumption of confidence such as employee and employer, married couples, doctor and patient, and solicitor and client.

As to marriage, in Duchess of Argyll v. Duke of Argyll & Ors [1967] Ch 302 Ungoed Thomas J held that

‘there could hardly be anything more intimate or confidential than is involved in that relationship, or than in the mutual trust and confidences which are shared between husband and wife. The confidential nature of the relationship is of its very essence and so obviously and necessarily implicit in it that there is no need for it to be expressed. To express it is superfluous; it is clear to the least intelligent. …The plaintiff’s adultery, repugnant though it be, should not in my view license the husband to broadcast unchecked the most intimate confidences of earlier and happier days.’

Section 3 provides that certain types of disclosure by A shall be lawful, and there is nothing remarkable about that.

It is Section 4 that raises questions. It provides, as did its predecessor, that if A intends to or is required to give evidence in or in connection with any proceeding being tried, inquired into or determined by any court, tribunal or other authority, whether within or without the Islands and the evidence consists of or contains any confidential information within the meaning of the Act, A shall apply for directions in accordance with section 4 before giving that evidence, unless A has been provided with the express consent of B.

On the hearing of the application the judge may order that the evidence be given; or that some or all of the evidence shall not be given; or that the evidence be given subject to conditions which the Judge may specify whereby the confidentiality of the information is safeguarded.

As to this latter option the Judge may order that the divulgence of the document, statement, answer or testimony be restricted to certain named persons; and/ or that evidence be taken in private in a manner specified by the Judge to ensure privacy; and/or that the reference to the name, address and description of any person be anonymised the key to which shall be provided to restricted persons named by the Judge.

In considering what order to make the Judge is required to have regard to whether the order would operate as a denial of the rights of A; to any offer of compensation to B; and in any criminal case, to the requirements of the interests of justice. It is not clear why this latter rather obvious requirement is limited to criminal cases.

In In re Safeguard Management Corp (2017) Parker J held in the Grand Court that while the sec 4 application would be heard in chambers it is not to be treated as having been ‘cloaked in secrecy’ (unlike proceedings under the predecessor law which had to be heard in camera). There is no rule, he said, that says that the paperwork generated by a section 4 application cannot be referred to outside the application. Such a rule would be contrary to the principle of open justice. It is open to any party to apply for an order that all or part of the court file be sealed and/or evidence be given in private. Such an application must be based on a specific ground or exception that would justify it as being necessary for the administration of justice (i.e. must satisfy Viscount Haldane’s test).

One can readily see objections from a constitutional perspective about an order which, for example, prevented a wife in financial remedy proceedings from giving evidence about her husband’s numbered Swiss bank accounts. Such an order would surely deprive the wife of the right to a fair trial. But it would seem to be vanishingly unlikely that such an order would ever be made. Indeed, subsequent authorities, such as In The Matter of the Kuwait Ports Authority (unreported, 8 March 2022, Parker J), decide that the court will permit not only disclosure of confidential information in foreign proceedings but that the parties to such proceedings may disclose such information to related third parties.

But, at any rate in theory, such an order could be made under section 4. That law, democratically passed, reflects the wishes of the local polity. For the people of these Islands the maintenance of financial confidentiality can, it seems, be a consideration of a higher order than the right to a fair public trial in an individual case.

In Discover Investment Company v. Vietnam Holding Asset Management Limited and Saigon Asset Management Corporation [2018] (2) CILR 424 it was held that no application for directions under s.4 of the CIDA was required where the court determined that the party seeking to deploy confidential information in legal proceedings had a legal right to do so because it was arguably the victim of wrongdoing.

The Constitution

The Constitution was promulgated by the Cayman Islands Constitution Order 2009 (SI 2009 No. 1379), an executive order made by the UK Government in the name of the monarch, which took effect in November 2009. It has since been amended, most prominently in December 2020, when the Cayman Islands’ legislature officially changed from being called the Legislative Assembly to being known as the Parliament. On the same day the Citation of Acts of Parliament Law 2020 came into force. This mandated that any enactment previously titled as a ‘Law’, as well as any future statute, must be referred to as an ‘Act’.

Part I contains the Bill of Rights, Freedoms and Responsibilities. Secs 7(1), (9) and (10) say:

‘7.(1) Everyone has the right to a fair and public hearing in the determination of his or her legal rights and obligations by an independent and impartial court within a reasonable time. …
 
(9) All proceedings instituted in any court for the determination of the existence or extent of any civil right or obligation, including the announcement of the decision of the court, shall be held in public.
 
(10) Nothing in subsection (1) or (9) shall prevent the court from excluding from the proceedings persons other than the parties to them and their legal representatives to such extent as the court—
 
(a) may be empowered by law to do and may consider necessary or expedient in circumstances where publicity would prejudice the interests of justice, or in interlocutory proceedings, or in the interests of public morality, the welfare of minors or the protection of commercial confidence or of the private lives of persons concerned in the proceedings or
 
(b) may be empowered or required by law to do in the interests of defence, public safety, or public order.

Apart from the highlighted words the language is the same as the ECHR Art 6.

‘9. Government shall respect every person’s private and family life, his or her home and his or her correspondence.’

This corresponds to ECHR Art 8.

‘23 (1) If in any legal proceedings primary legislation is found to be incompatible with this Part, the court must make a declaration recording that the legislation is incompatible with the relevant section or sections of the Bill of Rights and the nature of that incompatibility.
 
(2) A declaration of incompatibility made under subsection (1) shall not constitute repugnancy to this Order and shall not affect the continuation in force and operation of the legislation or section or sections in question.
 
(3) In the event of a declaration of incompatibility made under subsection (1), the Legislature shall decide how to remedy the incompatibility.’

This corresponds to sec 4 Human Rights Act 1998.

In my opinion, if such an order were made under sec 4 of the CIDA 2016 , there would be a significant risk of the law being declared under sec 23(1) to be incompatible with section 7(1) of the Constitution.

But that is outside the scope of this speech.

I am also not going into the different statuses of the same words. In the Cayman Islands, the words describe constitutional rights. In England, the words give rise to a safety net that ensures that domestic law does not infringe our international obligations.

Does this difference make a difference?

I leave it to you to ponder.

I leave you with these words of Brenda Hale in her brilliant, recently published, book With the Law on Our Side (Vintage, 2025):

‘We believe in open justice in this country. Not for us the secret courts in totalitarian States where no one – not even the people involved, let alone the general public – knows what is going on. Judges should go about their work in the public gaze. It helps to keep them honest and well-behaved. It also helps to keep the public informed about what is being done in their courts.
 
The courts (mostly) sit in public. Anyone can wander in from the street to see what is going on, as I just did …But a lot of what goes on in courts is pretty incomprehensible unless you are involved in the case or have some sort of explanation.
 
How difficult would it be to provide one?
 
Open justice also means that the press and other media should be free to report the goings-on in court so that it reaches a wider public. This used to be far more common than it is now – press reporting is just as vulnerable to cuts as are the courts. But in the Supreme Court the hearings are filmed and live-streamed.
 
Anyone can watch in real time or go back into the Supreme Court’s website and watch old hearings. A few are even broadcast on television. Not surprisingly, there are calls to broadcast the proceedings in other courts. Small steps are being taken – for example, broadcasting the judge’s sentencing remarks in high-profile cases. I am all in favour. We didn’t find that people played to the gallery in the Supreme Court and anything that helps to demystify the law and the justice system is a good thing in my book.’

Thank you for listening to me.

Annex 1

The Parkinson’s community is very interested in any litigation which asserts that the disease is not idiopathic but is caused by chemicals such as trichloroethylene or paraquat. We are also interested in litigation about patents covering standard Parkinson’s medications, particularly enzyme inhibitors.

On 22 November 2023 the Court of Appeal handed down its judgments in Holmes v Poeton Holdings Ltd [2024] KB 521, CA. The issue was whether the defendant’s breach of duty in exposing the claimant to unsafe levels of Trichloroethylene (TCE) had made a material contribution to his contraction of Parkinson’s disease. The judge held that it had; the Court of Appeal, on exactly the same material, held that it hadn’t. Of course, this case was of enormous interest to the Parkie community.

However, the recording of the appeal hearing, which took place on 25 and 26 July 2023, is not available in the video archive.

I have not been able to establish the criteria which determine why some cases are in the archive but others are not.

The headnote says:

‘The judge in the present case had adopted the correct legal test on causation but although it was established that exposure to TCE was a risk factor for the development of Parkinson’s disease, the evidence before the judge did not establish that exposure to TCE could cause or materially contribute to the causing of Parkinson’s disease; and that, accordingly, the judge’s finding that tortious exposure to TCE had caused or materially contributed to the claimant’s disease was not sustainable on the evidence and was wrong.’

In his judgment Stuart-Smith LJ stated:

’95. The causation of Parkinson’s disease is poorly understood. It was common ground, as the judge recorded, that it “probably involves the loss or damage of dopaminergic neurons in the brain”. Professor Edwards (the expert on neurology instructed on behalf of Mr Holmes) went on to describe …
 
96. The evidence of Professor Schapira (the expert on neurology instructed on behalf of Poeton) was that the only unequivocal causes of Parkinson’s disease identified to date are genetic mutations. Overall these account for approximately 10–15% of Parkinson’s disease with the remainder being “idiopathic”.
 
99. There is no doubt that TCE is neurotoxic. There is also no doubt that it operates in different ways and with different results. The evidence of Professor McElvenny (the epidemiologist instructed on behalf of Mr Holmes) was that: …
 
101. Professor McElvenny and Professor Jones (the epidemiologist instructed on behalf of Poeton) included in their joint statement: … We agree that causal associations in epidemiology …’ (emphasis added)

So, in order to have a successful podcast about this case I needed to understand the expert evidence. I therefore wrote to Underhill LJ on 4 July 2024:

‘Holmes v Poeton Holdings Ltd [2023] EWCACiv 1377
 
This decision is of considerable interest to the Parkinson’s community in England and Wales and elsewhere.
 
It will be discussed at a recording of an episode of the award winning podcast Movers and Shakers scheduled to take place on 27 August 2024.
 
For this purpose, I would wish, please, to see the following documents
 

1. The judgment of Judge Harrison dated 21 September 2022
    
2. The individual reports of the expert epidemiologists, Professor McElvenny (claimant) and Professor Jones (defendant) and of the joint statements made by them
    
3. The individual reports of the expert neurologists, Professor Edwards (claimant) and Professor Schapira (defendant) and of the joint statements made by them
    
   I apply for copies of these documents to be made available to me from the records of the court (they would have been in the appeal bundle) pursuant to CPR 5.4C(2), for which purpose I need your permission. I assume that your clerk will have access to a digital bundle and would with little difficulty be able to extract these documents and email them to me.
    
   As I do not have access to law stationery, I ask that you waive the requirement to make this application under CPR Part 23 (see CPR PD 5A para 4.3).
    
   Further, I ask you not to require service of this application on any of the parties. I want to avoid the possibility of being drawn into any possible type of satellite litigation in circumstances where the principles are extremely clear namely that these documents should be made available to me and my colleagues in order that we can make full sense of the judgments of the Court of Appeal’

The reply on 8 July 2024 was perfectly polite:

‘Sir Nicholas’s request is under CPR 5.4C for the Court to supply him from its records with (a) a copy of the judgment of the County Court in Holmes v Poeton Holdings Ltd (case reference G14YJ691), and (b) the expert reports of the two epidemiologists and the two neurologists, together with their joint statements. The position as regards those two parts of the request is different.
 
As regards (a), the judgment of the County Court was given in public and he is accordingly entitled to a copy of it as of right: see paragraphs (1) (b) and (3) (d) of under rule 5.4C. No doubt it could be obtained from the County Court, but since the Court of Appeal has a copy it can be sent to him with this decision.
 
As regards (b), the Office has confirmed that these documents are indeed available on the CE-file system, as part of the bundles submitted to the Court for the hearing of the appeal. But, on the assumption that they are therefore part of “the records of the court”, they are covered by paragraph (2) of rule 5.4C. Copies can accordingly only be supplied if the Court gives permission, and permission can only be given if (a) an application notice has been filed in accordance with CPR 23 and (b) the prescribed fee (which I understand to be £626) has been paid: see CPR 5.4D (1) and paragraph 4.3 of Practice Direction 5A.
 
Sir Nicholas asks for the requirement to make the application under CPR Part 23 to be waived because he does not have access to court stationery. If his only concern is indeed about accessing the prescribed form (the use of which is mandatory – see CPR 4 (1)) it can be downloaded free from https://www.gov.uk/government/publications/form-n244-application-notice. If, however, he is asking to be released from the obligation to file an application under Part 23 at all, pursuant to rule 23.3 (b), I can see no basis for doing so: the default position is that a formal process should be followed, and that has a purpose (including giving notice to the parties – see what I say below). Accordingly, copies of the expert reports and the joint statements can only be supplied if he has filed an application using the prescribed form and paid the prescribed fee. The Office should do what it can to facilitate the process, for example, by supplying him with the addresses and references of the parties’ solicitors and ensuring that the application once made is dealt with expeditiously.
 
Separately, Sir Nicholas asks for a direction (apparently pursuant to paragraph 3 of Practice Direction 23A) that the application should not be served on the parties, because he wants to avoid the risk of them objecting to his request, in circumstances where he believes that there can be no valid basis for objection. Any such direction would be premature because he has not yet filed the application. However, it may be helpful if I express a provisional view. I quite understand his concern about undue formalism and am very alive to the importance of open justice; and he may well be right that, in view of the observations in the case-law, there is in the present case no valid ground for objecting to the disclosure of these expert reports. But nothing in his application, or my recollection of the case, satisfies me that that is something which the Court should take for granted so as to deprive the parties of the opportunity to raise any objections and/or to suggest conditions: one possibility, for example, is that some of the reports may contain personal information about the claimant that was immaterial to the Court’s decision and/or to the purposes for which Sir Nicholas is interested in seeing them. He should address this question as part of the application if he chooses to pursue it. He may also wish to consider approaching the parties or their solicitors directly. If they are content to give copies of the reports to him (subject, perhaps, to some redaction) there will be no need for an application: if they no longer have copies the Court will be pleased to send them to them on request and without formal application. For the avoidance of doubt I have no objection to Sir Nicholas showing the parties this decision.’

I responded on the same day:

‘Dear Marie (if I may)
 
Thank you for the judgment.
 
For all its successes the podcast is quite strapped for cash and paying £626 to get hold of these documents would be hard to justify to my co-hosts. I am therefore going to see if I can get them free of charge via the CE system and if not then from the solicitors. Would it be too much to ask if you have on file email addresses of the solicitors?
 
With best wishes

And, later, again the same day

‘Dear Marie
 
You may be interested to know that there are no documents publicly available via the CE_filing system, which I would respectfully suggest needs looking at in the interests of transparency
 
I am now going to email the solicitors’

The Court Office replied:

‘The only documents which could be made available to the public on CE File in the Court of Appeal are judgments or orders given or made in public (pursuant to CPR 5.4C(b)). Although CPR 5.4C(a) refers to statements of case, which might be thought to include an appellant’s notice, “statement of case” is defined in CPR 2.3(1) and does not include an appellant’s notice. I understand that the Civil Procedure Rules Committee is looking at the rules in Part 5 relating to the provision of documents from the court file.
 
When the Court of Appeal moved to CE file a decision was taken not make orders or judgments automatically available on CE File, but rather to deal with requests for copy documents by email. This decision was taken because the Court office wished to ensure that only those orders available under CPR 5.4C(b) were provided to non-parties. Additionally Court of Appeal judgments are already publicly available on the National Archives website.’

Fortuitously the solicitors for Mr Holmes were kind enough to give me copies of the reports of McElvenny and Edwards and the joint statements, which led to a very successful episode being recorded and released on 5 October 2024.

You can see, however, that my efforts to have a complete understanding about this case were denied by the Court of Appeal which was not able to give me access to a recording of the appeal and refused me access to the key expert evidence.

I had an equally frustrating experience when trying to watch Newron Pharmaceuticals SPA v Comptroller-General of Patents, Trade Marks and Designs [2024] EWCA Civ 128 an appeal from Recorder Douglas Campbell KC [2023] EWHC 1471 (Ch). The stream is available at https://www.youtube.com/live/UI6k-0nsEgs.

It was an appeal against a refusal to extend the patent of XADAGO, which is known as Safinamide, a MAO-B enzyme inhibitor, like Rasagiline, which works in the brain by slowing down degradation of levodopa. It is not same as the Peripheral Decarboxylase Inhibitor which is integral part of all levodopa medications or the COMT inhibitors such as opicapone, which work outside the brain.

The recording was impossible to understand without having access at the very least to the skeletons. Accredited law reporters and accredited media reporters physically present at the Court of Appeal at the hearing of the appeal would have been given copies of the skeletons under CPR PD 52C para 33 free of charge. I cannot understand why they are not attached to the video stream.