Jersey Unreported Judgments

Application for the redaction of a published judgment

[2025]JRC003

Royal Court

(Samedi)

3 January 2025

Before     :

R. J. MacRae, Esq., Deputy Bailiff, and Jurats Averty and Le Cornu

 

The Plaintiff did not appear and was not represented.

Advocate S. Young for the Defendants.

Advocate J. Dickinson for the Applicant.

judgment

the deputy bailiff:

1.        The Court sat to hear a summons issued by Mr Kalouti, ("the Applicant").  The Applicant sought an order that he be joined to the above titled proceedings for the purpose of applying for orders, including that the judgment reported at Hellard and Richardson v Young and Young [2020] JRC 113A be redacted so as to protect his identity and / or a disclaimer added to the beginning of the judgment to the effect that he was not notified of the Plaintiff's application or given an opportunity to make representations or provide evidence, and that the disclaimer, which in our view should properly be described as an "endorsement", should add that the judgment does not contain conclusive findings against him or findings binding upon him.

2.        Advocate Young, although he has not advised the Applicant since 2014, some eight years ago, attended the hearing and assisted in making representations.

3.        The Plaintiff did not appear and was not represented as the liquidation of the three companies in question apparently concluded some time ago. 

Background to the application

4.        It is not necessary or appropriate to set out the detail of the judgment dated 15 June 2020 ("the 2020 Judgment").  In briefest summary, the Plaintiff liquidators' claim for what is known as Norwich Pharmacal Relief arose out of the liquidation of the three Companies defined in the judgment as Durant, Kildare and MacDoel, entities ultimately owned by the Maluf family.  The principal creditors of the Companies were Brazilian authorities, including the Federal Government of Brazil and the municipality of Sao Paulo.  They were owed between $160 and $170 million.  In 2012, the Royal Court judgment held that Durant and Kildare received the proceeds of fraud committed by members of the Maluf family in Brazil in 1997 and 1998.  Both companies received the assets with knowledge that the funds were tainted because of the Maluf association with the ultimate ownership and control of those companies.  That judgment contained no findings adverse to the Applicant. 

5.        However, the Applicant was described in the 2020 Judgment (and this remains unchallenged) as having long-standing links with the Maluf family, having acted as an adviser to them at various times and, significantly for the purpose of the application before the Court in 2020, was a director of all three Companies from time to time and, importantly, a director of all three Companies in 2007, at which time he was the sole director of Kildare.

6.        It was in 2007 (paragraphs 12 to 15 of the judgment) that the Applicant commenced proceedings in the Royal Court against the three Companies for unpaid management fees due to him.  The Plaintiff said that the Applicant would have anticipated that if he had commenced legal proceedings against the Companies, only he could have organised a defence for the Companies to defend his claim.  It was not suggested that there was any wrongdoing on the part of the Defendants in prosecuting these claims as they did.  The Applicant obtained judgment in default and the Companies made a payment to him via the Defendants of just under three quarters of a million pounds. 

7.        The Plaintiff's Order of Justice sought disclosure from the Defendants in respect of their knowledge of the party to whom the Defendants remitted the funds they received in November 2007 and connected information.  This they provided, we understand, in May 2020 and these proceedings effectively concluded at approximately that time.

8.        The Court's conclusions when applying the Norwich Pharmacal test to the facts of this case are set out at paragraph 24 and 25 of the 2020 Judgment.  It is not suggested that the Court was wrong to reach those decisions and the 2020 Judgment was never appealed.

9.        The Applicant has sworn an affidavit in support of this application.  This records, in summary, that he has had an extensive career in the financial services industry, principally, in recent years, in Switzerland.  He was unaware of the 2020 proceedings and, even after the "gagging order" preventing the Defendants from notifying him of the proceedings had expired, he was not informed of the disclosure order. 

10.     He first learned of the 2020 Judgment - almost two and a half years after it was published - on 2 November 2022 when he was in the process of selling his business for a substantial sum after six months of negotiation.  He informed his clients of the likely impending sale and the transaction was proceeding smoothly until a member of the board of the purchasing company came across the 2020 Judgment, resulting in an immediate suspension of the sale.  Prior to this time, the purchaser would have been aware of the public judgments in relation to the Applicant's connection with Mr Maluf as they had been disclosed during negotiations.  The Applicant had not disclosed the 2020 Judgment as he had not known about it. 

11.     Apparently, the 2020 Judgment was not revealed by the proposed purchasing entities initial due diligence checks. The Applicant was embarrassed by the discovery of the 2020 Judgment, the judgment proved "fatal" to the sale and the proposed deal was terminated.

12.     The Applicant focuses on various allegations made by the Plaintiff, as recited in the 2020 Judgment as the central cause of his concern, which are contained at paragraph 9 and 10 of the 2020 Judgment, including the liquidator's assessment that the Applicant was a participant in a fraud and was a money launderer.  The Applicant says:

"I wish to be clear that I did nothing wrong, either in my work as an investment manager or in relation to the 2007 proceedings.  If there was any fraud or money laundering, I did not know about it.  My role was to manage investments and to help administer the corporate structure, which role I performed professionally and responsibly.  As to the 2007 proceedings, these were handled by reputable Jersey advocates, who I instructed on the advice of my Swiss lawyers and the steps taken were open and transparent.  If I had been given the opportunity to make representations at the hearing of the '2020 Proceedings', I would have denied the plaintiffs' allegations in the strongest terms."

13.     The Applicant goes on to say that no adverse finding has been made against him in Jersey, Brazil or anywhere else in proceedings.  He says that criminal charges brought against him in 2016 in Brazil resulted in his acquittal.  He does not face any other criminal proceedings anywhere.  As to the civil proceedings issued against him in 2009 by the authorities in Sao Paolo which are referred to at paragraph 11 of the 2020 Judgment, these proceedings continue, albeit fifteen years after they have been issued against him and twenty-five other people.  He says they have not reached a position where he is required to file a defence.  He does not know when, or if, these proceedings will ever come to trial.

14.     Further, the Applicant says that the 2020 Judgment has had an impact on not merely the proposed sale, but also on his professional and personal life, which are particularised.  They have also disrupted his business banking relationship with at least two banks.  It is fair to observe that many of the factual matters recited in the 2020 Judgment at paragraphs 3 to 15 inclusive including, for example, the Applicant's relationship with the Maluf family and the circumstances of the 2007 proceedings, are not dealt with in the Applicant's affidavit and are accordingly presumably not disputed.  Nonetheless, the Applicant disputes in explicit terms the allegations of dishonesty and criminal conduct made against him, as referred to above. 

15.     I now turn to consider the matters that were argued before us.  The 2020 Judgment has now been published in Jersey on the JLIB website for in excess of four years and was referred to in a subsequent Jersey authority in 2021.

The Applicant's application to join the proceedings for the purpose of seeking various orders

16.     The Applicant seeks to be joined to these proceedings for the purpose of seeking the relief sought in his summons.  Rule 6/36(b)(ii) empowers the Court "at any stage of the proceedings" to add as a party "...any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which in the opinion of the Court it will be just and convenient to determine as between that person and that party as well as between the parties to the cause or matter...".

17.     In IBL Limited v Planet Financial and Legal Services Limited (Royal Court 21 June 1990), Tomes, Deputy Bailiff, giving the judgment of the Inferior Number, permitted persons leave to intervene who were affected by Jersey proceedings.

18.     In those proceedings, the plaintiffs obtained an ex parte order against the defendant seeking disclosure of documents held by the defendants.  This was also a Norwich Pharmacal case.  New proceedings were afoot when the application to intervene was made by the applicants who the Court held were "affected by the allegations of fraud made against them and therefore...they should be permitted to be heard".  The Court noted that the relevant Royal Court Rule provided the Court with an absolute discretion to add as a party to proceedings any  persons whose presence before the Court was "necessary" to ensure that all matters in dispute would be completely determined and adjudicated upon.  Of course, in that case the proceedings were still afoot.  In this case the proceedings concluded over two and a half years before the Applicant learnt of the existence of the 2020 Judgment.

19.     Our attention was also drawn to the English decision of the Queen's Bench Division in MRH Solicitors Limited v The County Court Sitting at Manchester and Others [2015] EWHC 1795.  In that case, in October 2014, a Recorder in the Manchester County Court gave a judgment at the end of a four day trial, dismissing a claim for personal injuries and consequential loss on the grounds that the underlying accident was staged and the claim was fraudulent.  He found that the solicitors for the claimant driver in that action, MRH Solicitors, were party to the fraud, as were others.  Neither the solicitors nor the hire car companies, who were also said to be involved in the fraud, were parties to the proceedings nor had they been given any warning that the findings might be made.  The Recorder later approved a transcript of the judgment which included these findings.  By proceedings for judicial review, the solicitors and hire car companies sought to undo what they said was a breach of natural justice resulting in their integrity being unfairly impugned.  They also sought to quash parts of the approved judgment.  Giving the judgment of the Queen's Bench Division, Nicol J said that the applicant parties could have applied to be joined as parties pursuant to Rule 19.2 of the Civil Procedure Rules on the footing that there was an "issue" involving the new party and an existing party which was connected to the matters in dispute in the proceedings, and it was desirable to add the new party so that the Court could resolve that issue.

20.     The Court's permission was required to add a new party, and had the Recorder refused to allow joinder or decline to accept that he had the power to amend the transcript, or alternatively had he declined to do something in his power to do so, an appealable decision would have been generated.

21.     Nicol J said:

"24. In the unlikely event that something similar to this should happen in the future, in our view the right course would be for the third party who believes they have been unfairly criticised in a judgment to apply to be joined as a party. We emphasise that we are not saying that a third party who is criticised will necessarily be entitled to be joined as a party. There are many cases heard in the civil courts (and also family and criminal courts) where the conduct of an absent person falls to be considered. For example, in a conspiracy case not all the alleged conspirators may be before the court as parties or witnesses. In complex commercial frauds it may well be part of the case that an absent person or institution was party to dishonest conduct somewhere in the chain. Everything will depend on the facts of the individual case. The facts of this case are unusual. The solicitors stigmatised as party to fraud were in court acting for one of the parties."

22.     Nicol J added:

"25. So far as the Recorder thought that he had no power to change a transcript which accurately recorded what he had said in his ex tempore judgment we disagree. There may be a confusion here. The trial and judgment of this road traffic claim all took place in open court. The public were free to attend and such hearings are to be treated as public whether or not anyone was present other than those immediately involved with the case. Subject to immaterial statutory exceptions or contrary orders of the Court, what takes place in open court can be freely reported. In a sense, therefore, the Recorder was right that this genie could not be put back in the bottle.

26. However, it is common practice for a Judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes. In Day v Harris [2014] Ch 211 CA, for instance a judge added a passage to the transcript which had not been included in his oral judgment. The Court of Appeal described this as "unfortunate" because the addition was made long after the trial and it added a finding of fact on a controversial issue.  The Court did not suggest that the Judge was disempowered from changing his oral judgment and there would have been no comparable objection to an alteration in the present case. If, as in this case, the order of the Court consequent on the judgment has been sealed, the changes cannot usually alter that order. Otherwise, though, it is a matter for the Judge's discretion as to what changes are appropriate."

23.     The High Court went on to hold that notwithstanding the existence of alternative remedy, it would not decline to entertain the proceedings for judicial review.  The fact that the Court had identified a potential procedural route by which the applicants had access to in appellate court did not mean that it would be right to "shut the judicial review door".  

24.     The Court went on to note that the Recorder's finding that the solicitors' firm had been fraudulent was graphic - describing them as being "elbows deep in fraud". The High Court said at paragraph 34:

"In the absence of good reason a judge ought to be extremely cautious before making conclusive findings of fraud unless the person concerned has at least had the opportunity to give evidence to rebut the allegations."

25.     The applicant sought an order to excise or quash the parts of the Recorder's judgment that alleged that the solicitor had been fraudulent or dishonest.  The High Court said it was unable to make such an order and said at paragraph 43:

"All we can do is to say that the Recorder was not entitled to make a conclusive finding of dishonesty or fraud against MRH and they should be treated as not having such a finding made against them."

26.     As there were outstanding issues in relation to costs, the High Court gave guidance to the County Court as to how to deal with such matters.  At paragraph 57, the High Court offered a number of "reflections", including that the Recorder ought not to have made the findings which he did, that MRH Solicitors had behaved "fraudulently and dishonestly".

27.     The Court went on to suggest that the Recorder might need to recuse himself in relation to the issue of costs as this was a "case where the judge has already expressed views that are more than provisional but firm and conclusory" (paragraph 57(iii)). 

28.     In this case, Counsel accepted that the Court must be entitled to take into account any delay in applying to be joined to proceedings.  It was said that the Applicant was not aware of the 2020 Judgment until November 2022 and had instructed Dickinson Gleeson in July 2023.  He first issued a summons in November 2023 - a year after he discovered the existence of the 2020 Judgment -and the summons before the Court was issued on 19 January 2024.  It was submitted that parties had a continuing right to revisit judgments which had been issued and which might have an effect upon them, particularly where they had no right of appeal as they were not a party to the proceedings in the first place.  It was accepted that there could be no judicial review of a judgment of the Royal Court as it is a superior court.

29.     It was submitted that the Court could not be held to be functus officio in relation to these issues as the Court had never been asked to determine the questions raised by the Applicant in his summons, namely that the 2020 Judgment be redacted and / or subject to an endorsement as sought.

30.     Counsel for the Applicant referred to the decision of the Royal Court in RBC Trustees (CI) Limited & Others v John Bisson & Others [2007] JRC 211 ("RBC v Bisson and Others"), where the Royal Court revisited its decision that the respondent law firm should cease representing a corporate entity in certain proceedings subject to a reasoned judgment dated 27 July 2007.  The Court needed to revisit its July 2007 decision, (referred to in paragraphs 16 to 20 inclusive of the judgment) owing to a change in circumstances.

31.     When considering the question of functus officio, Birt, Deputy Bailiff, made the following observations:

"16.      The general position in relation to functus officio was not in dispute between the parties.  The principle was conveniently summarised by Bailhache, Bailiff in Jersey Evening Post Limited v Al Thani [2002] JLR 542 at 550:-

"A court is functus when it has performed all its duties in a particular case.  The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even where a decision has been communicated to the parties.  Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected.  The purpose of the doctrine is to provide finality.  Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its rulings on adjudication must be taken to a higher court if that right is available."

17.      It is agreed that, in this case, the order reflecting the outcome of the July judgment has been perfected and issued.  However, the principle only applies to decisions which can be regarded as final.  To be final a decision does not have to dispose fully and completely of the case.  So, for example, in a personal injury claim, judgment on liability, even where consideration of quantum is deferred, cannot be revisited by the first instance court.  The only remedy of a dissatisfied party is to appeal the court's decision on liability. 

18.      The principle does not apply to a decision which, by its nature, is interim or requires continuing monitoring.  Thus the Court regularly makes case management decisions in connection with the progress of a case to trial and then varies such decisions in the light of changed circumstances.  Similarly, the Court may vary from time to time the terms of an interim injunction and may indeed go so far as to discharge it and then re-impose it.  A further example would be where the Court is providing ongoing guidance and direction in connection with a trust.  This is a continuing obligation and the Court may re-visit its position from time to time in the light of new developments.  The Al-Thani case itself is another example of a continuing obligation.  The case concerned an order prohibiting the reporting of in camera proceedings and the Court held that the prohibition imposed a continuing obligation so that, if circumstances had changed, it was open to the Court to review or discharge its order.   

19.      Thus, when determining whether it is functus, a court must consider the nature of the decision which it is being asked to vary.  Mr Le Cocq argues that the decision that Appleby should not represent Gamlestaden in the Baltic proceedings is a final decision.  There was nothing more to be decided as between Abacus and Appleby.  The representation of Abacus had asked simply for an order that Appleby be prohibited from acting and this had been granted by the Court.  The suit between Abacus and Appleby was exhausted.  There was nothing provisional about the order.  The Court had granted the full extent of the relief sought by Abacus by granting the order prohibiting Appleby from acting. 

20.      The Court has carefully considered Mr Le Cocq's submissions but has concluded that it is not functus in this case.  Our reasons are as follows:-

(i)        The decision on legal representation must be put in context.  The real matter before the Court is the Baltic proceedings.  As part of its supervisory jurisdiction over the legal profession and in order to prevent abuse of its process, the Court will intervene as necessary where it concludes that it would be improper for a particular lawyer to continue to represent a particular party. 

(ii)       This must be a continuing responsibility for so long as the Baltic proceedings are before the Court.  Suppose, for example, that the Court had decided the other way in July and had ruled that Appleby could continue to act for Gamlestaden on the grounds that there was insufficient evidence to show a real risk that Appleby was in possession of relevant confidential information.  Suppose further that six months later, incontrovertible evidence were to be forthcoming that in fact Appleby was undoubtedly in possession of highly relevant confidential information obtained from Abacus.   It seems to us clear that, in those circumstances, the Court, as part of its continuing responsibility in connection with the conduct of the Baltic proceedings, would have jurisdiction to make an order prohibiting Appleby from continuing to act.  It would be nonsensical to insist on Abacus applying for leave to appeal well out of time against the earlier decision when the whole factual basis of that decision would have changed.    

(iii)      Mr Le Cocq did not concede that the Court would have jurisdiction in such circumstances.  He said that Abacus' remedy would be to seek leave to appeal out of time.  However, for the reasons given in the previous sub-paragraph, we do not accept this submission.  As a fall-back position, he submitted that, even if the Court was not functus in circumstances where it had refused to order Appleby to cease acting, it was functus where it had done so.  This was because Appleby was now out of the picture and had no continuing involvement in the Baltic proceedings.  The position had been finally resolved. 

(iv)      We do not accept this further submission of Mr Le Cocq.  It seems to us that the matter is correctly to be regarded as a form of interim order in connection with the ongoing responsibility of the Court for the conduct of proceedings before it and that this is so whether the initial decision is to allow the lawyer to continue to act or not.  Suppose that, following the July decision, a new firm had taken over the conduct of the Baltic proceedings.  Suppose further that, in two years time, that firm had to cease acting for good reason and suppose that all the other Jersey firms were by then also conflicted.  It seems to us that it would undoubtedly be open to this Court, in fulfilment of its continuing obligation to supervise litigation conducted before it, to re-visit the question of whether Appleby should be permitted to be re-introduced as Gamlestaden's lawyers in the light of the changed circumstances.  Mr Le Cocq, whilst accepting that it might be difficult in practice, suggested that, even in two years' time, the only avenue would be an application for leave to appeal out of time against the July decision.  It seems to us that that would be highly inappropriate.  The correct approach would be for this Court to consider the matter in light of the changed circumstances with either party having a right of appeal to the Court of Appeal against such decision at that time.  As Bailhache, Bailiff said in a different context in the Al Thani case, if circumstances have changed, it cannot be right to require a litigant to go to the Court of Appeal where the appellate court would have no inkling of the views of this Court on the merits or de-merits of discharging the original order. 

(v)       It seems to us that the order made in this case is analogous to an interim injunction concerning the preservation of assets, where the Court may undoubtedly vary or revoke its orders from time to time in the light of changing circumstances.  Such orders are ancillary to the main proceedings.  In this case the main proceedings are the Baltic proceedings.  The ancillary issue is the question of which firm of lawyers may represent Gamlestaden in those proceedings.  It seems to us that, until the Baltic proceedings have ended, the Court has a continuing jurisdiction to make such orders as it thinks fit concerning the question of legal representation in those proceedings and to vary such orders from time to time in the light of changing circumstances if the interests of justice so require. 

21.      For these reasons we hold that the Court is not functus officio and there is accordingly jurisdiction to consider the application of Appleby to revoke the order of 6^th July with a view to allowing Appleby to continue to act for Gamlestaden." 

32.     The decision of the Royal Court in Jersey Evening Post v Al Thani and Others [2002] JLR 542 ("JEP v Al Thani") was relevant to two issues we need to determine.  First, whether or not this application should be determined in private and, secondly, it was said that it was relevant to the Court's jurisdiction to make the order sought by the Applicant in this case.  In JEP v Al Thani, the plaintiff sought the discharge of orders made by the Court in proceedings under the Trusts (Jersey) Law 1984 and it was submitted that as the trust proceedings had been discontinued, the Court was functus officio and could not undo the orders it had previously made.  The Court held that it was not functus officio because the reporting prohibition made by the Court was a continuing obligation and if circumstances changed it was open to the Court to review or discharge the order.  In any event, the Court had an inherent jurisdiction to discharge the order if it was just to do so.  We have already considered the definition that Bailhache, Bailiff, gave of functus in JEP v Al Thani in the extract above from the decision of the Royal Court in RBC v Bisson and Others.  As to the issue before the Royal Court in JEP v Al Thani, Bailhache, Bailiff, made the following observations:

"10 Mr. Robertson argued that the discontinuance of the substantive trust proceedings had brought them to a close and that orders made in the context of those proceedings could no longer be reviewed. He continued that even if the court were not functus officio, any discharge of those orders could only have prospective effect. In relation to the first order in particular, the court could not undo retrospectively what it had done on October 10th, 2001.

11 We cannot accept those submissions for the following reasons:

(a) In relation to the second order, the prohibition of the reporting of the in camera proceedings is a continuing obligation. If circumstances have changed, it must be open to the court to review or to discharge its order. It cannot be right to require a litigant to go to the Court of Appeal where the appellate court would have no inkling of the views of this court on the merits or demerits of discharging the order.

 (b) In relation to both the first and second orders, the JEP intervened in the substantive trust proceedings before discontinuance by bringing this representation and the court is still seized of the issues raised by the representation. There has been no determination of those issues. It would be quite unjust to allow the discontinuance of the substantive trust proceedings, in relation to which the JEP was not heard, to bring to an end the court's jurisdiction to determine issues properly placed before it by the JEP.

(c) Even if the first order is effectively dead, the court has an inherent jurisdiction to discharge it if it is just to do so. In Governor & Co. of Bank of Scotland v. A Ltd.

(3), Laddie, J. was asked to discharge an Anton Piller order that was "more or less dead." He stated:

"There is no general rule or set of practice in this area. The court has a discretion whether it is to discharge even an expired order. In the circumstances of this case, I have no doubt that I should discharge. That is not an empty gesture."

We are satisfied that the court is not functus officio in relation to the issues raised by this representation."

33.     The difficulty with the Applicant's reliance on JEP v Al Thani is that the Court was dealing with an attempt to discharge an order previously made.  There, of course, can be appeals against orders and applications to set aside orders.  The Applicant's application is nothing to do with the order that was made by the Royal Court as recorded in the 2020 Judgment.  There is no suggestion that that order was improperly made or ought to be set aside.  The quarrel is with the terms of the judgment which the Court gave. 

Conclusions on joining the Applicant to the proceedings

34.     We do not think that the Applicant should be joined to these proceedings as a party.  This is for a number of reasons.  First, the proceedings are over and were concluded in 2020.  We accept that there is a discretion in the Court to join parties to proceedings where the proceedings are or may be live to any purpose, or where there are orders which have a continuing affect which may need to be revisited (see JEP v Al Thani).  But there is no "question or issue arising out of or relating to or connected with any relief or remedy claimed" in the proceedings which concluded in 2020.  Even if there were, it is not at this distance, "just and convenient" to join the Applicant to those proceedings for the purpose of seeking the order which he seeks.  It is simply too late.  In any event, it was over a year after his discovery of the 2020 Judgment that he made this application.  That is something we are entitled to take into account, as accepted by counsel for the Applicant. 

35.     Another reason that we do not think that it would be "just" to join the Applicant to the proceedings is that the case he makes is over-stated.  There were no findings adverse to the Applicant made in the 2020 Judgment.  The Court simply recited what was said by the liquidators, for example, at paragraphs 9 and 10 of the 2020 Judgment.  There were no findings that he was a "launderer in chief to the Maluf family".  That was simply what was said about him by the liquidators in those proceedings.  We are happy to record expressly in this judgment, for the avoidance of doubt, that there were no such findings made by the Royal Court in 2020 and it is not, in our judgment, appropriate or just for him to be joined to these proceedings for the purpose of either redacting the judgment or adding the "disclaimer" or "endorsement", as we describe it, as sought. 

36.     We know of no practice where such an approach has been adopted in a Jersey case and although it is accepted that there is a discretion to make amendments to judgments before and, exceptional cases, after they are handed down, that discretion should not, in our judgment, be exercised at this distance and in these circumstances.

Privacy

37.     The Applicant also sought an order that this summons be heard in private and that any consequential order affecting the judgment be private or redacted to protect his identity.  The Court did make such an order when the summons was heard but reserved its reasons for so doing.

38.     We referred above to the decision in JEP v Al Thani as one of the leading cases promoting open justice in Jersey.  The issue was revisited at some length by the decision of the Royal Court in HSBC Trustee (CI) Limited v Kwong [2018] JRC 051A ("Kwong").  In Kwong, an issue arose subsequent to a decision of the Royal Court as to whether or not the judgment should be published.  The Court noted that in the ordinary way, although the hearing was in private, it would be published in anonymised form.  However, it was agreed by the parties that it was not possible to anonymise the judgment.  Accordingly, the choice lay between not publishing the judgment at all or publishing it as delivered, including identification of the parties.  The Court ultimately adopted the latter course.

39.     It is not necessary to deal with the circumstances of that case as the judgment is lengthy.  However, the principles of public justice are set out at paragraph 16 onwards:

"Public justice

16. It is well established that open justice is a principle of fundamental importance to the rule of law. This is because it enables the public (usually through the media) to see what the courts are doing. It is a protection against injustice on the part of the courts. As Lord Woolf MR said in R -v- Legal Aid Board ex p Kaim Todner (a firm) [1999] QB 966 at 977:-

"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."

17. To like effect is a passage from Jacob, The Fabric of English Civil Justice at 22-23 (1987):-

"The need for public justice, which has now been statutorily recognised, is that it removes the possibility of arbitrariness in the administration of justice, so that in effect the public would have the opportunity of "judging the judges'; by sitting in public, the judges are themselves accountable and on trial."

18. Both of these passages were cited by Bailhache, Bailiff, in the leading case of Jersey Evening Post Limited -v- Al Thani [2002] JLR 542 where the Court held in clear terms that the principle of open justice also forms part of the law of Jersey. Having so held, the Court went on to say at paragraph 16:-

"The aim therefore is to do justice to the parties before the court. That aim must not be stultified by a rigid application of the principle that justice must be done in public. Yet the principle of open justice should not be displaced as a matter of convenience or expedience, or to avoid embarrassment to one or more of the parties, but only if it is necessary to do so in the interests of justice."

19. However, the principle of open justice is not absolute. It is subject to qualification. The court in Al Thani quoted at paragraph 14 the following well-known passage from the judgment of Viscount Haldane LC in Scott -v- Scott [1913] AC 417 at 437-438:-

"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity".

20. As matters have developed, in addition to procedural hearings as described at para 21 of the judgment in Al Thani, there appear to us to be at least three categories where public justice may yield to some other factor. These are (i) cases concerning minors or other persons under a disability; (ii) where sitting in public or issuing a public judgment would defeat the very objective of proceedings so that the court could not do justice; and (iii) where the right to privacy outweighs the interests of public justice.

21. Examples of (i) are public law cases concerning children e.g. whether they should be removed from their parents. An example of (ii) is where an injunction is sought to restrain disposal of monies pending trial or the provision of information to enable stolen assets to be traced on the basis that sitting in public would defeat the objective by enabling the proposed defendant to hide the monies in question; and examples of (iii) are proceedings for ancillary relief in matrimonial cases (see L -v- L [2016] 1 WLR 1259 where it was held that anonymisation of judgments in such cases should normally be made in order to preserve the privacy of the parties)."

40.     It is appropriate to have these principles in mind when setting out the relevant principles in civil proceedings.  In criminal proceedings, the relevant principles in respect of public justice have recently been considered at some length and re-stated in the case of AG v Williams [2023] (2) JLR 119.

41.     The key consideration is - as set out in Scott v Scott [1913] AC 417 ("Scott v Scott") as approved by the Royal Court in JEP v Al Thani and Kwong - the question of necessity.  The starting point is open justice and the burden lies on those seeking to displace its application and (not as a matter of discretion) to satisfy the Court that it is necessary for the case to be heard in private. 

42.     Our attention was drawn to the decision of the English Court of Appeal in Regina v Legal Aid Board Ex Parte Todner, (a firm) [1999] QB 966 ("Ex Parte Todner") where the Court considered the circumstances in which it might be appropriate to hold a case in private.  Reference was made to the decision in Scott v Scott, referred to above, and the statement by Sir Christopher Staugton in a 1998 Court of Appeal case (see page 977D of the judgment) where he said:

"When both sides agreed that information should be kept from the public that was when the court had to be most vigilant."

This was such a case.

43.     The Court of Appeal went on to say:

"The need to be vigilant arises from the natural tendency for a general principle to be eroded and from exceptions to grow by accretion as the exceptions are applied by analogy to existing cases.  This is the reason it is so 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."

44.     Although the application for Norwich Pharmacal Relief in this case was heard in private, the judgment itself was given publicly after the order had been complied with.  In fact, the hearing in this case took place subject to a provisional order that it be heard in private in circumstances where members of the public were in attendance but it was made clear to the Applicant that that was a matter that the Court would need to consider in its judgment. 

45.     In Ex Parte Todner, the Court of Appeal said it was important to consider the precise circumstances of the application to depart from the general rule (page 978B):

"6. In deciding whether to accede to an application for protection from disclosure of the proceedings it is appropriate to take into account the extent of the interference with the general rule which is involved. If the interference is for a limited period that is less objectionable than a restriction on disclosure which is permanent. If the restriction relates only to the identity of a witness or a party this is less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors.

7. The nature of the proceedings is also relevant. If the application relates to an interlocutory application this is a less significant intrusion into the general rule than interfering with the public nature of the trial. Interlocutory hearings are normally of no interest to anyone other than the parties. The position can be the same in the case of financial and other family disputes. If proceedings are ex parte and involve serious allegations being made against another party who has no notice of those allegations, the interests of justice may require non-disclosure until such a time as a party against whom the allegations are made can be heard.

8. A distinction can also be made depending on whether what is being sought is anonymity for a plaintiff, a defendant or a third party. It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule."

46.     In this case, the 2020 Judgment was delivered and then published.  Prima facie, the remedy should be, having regard to the concerns expressed by the Applicant, another public judgment and not an ex post facto attempt to redact or amend the published 2020 Judgment.

47.     In Prospective Applicant v Chief Officer of the States of Jersey Police [2019] JRC 032, Commissioner Clyde-Smith had to deal with an application to continue privacy / anonymity orders when leave was granted by him for a judicial review of the decision to refuse consent to the multiple operation of bank accounts in which the applicant had an interest. 

48.     The applicant was chief executive officer to a company that acted as an adviser to a hedge fund.  The applicant and others were parties to class actions in the United States in which they denied liability and were not subject to any regulatory or criminal proceedings.  The applicant had filed evidence to the effect that the lawsuit to which he was a party was common in the United States and rarely went to trial, and the claims against him were tenuous.  Evidence was placed before Court that only 1% of such filings reached a trial in the United States.  Having set out the principles in JEP v Al Thani and subsequent cases, Commissioner Clyde-Smith said this:

"24. In summary and in the context of this case, the general principle is that proceedings should be held in public and be freely reported, but that principle can be displaced if it is necessary to do so in the interests of justice. In considering the interests of justice, the Court will take into account the Article 8 Convention rights of the person concerned, as well as the countervailing right to freedom of expression under Article 10 of the Convention, but the consequences to that person of being identified must be sufficiently severe to justify the displacement of the general principle of open and freely reported justice."

49.     The Commissioner's conclusions were in these terms:

"28. I accept Advocate Redgrave's submission that there has been a developing judicial recognition that persons under police investigation have a reasonable expectation of privacy which is enforceable. In ERY v Associated Newspapers Ltd [2016] EWHC 2760 (QB), the High Court held that a suspect in a police investigation into financial crime has a reasonable expectation of privacy which is likely to outweigh the press's right to freedom of expression. In Sir Cliff Richard OBE v BBC [2018] EWHC 1837, an Article 8 Convention right to privacy was established in relation to a person who is being investigated for a crime prior to a charging decision and the corresponding need for a compelling, countervailing public interest before it is legitimate to identify that person.

29. The position in this case is different in that the applicant is not seeking to prevent publicity being given to a criminal investigation into the applicant's activities. Indeed, there is no such investigation. Instead, property in which the applicant has an interest has been effectively frozen, and the applicant's only remedy lies in the pursuit of civil proceedings, which ordinarily would lead to damaging publicity. There is a real difference, in my view, between disputed allegations of financial manipulation in civil class actions in the U.S. which are the subject of a regulatory investigation and it becoming publicly known that funds in which the applicant is interested have effectively been frozen in Jersey, because the police are suspicious that it represents the proceeds of the applicant's criminal conduct.

30. I accept the applicant's evidence both as to the serious damage that could be done to the applicant's financial business in which confidence is key, and that without anonymity in these proceedings, the applicant is effectively left without a remedy under a statutory regime where the informal freeze can last indefinitely. I am satisfied that we are not concerned here with the avoidance of embarrassment on the part of the applicant, and certainly not with convenience or expedience. In essence, on the facts of this case, I find that the consequences to the applicant are sufficiently severe to justify the displacement of the principle of open justice.

31. Until further order the Judicial Review hearing will therefore be held in private, but the wider public interest will be met by a judgment which addresses and explains the relevant legal issues by reference to the necessary factual background without identifying the applicant by name or by publishing information which would enable the applicant to be identified. I say "until further order" as there will be liberty to apply should the circumstances justifying anonymity change."

50.     It was said that this was one of the rare cases where the principle in favour of open justice should yield, having regard to the circumstances.  It was said that the Plaintiff in this case should have drawn to the attention of the Court the relevant authorities, including Ex Parte Todner, and should have suggested that in the circumstances the Applicant's name should be redacted from any published judgment.  It was accepted that the 2020 proceedings concluded with the Plaintiff's receipt of an affidavit from the Defendants in May 2020.  There is some merit in the suggestion that the Court, on an ex parte application akin to the one that the Plaintiff made in this case, should be reminded of the principles in relation to redaction to protect persons in the position of the Applicant who will have no voice before the Court and may well suffer adverse consequences as a result of being identified in the published judgment.  In this case, the Applicant did not suggest that the judgment should not be published at all as it was accepted that that would be unrealistic, but it was suggested (with the support of counsel for the Defendants), that there should have been redaction / anonymisation / endorsement before publication.

Human Rights

51.     The Applicant's submission that the Plaintiff in this case should have drawn the Court's attention to the rights of privacy of the Applicant under Article 8 of the European Convention on Human Rights (the "Convention") were reinforced by the decision of Nicklin J in Davidoff v Google LLC [2023] EWHC 1958 ("Davidoff") which was drawn to our attention.  At paragraph 45 of Davidoff Nicklin J said, in the context of a Norwich Pharmacal application:

"The fact that the respondent either consents to or does not oppose the grant of relief does not release the applicant or the Court from properly considering the absent target's position. The applicant retains the burden of ensuring that the Court receives full and frank disclosure and Courts dealing with this type of Norwich Pharmacal application must be especially vigilant to ensure that the engaged Convention rights of the absent target are properly identified and considered.

52.     If identification of the absent target is not adequately considered, then there is a danger that their Convention rights will be infringed, albeit inadvertently, by the Court.

53.     Article 8 provides:

"Article 8

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

54.     The European Court of Human Rights ("ECHR") held in SW v UK [2021] 73 EHRR 18, that Article 8 extends to protection of reputation, including in relation to business activities:

"45... a person's right to protection of his or her reputation is encompassed by Article 8 as part of the right to a respect for private life, since a person's reputation is part of his or her personal identity and psychological integrity."

55.     The ECHR went on to say that an attack on an individual reputation which obstructs their ability to pursue a chosen professional activity may have consequential effects on the enjoyment of their right to respect for their "private life" within the meaning of Article 8.

56.     The authorities established that it is necessary for the Court to determine whether or not an applicant's Article 8 rights are engaged and if they are engaged it is necessary to consider the proviso contained in Article 8(2), including the customary law principle of open justice and the Article 10 provisions in relation to freedom of expression, inter alia.

57.     It is not relevant for the purpose of this exercise that the Applicant in this case, resides outside the jurisdiction (see Warby LJ in Millicom v Clifford [2023] ICR 663).

58.     We accept that generally, in future applications of a similar nature it will appropriate for the Court to be reminded at the outset by the plaintiff (and any other party) of the position of third parties whose reputations may be damaged by any judgment.  That did not happen in this case and the Court, it was accepted, can be criticised for issuing the judgment which it did.

59.     Nonetheless we are not satisfied that it was or is necessary for this application to be determined in private.  It is a case of an individual who was the director of a number of high-profile companies, so far as the litigation in this jurisdiction is concerned, and who is the subject of reference in more than one set of Court proceedings, and who is now concerned about the way in which he was described in one particular judgment.  Accepting what he says as accurate, he is entitled to be concerned about those allegations, and we accept that the liquidator's allegations did not constitute or evidence findings against the Applicant in any sense.  We also accept, for the purpose of this application, that the liquidator's allegations have caused him difficulty in the way we have explained above.  However, it is commonplace for the Court to have to recite sensitive and sometimes commercially damaging allegations against individuals in the course of proceedings which are then publicly reported.  Although it is not right to hold that the category of cases which are likely to  be determined in private is closed, they do generally fall within a limited number of exceptions to the general rule - cases involving children, proceedings for ancillary relief in matrimonial cases where the need for privacy in a small jurisdiction is particularly acute, injunctive proceedings to restrain the disposal of assets where publicity would defeat the objective of the proceedings, ex parte Norwich Pharmacal relief itself (as in this case), matters of trust administration and other special cases, such as the jurisdiction to discharge an offender from the notification requirements under the Sex Offenders (Jersey) Law 2010.  In the latter instance the Royal Court has held that the first duty of the Court on such applications is to determine whether or not the applicant has satisfied the Court that it is necessary for the application to be determined in private.  No such considerations apply in this case in our judgment, and accordingly we decline to hold that this application, or the consequential judgment, should be delivered in private or anonymised.

The relief sought

60.     We have set out the relief sought at paragraph 1 of this judgment.

61.     The Applicant's application is perhaps predicated on the footing that he can only succeed in obtaining the relief he seeks if he is joined as a party to these proceedings.  We have declined to make such an order.  Nonetheless, we proceed to deal with the substance of relief sought for two reasons.  Firstly, in case we are wrong in our decision declining to give him leave to join the proceedings which concluded in 2020.  Secondly, in the event that it is possible for him nonetheless to obtain such relief without becoming a party to the proceedings initiated by the liquidators.  For example, although this was not argued at the hearing, it might be argued that a party in the position of the Applicant might be able to issue a free-standing Representation to which the parties to the proceedings in question could be convened for the purpose of inviting the Court to exercise its inherent jurisdiction in order to give him the relief that he seeks by way of a declaration to the effect that the 2020 Judgment should be amended, redacted or endorsed in the way that he seeks. 

62.     The Applicant says that the 2020 Judgment absent of anonymisation or endorsement / disclaimer was unfair at customary law and / or infringed his Article 8 rights, such that the Court should grant the relief that he seeks.

63.     We were referred to cases including Delcampo v Spain [2018] 68 ECHR 27 and certain English authorities which it was argued supported the Applicant's submission that his Article 8 rights were engaged and violated in reciting allegations of money laundering against him in his absence.  The Applicant's affidavit contains evidence in relation to the effect of the allegations against him. 

64.     The Applicant says that the judgment was a disproportionate interference with his substantive rights under Article 8 when balanced against the public interest in open justice and the rights of the Plaintiff.  We were not invited to make findings in this regard, and it would be difficult, if not impossible, to do so in the absence of the Plaintiff.  Nonetheless, it was put to us that the very fact that Article 8 is engaged in this case meant that the 2020 Judgment had to be either anonymised or withheld from publication. 

65.     The relief that is sought now is that the 2020 Judgment should be anonymised, as it ought not to have been published so as to identify the Applicant.  It is accepted that the Applicant has a hurdle to mount in showing that such an order is appropriate in the circumstances where the Applicant was named in the 2020 Judgment published some time ago. 

66.     Our attention was drawn to the decision in TYU v ILA Spa Limited [2022] EAT 287 ("TYU"), a decision of the UK Employment Appeal Tribunal.  The applicant was employed by the respondent company.  Two members of the applicant's family brought proceedings for unfair and wrongful dismissal and the Employment Tribunal referred to the applicant by name, although she was not a party or witness.  The judgment said that the applicant was suspected of dishonesty which her employer had referred to the police.  The applicant applied to the Employment Tribunal (under a specific rule of procedure) asking for her name and role in the company to be redacted or be anonymised from the judgment claiming infringement, inter alia, of her Article 8 rights.  The employment judge refused the application, concluding that the information revealing her identity had been discussed in a public trial, alternatively, even if her Article 8 rights were engaged, they did not outweigh the right to protect Article 6 and Article 10 of the Convention and the common law principle of open justice.  The Deputy High Court judge who sat as the Employment Appeal Tribunal ("EAT") allowed the appeal, holding that where a judgment was published containing adverse imputations about a named third party capable of adversely affecting their enjoyment of their private life, the engagement of Article 8 would depend on the extent to which the judgment was potentially damaging to their reputation; the fact that the information had been referred to in open court or was otherwise already in the public domain was something to take into account, but was not necessarily fatal for the engagement of Article 8 and was not so in the present case.  The judge did not determine the proportionality of either the interference with her Article 8 rights if her application was rejected, or the interference with Article 10 and open justice if the application was granted. Given the absence of this analysis, the balancing exercise was remitted to the Employment Tribunal.  We note that the applicant in that case gave evidence at a hearing in support of her application as to the substantial affect the judgment had upon her.  The EAT noted that a search under her name on Google returned a link to the judgment at the top of the first page of results; she was unable to work; she was cross-examined.  At paragraph 19 of the judgment the EAT noted that naming a person in a judgment may (our emphasis) infringe rights protected by Article 8.  However, at paragraph 20 of the judgment, the EAT noted that the making of an order anonymising a name in proceedings interferes with the right to freedom of expression granted under Article 10.  Article 10 permits interference with the rights under Article 8 only where it was necessary and proportionate.  Further, Article 6 provides that judgment shall be pronounced publicly, although the press and public could be excluded from all or part of the trial in certain circumstances. 

67.     The Court noted that in R v Secretary of State for Justice [2016] 1 WLR 444, Baroness Hale had said:

"The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on . . . The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge."

68.     The Employment Tribunal procedure was regulated by a specific rule, Rule 50, dealing with matters such as anonymisation. As to the conflict between Articles 8 and 10, Lord Steyn in Re S (A Child)[2005] 1 AC 593 said at paragraph 17:

"What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, when the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test."

69.     In Fallows v News Group Newspapers Ltd [2016] ICR 801 ("Fallows"), para 48, Simler J (President) drew the following points from the leading appellate decisions on the open justice principle, as relevant to the appeal before her:

"(i) The burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice.

(ii) Where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, courts and tribunals should credit the public with the ability to understand that unproven allegations are no more than that. Where such a case proceeds to judgment, courts and tribunals can mitigate the risk of misunderstanding by making clear that they have not adjudicated on the truth or otherwise of the damaging allegation.

(iii) The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the employment tribunal proceedings are essentially private and of no public interest accordingly.

(iv) It is an aspect of open justice and freedom of expression more generally that courts respect not only the substance of ideas and information but also the form in which they are conveyed . . . "

70.     The judge held that the ground of appeal in respect of the engagement of Article 8 had been established, at paragraph 57:

"57 As I have identified at paras 41-43 above, the fact that the information in question has already been mentioned at a public hearing and/or in the published judgment does not necessarily preclude the engagement of article 8. Indeed, Ms Burton accepted that this is the position. The existence of prior publicity is likely to be highly significant where article 8 is asserted to protect what is said to be private information, but less so where the aspect of a right to a private life relied upon is ongoing or future reputational damage and/or the impact on the applicant or family members of repetition of the material in question....

58 Accordingly, the fact that the information has been referred to in open court or is otherwise already in the public domain will be something to take into account when assessing the engagement of article 8, but it is not necessarily fatal to that proposition and was not so in the circumstances of this case, given that, at least in substantial part, the appellant relied upon future reputational damage, in particular from potential employers/business partners checking her via a search engine and on the consequential anxiety and distress that this prospect was causing her and on the chilling impact on her employment/business activities."

71.     Accordingly, the judge had erred in law in concluding that Article 8 was not engaged.  The EAT then went on to analyse the Article 8 rights that the claimant said were infringed and determined, inter alia, that the prospect of damage to her reputation was sufficient for the purpose of Article 8 engagement, in particular given that the link to the dismissal judgment featured prominently in search engine results in her name, and given that the contents related to suspected dishonesty and intimidatory behaviour in the workplace. 

72.     The EAT observed at paragraph 71 that a neat distinction between proven and suspected wrongdoing was not always apposite, particularly when considering if Article 8 was engaged as opposed to violated.  The EAT noted that a specific disclaimer of the kind referred to in Fallows was not used in the case. 

73.     However, the EAT was not able to carry out the determination as to whether or not the appellant's Article 8 rights were outweighed by the balancing exercise which the judge had failed to properly carry out, leaving her ultimately to remit the case to the Employment Tribunal for determination.  Nonetheless, the EAT went on to "recap matters that are likely to require consideration" as follows:

"81.  In terms of the interference with Article 10 freedom of expression rights and the open justice principle that would follow from granting the rule 50 application, an assessment of the proportionality of the same will include the following considerations.

(i) The fundamental importance attached to open justice, which encompasses employment law disputes between private parties (paras 30-31 above).

(ii) The nature and extent of the restriction sought. It is unlimited in time, but, on the other hand, does not seek to curtail a public hearing or to restrict the ability of third parties to report matters from that hearing or contained in the current form of the dismissal judgment, where they are aware of the same. As clarified, the appellant seeks anonymisation of her name by use of a cipher and redaction of her position within the respondent, but does not seek any further redactions to the text of the judgment.

(iii) The extent to which naming the appellant is in the public interest and relevant to the contents of the dismissal judgment, including whether the intelligibility of the judgment would be impacted upon by taking the steps she seeks.

(iv) The reason for the proposed interference, that is to say the nature and strength of the article 8 rights in play (as addressed in the next paragraph).

82 In terms of the interference with the appellant's article 8 rights that would follow from refusing the rule 50 application, an assessment of the proportionality of the same will include the following considerations.

(i) The nature and strength of her article 8 rights and the degree of interference with them. I have already described in detail the article 8 rights that I conclude are engaged in terms of the protection of her reputation and the privacy of the police's involvement and do not repeat that analysis. I have also identified that the extent of and the strength of her article 8 rights in play may well depend upon factual findings that have not yet been made in terms of the impact on the appellant's health, the extent to which her search for employment/business opportunities has been or will be affected and/or the impact on the family's finances, in so far as she continues to rely on the same. Her witness statement is relatively brief on these matters and the absence of supporting evidence beyond that is highlighted by the respondent, who does not accept the extent of the impact she describes. It will be recalled that the onus lies on the appellant to provide clear and cogent evidence, save where matters are agreed or can safely be inferred.

(ii) The extent to which the order sought would mitigate this impact, bearing in mind both the particular concerns that are raised by the appellant and the extent to which the order sought would meet them. The respondent, noting that a restricted reporting order is not sought, says some public identification of the appellant may still take place, including, potentially, by jigsaw identification via the stated family connections. On the other hand, the appellant relies on the continued inclusion of her name leading to the search engine results I have referred to.

(iii) That the appellant was not a party or a witness to the dismissal claims (although she had some knowledge of the proceedings).

(iv) Whether less intrusive measures in relation to the dismissal judgment are possible, as I have already discussed.

(v) The reason for the interference, namely the rationale for and strength of the article 10 right in play in these circumstances (as discussed above).

83 It will then be necessary for the tribunal to weigh the relative importance of the rights in play and weigh the scale of the potential interferences with these countervailing rights if the application were to be granted or refused."

74.     It can be seen from above that if the relevant tribunal has all the facts in front of it, then determining whether an applicant's Article 8 rights are outweighed by other factors will be a sensitive task, and not without its complexities.  We are not suggesting that this approach, suggested by a judge of the EAT, is necessarily appropriate in all cases where such rights are asserted in this jurisdiction.  There would need to be a further decision of the Court after argument on the issue.

75.     Our attention was also drawn to the decision of the English High Court (King's Bench Division) in The King v Westminster Magistrate's Court and Others [2023] EWHC 587, where Warby LJ gave the judgment of the Court.  The case involved a claim for judicial review of a decision of Westminster Magistrate's Court to lift an order anonymising the name of a claimant in connection with a claim for forfeiture of assets brought by the National Crime Agency against three hundred individuals under the Proceeds of Crime Act 2002, the main issue being whether the judge erred in resolving a conflict between the imperatives of open justice and the rights of a non-party to respect for his private life.  The approach of the King's Bench Division is instructive and is set out in the judgment at paragraph 43:

"43. I reject the claimant's criticism of the judge's approach to the law for these reasons:-

(1) The starting point is the common law principle of open justice, authoritatively expounded in Scott v Scott and subsequent authorities at the highest level. The judge was right to begin here. The summary of the common law principles which he adopted from the argument of Mr Bentham is not materially different from the summary in the Judicial College Guide, approved in Rai (CA).

(2) The general principles that (a) justice is administered in public and (b) everything said in court is reportable both encompass the mention of names. As a rule, "[t]he public has a right to know, not only what is going on in our courts, but also who the principal actors are": R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444 (Baroness Hale). In this case, it is clear that but for the claimant's late request for a derogation from these principles the NCA would have named him in open court. Its decision to do otherwise was a purely executive act which has no bearing on the propriety of the judge's decisions to grant and then lift anonymity. Those were decisions about what the law required. It would have been irrelevant if the NCA had consented to an anonymity order, as parties cannot waive or give up the rights of the public: see the Practice Guidance at paragraph 16.

(3) When considering the application for derogation in this case the judge was right to identify and apply a test of necessity. Under the common law as it existed prior to the entry into force of the Human Rights Act 1998, anonymity could only be justified where this was strictly necessary "in the interests of justice": sce Khuja. This was and remains an exception of narrow scope: see the tests cited in Clifford v Millicom at [31]-[32]. It has never been suggested that this case meets that standard. The claimant's case rests on the common law privacy right derived from Article 8, to which the Supreme Court referred in Khuja. But in that context too the applicant for anonymity has to show that this is necessary in pursuit of the legitimate aim on which he relies.

(4) The threshold question is whether the measure in question - here, allowing the disclosure of the claimant's name and consequent publicity - would amount to an interference with the claimant's right to respect for his private and family life. This requires proof that the effects would attain a "certain level of seriousness": ZXC (SC), Javadov. It was the very essence of the claimant's case - as to which the judge was in no doubt - that the reputational impact of disclosure would amount to a very serious interference with his Convention rights. In my view it is clear that the judge accepted throughout that the threshold test was satisfied. His reasoning cannot be understood in any other way.

(5) The next stage is the balancing exercise. Both the judge's decisions expressly turned on whether it was "necessary and proportionate" to grant anonymity. That language clearly reflects a Convention analysis and the balancing process which the judge was required to undertake. The question implicit in the judge's reasoning process is whether the consequences of disclosure would be so serious an interference with the claimant's rights that it was necessary and proportionate to interfere with the ordinary rule of open justice. It is clear enough, in my view, that he was engaging in a process of evaluating the claimant's case against the weighty imperatives of open justice.

(6) It is in that context that the judge rightly addressed the question of whether the claimant had adduced "clear and cogent evidence". He was considering whether it had been shown that the balance fell in favour of anonymity. The cases all show that this question is not to be answered on the basis of "rival generalities" but instead by a close examination of the weight to be given to the specific rights that are at stake on the facts of the case. That is why "clear and cogent evidence" is needed. This requirement reflects both the older common law authorities and the more modern cases. In Scott v Scott at p438 Viscount Haldane held that the court had no power to depart from open justice "unless it be strictly necessary"; the applicant "must make out his case strictly, and bring it up to the standard which the underlying principle requires". Rai (CA) is authority that the same is true of a case that relies on Article 8. The Practice Guidance is to the same effect and cites many modern authorities in support of that proposition. These include JIH v News Group Newspapers Ltd [2011] 1 WLR 1645 where, in an often-cited passage, Lord Neuberger of Abbotsbury said at [22]:

           "Where, as here, the basis for any claimed restriction ultimately rests on a judicial assessment, it is therefore essential that (a) the judge is first satisfied that the facts and circumstances of the case are sufficiently strong to justify encroaching on the open justice rule ... "

(7) In my opinion, the closing passage of the judgment under review reflects the conclusion arrived at by the judge after conducting the necessary balancing process. This was that, in the light of all the facts and circumstances that were apparent to him at that time, the derogation from open justice that anonymity would represent was no longer shown to be justified as both necessary for the protection of the claimant's Article 8 rights and proportionate to that aim."

76.     The claim for judicial review was dismissed and the interim anonymity order, granted pending appeal, lifted.

77.     Our attention was also drawn to the decision of the European Court of Human Rights in SW v United Kingdom [2021] 73 EHRR 18, where the applicant, a social worker, was called as a professional witness before a Family Court in proceedings concerning the alleged sexual abuse of several children.  The Court found that the applicant was the principal instigator in a joint enterprise to obtain evidence to prove sexual abuse allegations, irrespective of the underlying truth and relevant professional guidelines; that she had lied to the Court and subjected a child to a high level of emotional abuse.  The trial judge rejected an application to grant the social worker anonymity.  Two years later, the Court of Appeal found that the criticism of the applicant in the judgment breached her rights under Article 8 and the process by which the judge had reached his criticisms was manifestly unfair and in breach of Article 8 because the applicant had not been given an opportunity to know or meet the allegations during the trial.  The findings were set aside and redacted from the judgment so that they could have no validity for any purpose. 

78.     The ECHR held that there had been a violation of Article 8 and held that the Family Court judge's decision to criticise the applicant in severe terms without giving her an adequate opportunity to respond and then to direct that those criticisms be shared with local authorities where she worked and with relevant professional bodies, significantly affected her ability to pursue her chosen career.  The allegations the judge found proved against the applicant fell entirely outside the issues that were put before the Court and had not been put to her, or even mentioned, during the hearing.  The Court of Appeal's setting aside of the findings of the Family Court judge did not alter the fact that those findings  had already been widely disseminated to local authorities where the applicant worked and various professional bodies, without the applicant having the chance to meet them.  Accordingly, she did not have the redress to which she was entitled.

79.     In the absence of anonymisation by redaction of the Applicant's name in the present case, it is said that in the alternative the Court should include a "disclaimer" in the 2020 Judgment.  Our attention was drawn to three authorities - JD Wetherspoons Plc v Vandenberg [2009] EWHC 639 (Ch) ("Weatherspoons"), Rothschild v Associated Newspapers [2012] EWHC 177 (QB) ("Rothschild") and R (Lewin) v Financial Reporting Council [2018] 1 WLR 2867 ("Financial Reporting Council") where the Court made it clear that non-parties were not the subject of binding findings.

80.     For example, in the Wetherspoons case, the judge said that he had not heard evidence from the third party in question and that none of the findings made against the defendants had any binding effect on him, concluding "It will be quite wrong in my view to express any view about [the third party] and their company's conduct without having heard [from him]".

81.     In Rothschild, the judge said "Nothing in this judgment should be taken as a criticism by me of anyone who is not a party to the action".

82.     In Financial Reporting Council, the judge held that the tribunal decision, the subject of the appeal, should have been the subject of a "disclaimer" to the effect that the claimant was not a party to the proceedings and was not invited to provide evidence, and that it would not be fair to treat any part of the tribunal's findings as findings made against them.

83.     Whether it is appropriate for any such "disclaimer" to be applied to the 2020 Judgment retrospectively or at all (in this case, it was said that the JLIB version of the 2020 Judgment would need to be amended) will depend upon the context.  Unlike the three cases referred to in submission by the Applicant, it was inevitable bearing in mind that this was a Norwich Pharmacal application where the conduct under the microscope was the Applicant's, that the terms of any disclaimer / endorsement would need to be carefully considered.

Decision

84.     It is not possible at this distance in time and in the absence of the Plaintiff to determine what the Court's decision would have been had it been notified of the need to consider with care, at or before the time the 2020 Judgment was issued, whether the Applicant's name should be redacted from the 2020 Judgment or, in the alternative, the 2020 Judgment ought to have recorded that, notwithstanding the allegations made against the Applicant set out at paragraphs 9, 10 and 11 of the 2020 Judgment (although only the allegations at 9 and 10 are challenged), it should be recalled that the Applicant was not a party to the application, had no notice of the application and that the Court made no findings against him, notwithstanding the decision that it reached.

85.     The Court certainly did not on the previous occasion have before it the evidence advanced by the Applicant today to the effect that his Article 8 rights had been infringed. 

86.     Nonetheless, that evidence (at least to some extent), is before the Court in the present application.

87.     Our conclusions are as follows:

(i)        The starting point is the customary law principle of open justice, authoritatively set out in the JEP v Al Thani and followed in subsequent Jersey authorities.

(ii)       The general principle is that justice is administered in public, and the public has a right to know who the principal actors in a case are.  In contrast to some of the employment cases that have been referred to before us, the Applicant was on any showing a man who had connections with the Maluf family going back decades (paragraph 10 of the 2020 Judgment).  He had given them advice in relation to structuring offshore funds at the heart of the transactions that were subsequently complained of and was director of the three key Maluf Companies at the material time.  He was party to the proceedings in 2007, obtaining the judgments in default and had previously been referred to (albeit without any adverse findings) in a Royal Court judgment in 2012.  He was not a "bit part" player in this case and, prima facie, notwithstanding that he was not a party to the 2020 proceedings, one would have expected him to have been identified by name in any judgment. 

(iii)      At customary law, it is only possible to warrant anonymising the name of a person in the Applicant's position where it is strictly necessary in the interests of justice.  The Applicant relies on his Article 8 rights to privacy.  But in that context, the Applicant must show that his request for anonymity at this stage is necessary in pursuit of a legitimate aim on which he relies.

(iv)     The threshold is whether the measure in question, failing to redact his name from the current published 2020 Judgment, would amount to an interference with his right to and respect for his private and family life.  This requires proof that the effects of not redacting his name would attain a "certain level of seriousness".  He says the reputational impact of not redacting his name at this stage would amount to a serious interference with his Convention rights.  The Court can do nothing in relation to events that have occurred between 2020 and now as they are in the past and the Court did not have the material before it in 2020 that it has now, four years later.  The Applicant has not given evidence, nor has he been cross-examined on his affidavit. 

(v)      The effect on him of these proceedings has been set out at paragraph 10, 11 and 14 above.  The impact prior to today has been personal, reputational and financial, although the financial effect has not been quantified.  He says at paragraph 36 of his affidavit that the allegations in the 2020 Judgment will continue to be harmful to him and his company and will affect any further attempts he makes to sell his business and may affect the asset management career of his son.  The prospect of further damage to the Applicant's reputation is sufficiently evident in the circumstances of this case to engage Article 8 even though, as is clear from the 2020 Judgment, this is a case of the Court recording allegations and not findings against the Applicant.  Allegations are quite different from findings.  Nonetheless, as in the case of TYU (paragraph 71 ), these constituted a recitation of potential criminal acts of dishonesty even though there was no suggestion that they had been proved.  We have identified that the Applicant's Article 8 rights are in play in this case.  We accept further that the actual and potential effects identified by the Applicant would attain a "certain level of seriousness".

(vi)     Accordingly, we need to carry out the appropriate balancing exercise in order to determine whether or not it is necessary and proportionate to grant the application made to anonymise the 2020 Judgment.  Open justice is of fundamental importance.  The nature and extent of the restrictions sought is unlimited in time but does not prejudice any third parties as the proceedings in question have come to an end.  The Applicant seeks anonymisation of his name.  His proposed redactions that remove the allegations and conceal his identity are extensive and, for example only, include reference to the Maluf family, names of all relevant companies and the citation of various judgments.  Having said that, even as redacted, open source material will make it reasonably easy to identify the Applicant in our judgment, as they still refer to him as a "banker" to an unnamed family going back to the 1980s, as the designer of an offshore structure, his status as a director to the three family owned Companies, and the various financial demands and recoveries including the claim for $166 million.  We do not expect it would take very long for a journalist or anyone with any knowledge of what is quite a well known case, certainly so far as the Jersey Courts are concerned, to put the pieces of the jigsaw together.  In any event, that is what the Applicant has sought and search engines would no longer identify him as connected to the 2020 proceedings.

(vii)     The difficulty with redaction in this case is perhaps itself emblematic of the public interest in this case and the connected (in the general sense) fraud carried out by the Maluf family which has been the subject of extensive litigation in the Jersey Courts.  The Court has difficulty in identifying all arguments likely to be relevant to this issue in the absence of the Plaintiff or, perhaps, the Attorney General acting as partie publique.

(viii)    It is also important to separately consider whether or not to decline to make the order sought is proportionate in the context of the ordinary rule of open justice, having regard to the Article 8 rights of the Applicant to which we have referred.  It is quite difficult to make precise findings as to the nature and strength of the Article 8 rights (beyond the matters we have identified), and the degree of interference with them.  The Applicant's evidence in this regard has not been tested and in large measure is not supported by detailed documentary evidence, although we have no reason to reject what he says.  The Applicant does not give any detail as to his means or the precise financial effects on him, (even in confidence), of the failure to sell his business.  He does say that he has expended "considerable sums" in trying to complete the sale.  In 2016, criminal charges were brought against him in Brazil in relation to alleged money laundering and conspiracy, and a federal judge acquitted him for lack of just cause in August 2018 and October 2019.  It is not suggested that these actual criminal proceedings initiated against him led to an effect on his business and standing - which is perhaps surprising.  As to the 2020 Judgment which he, as is recorded, found embarrassing and his need to have "very difficult conversations" with clients and employees of his business, he does not suggest that this caused him loss of business save for (which is significant) the ability to sell his business for "tens of millions".  He said it is "difficult" for him to say "exactly what other harm" the 2020 Judgment has caused.  He has received from the Defendants in this case a letter to the effect that no findings were made against him in the 2020 Judgment, which plainly he is able to disclose to any third parties.  It is this reassurance he had from the Defendants' advocate which is referred to at paragraph 32 of his affidavit, as confirmation that "the Court was not in a position to make any findings of fact... and the 2020 Judgment did not make any adverse findings against [the Applicant] or any members [his] family".  The Applicant's assertion at paragraph 36 of the affidavit that he believed that the 2020 Judgment and the "various serious allegations made in it" will "continue to be personally harmful to me (and his business)" and will continue to cause financial loss to both is unparticularised.  The Applicant goes on to say that it is difficult in his business to point to evidence of people, for example, avoiding dealing with him as they are unlikely to tell the Applicant to his face why they have made this decision.  However, the Applicant could have produced evidence in relation to the turnover of his business or evidence in relation to staff leaving the business which would have supported what is said.

(ix)      The authorities indicate (see for example TYU at paragraph 82(i)) that it is for the applicant to provide "clear and cogent evidence" in relation to the impact of the claimed breach of Article 8 rights.

(x)      We are satisfied that the Court has the jurisdiction to anonymise/redact a judgment which has already been published.  This is different from amending a judgment after the order has been finalised.  A distinction needs to be drawn between the finalised judgment that has been issued to the parties and the published judgment.  The Court has a jurisdiction to anonymise/redact a published judgment on the grounds that there has been an infringement of Article 8.  That would not, of course, affect the judgment of the Court which has been issued to the parties, but the one released publicly which is searchable.

(xi)      We have considered this application closely and carefully and are not satisfied that the facts and circumstances of this case are sufficiently strong to justify derogating from the principle of open justice to the extent that we should, at this stage, redact or edit a judgment published four years ago.  We have concluded that it is not necessary and proportionate to make the orders sought by the Applicant having scrutinised with care what the Applicant says and having reflected on the principle of open justice and indeed the practicality and utility of the redactions that are proposed in this case. 

(xii)     Further, we do not think it appropriate at this stage to endorse retrospectively a judgment published in 2020 as that would be unnecessary and unhelpful in the context of this case.  We are certainly prepared, if the Applicant wishes this to be the case, to add to the published 2020 Judgment a link to this judgment, with a specific reference to this paragraph in which we state that none of the allegations made by the liquidators for the purpose of the application made to the Royal Court on 20 May 2020 (as recorded in the 2020 Judgment dated 15 June 2020) were the subject of findings made in that judgment, or in any case that has come before the Royal Court subsequently.  Further, they were allegations made in proceedings to which the Applicant was not a party, was unrepresented and had no opportunity to consider or rebut before they were published.  None of the findings made in the 2020 Judgment of the Royal Court of 15 June 2020 are binding on the Applicant.

Authorities

Hellard and Richardson v Young and Young [2020] JRC 113A. 

IBL Limited v Planet Financial and Legal Services Limited (Royal Court 21 June 1990). 

MRH Solicitors Limited v The County Court Sitting at Manchester and Others [2015] EWHC 1795. 

RBC Trustees (CI) Limited & Others v John Bisson & Others [2007] JRC 211. 

Jersey Evening Post v Al Thani and Others [2002] JLR 542. 

Trusts (Jersey) Law 1984. 

HSBC Trustee (CI) Limited v Kwong [2018] JRC 051A. 

AG v Williams [2023] (2) JLR 119. 

Scott v Scott [1913] AC 417. 

Regina v Legal Aid Board Ex Parte Todner, (a firm) [1999] QB 966 ("Ex Parte Todner"). 

Prospective Applicant v Chief Officer of the States of Jersey Police [2019] JRC 032. 

Davidoff v Google LLC [2023] EWHC 1958. 

SW v UK [2021] 73 EHRR 18. 

Millicom v Clifford [2023] ICR 663. 

Sex Offenders (Jersey) Law 2010. 

Delcampo v Spain [2018] 68 ECHR 27. 

TYU v ILA Spa Limited [2022] EAT 287. 

R v Secretary of State for Justice [2016] 1 WLR 444. 

Re S (A Child) [2005] 1 AC 593. 

Fallows v News Group Newspapers Ltd [2016] ICR 801. 

The King v Westminster Magistrate's Court and Others [2023] EWHC 587. 

JD Wetherspoons Plc v Vandenberg [2009] EWHC 639 (Ch)

Rothschild v Associated Newspapers [2012] EWHC 177 (QB). 

R (Lewin) v Financial Reporting Council [2018] 1 WLR 2867.