Open (in)justice: privacy, open justice and human rights

Abstract

Abstract The principle that court hearings must be open to the public is regarded as sacrosanct. It has recently been invoked by the Court of Appeal in MN v OP as the reason for refusing an application to anonymise the approval of an arrangement under the Variation of Trusts Act 1958 Act. Yet the reasons generally given for insisting on open justice as a matter of principle are unconvincing when applied to civil cases as opposed to criminal cases or those, such as judicial review, in which the power of the state is pitted against the individual citizen. If private citizens are free to resolve their disputes privately through arbitration or mediation, why should they not be allowed to have their cases heard by the court in chambers unless there is some special feature of the case requiring publicity? Why are anonymised judgments not sufficient to ensure that justice is administered fairly and in accordance with the law? Could not more use be made of reporting restrictions? In this article, it is argued that the courts should do more to protect the privacy of litigants, and should not bow to populist demands to pry into the affairs of others (particularly the very wealthy). If they do not, those who can afford to do so will choose arbitration, or litigate in off-shore jurisdictions that are more sympathetic to their reasonable desire for privacy.