Case reports and development of common law

Every now and again a case report comes out which reminds us that much of English and Welsh law is based on the common law; and that that law is defined by what the judges at High Court (and higher) levels say. And, it may be recalled, the common law defined by case law in the Supreme Court and senior courts (High Court and Court of Appeal) can only be changed by statute in Parliament or by later decision of the Supreme Court (as explained by Lord Scarman in Davis v Johnson [1978] UKHL 1, [1979] AC 264) or of a higher senior court (as happened in Addlesee (below) at [90]).

The few days either side of the end of September 2019 saw two judgments which define and explain the law in their respective areas. First was AAA v Rakoff [2019] EWHC 2525 (QB) (30 September 2019), in which Nicklin J told us the common law on whether or not a party’s name can be anonymous in court proceedings. Secondly, in Addlesee v Dentons Europe LLP [2019] EWCA Civ 1600; [2019] WLR(D) 538 (2 October 2019) Lewison LJ tells any interested reader most of what he or she needs to know about the case law behind the common law doctrine on legal advice privilege, when it applies and when – if ever – it ceases.

What makes cases such as this so important is that it is impossible to understand either subject on which they are based unless you read law reports. For example, to take two disparate subjects – child law and the Children Act 1989 and tax law (about which, respectively, I know a bit and almost nothing): both of these are covered by a wealth of statute law to which a concerned individual can go directly. If you want to find out if your case will be anonymised in court or whether what you have said to your lawyer (legal advice privilege) will remain confidential, you will have to look at the case reports.

Common law and legal advice privilege

In Adlesee “the question” was as Lewison LJ put it:

“[1] … Easy to pose, but not so easy to answer. It is: what happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved; and the Crown has disclaimed all interest in its former property?’

He then developed a picture of clear principle on legal advice privilege and whether it can survive the dissolution of a company entitled to it; though, as he shows, the same would apply to a client who has died. He starts from the inevitable Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610 and R v Derby Magistrates’ Court, ex p B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513 each of which are the starting points for any discussion of the subject; and Lewison LJ takes these cases chronologically – at House of Lords and Supreme Court level – to R (Prudential plc) v Special Commissioner of Income Tax [2013] UKSC 1, [2013] 2 AC 185. Privilege remains absolute unless waived by the client; statute says something else (and expressly so: R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2002] UKHL 21, [2003] 1 AC 563); or the “iniquity exception” applies (R v Cox and Railton (1884) 14 QBD 153).

Privilege is a right (ie not a privilege: see Lord Nicholls in the Derby Magistrates’ Court case (above) [1996] 1 AC 487 at 510). Like all rights, it must belong to someone. Death does not destroy privilege (Bullivant v Attorney-General for Victoria [1901] AC 196); and so it is with dissolution of a company. Privilege in the documents concerned survived even though the company was no more. The case reminds the legal adviser that because a client dies, the lawyer’s silence runs on…

Anonymity and the pole-dancers

The question is: on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA v Rakoff (above). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues. This article looks at the question of anonymity which was the first – and main – issue in the case dealt with by Nicklin J.

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under Civil Procedure Rules 1998, r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1 WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

Nicklin J draws on the INDO guidance, especially paras 9 to 14; and then sets out a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

“[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.”

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (two more cases which are classics in the same mould as the cases here; and for their summaries of common law principles in issue).

Open justice principle and anonymity

From these two cases Nicklin J concluded:

“[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney General v Leveller Magazine Ltd [1979] AC 440, 457E …[and see Scott v Scott [1913] AC 417 per Viscount Haldane LC at 437-439].”

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

“[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….”

Common law and rights

Another way to see these two strands in the common law are to show what a firm hold principles such as these have on the European Convention 1950, in whose drafting common lawyers played such a major role. Open justice principles – on which the anonymisation principles rest – long predate 1950, and probably go back to the 17th century in English law; and legal advice privilege, which is derived from principles of confidentiality, goes back at least to the 18th century as Lord Taylor of Gosforth CJ explained in R v Derby Magistrates’ Court, ex p B (above) at [1996] 1 AC 487, 504:

“By the end of the 18th century [legal advice privilege] was already well on the way to being established on its present basis. In Wilson v Rastall (1792) 4 Durn & E. 753, it was decided that the privilege was confined to the three cases of counsel, solicitor and attorney.”

This is not to be jingoistic as to the roots of English law; but merely to recall that, important as the European Convention 1950 is, many of its principles can – and must – be explained from a period of development of law long prior to 1950; and likewise that – as Toulson LJ firmly points out in the Guardian News and Media case (above) – many English cases can correctly be decided by reference only to the common law and without reference to European Convention 1950 or its jurisprudence.

Featured image by Christina Morillo via Pexels.