1/ Frewer v Google: An incredibly useful judgment on the principles applicable to applications to redact information disclosed in ET proceedings. One for the useful authorities folder for sure. And a case ending with a hopeful plea for restraint!
bailii.org/uk/cases/UKEAT…
#ukemplaw
2/ A commercial director of Google was dismissed for alleged sexual comments & suggestions to 2 female colleagues at a dinner. He brought a wide ranging claim including a wide-ranging s.47B detriment & s.103A dismissal claim. This claim was brought against Google & 3 individuals.
3/ The essence of F's disclosures concerned alleged anti-competitive behaviour by Google in favouring 2 major travel industry clients.
Google applied to anonymise all clients in the bundle & to redact commercially sensitive info not relevant to determining the claim.
4/ The ET acceded to the request, making the below order. The ET noted the clients played no part in the proceedings & found the request within the powers under ET rules 29 & 50, applying a test as to what the interests of justice required.
5/ The ET considered F's claim wouldn't be prejudiced by making the orders, noting the client identities & commercially sensitive info was irrelevant to the issues to be determined, & finding the interference with the principle of open justice a minimal one.
6/ F appealed the decision on the basis there was no power to make the order, the ET was wrong to find F wouldn't be prejudiced by it & that the ET had reversed the justification for burden of redaction (which lies on the party proposing redaction).
7/ The EAT agreed with F that errors had been made in the application of the tests & that the matter should be remitted. The judgment is a very useful trawl through relevant case law. Another HHJ Tayler judgment for the useful judgments file.
8/ HHJ Tayler started by clarifying the need to distinguish a number of different principles: the disclosure obligation - only if relevant & necessary for fair determination of the issues, possible redaction of irrelevant sections, r.50 orders.
9/ The EAT moved on to the case law on the disclosure obligation, quoting heavily from Tesco v Element on the dual requirements of relevance and necessity for the fair disposal of the proceedings:
10/ Next was redaction, noting where a part of a document falls outside the disclosure obligation it needn't be disclosed & hence can be redacted. However, that where material falls within the obligation but is confidential an order would need to be sought, usually under r.50.
11/ The EAT then noted the importance of the open justice principle (see Dring) before considering case law on the naming of names, which emphasises the public interest in having names attributed to parties involved in reported stories.
12/ It may be that to the lawyers the names aren't of such interest as they may not prove essential to determination of the issues. But that would be the wrong focus. The public interest won't be satisfied by anonymity, & the right to report cases is central to Art 10/Art 6.
13/ As to r.50, the EAT was clear that it allowed for protection of commercially confidential info. That was clear from its cross-reference to s.10A of the ETA, which expressly includes such info within its protection. However the test applicable is the open justice principle.
14/ The burden of establishing that there should be a derogation from the open justice principle is on the party seeking the derogation, required to establish with clear evidence the harm to the privacy rights of the person seeking to restrict publication.
15/ The relevant principles weren't referred to by the parties at the ET & hence not properly applied by the EJ. Hence the appeal was allowed & the question remitted. 1 particular problem was that the ET application relied on r.29 & r.50 but ignored r.31, the disclosure rule.
16/ Although r.31 doesn't deal specifically with redaction (& hence the case management powers under r.29 were applicable), the EAT considered that the decision on redaction had to be informed by the principles applicable to disclosure under r.31.
17/ Absent attention being drawn to the right principles, the EJ hadn't considered A10 or the case law on the importance of naming the names of those involved in legal proceedings. Here there was a strong argument the public would wish to identify the 2 preferential clients.
17/ Likewise the order to allow redaction of commercially sensitive & irrelevant info hadn't undergone the appropriate structural analysis. EJ Tayler suggested the following 4-step approach:
18/ In obiter, HHJ Tayler was somewhat vexed to learn that 100 disclosures were relied upon, questioning whether that sort of approach furthered the overriding objective.
19/ Relying on his own observations in Vaughan v Modality, Tayler urged focus on disclosures likely to have given rise to detriments, rather than thinking that the more protected disclosures pleaded, the greater the prospects of success. He urged quality over quantity.
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