1/ Guardian v Rozanov & EFG Private Bank: EAT holds ET should've acceded to post-trial request from Guardian to be provided with various trial docs in line with open justice principles. Important case on the ET & appellate tests to be applied.
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2/ By this appeal, the Guardian News appealed against an ET's refusal to order EFG to provide it with copies of the ET1, ET3, skeletons, witness statements & bundle documents after the final hearing of the claim.
3/ The underlying case was a whistleblowing detriment & dismissal claim brought by Mr Rozanov, a private banker. Although the ET accepted protected disclosures were made, the detriment & dismissal claims failed.
4/ At trial, EFG client names were redacted & a r.50 order was made re 3 individuals who'd paid in money to a redacted client & in re a former whistleblower.
5/ 7 weeks after judgment, a Guardian reporter sought the documents set out above, explaining it was in the public interest due to evidence the bank, among other things, breached anti-money laundering regs and tried to facilitate a $100m transaction to a Chechen warlord.
5B/ The Guardian also relied on a need to understand matters referred to in the judgment, accuracy of reporting, to inform debate & to obtain further info about the matter to assist further enquiries. Subsequently they also relied on FCA compliance & handling of the dismissal.
6/ EFG objected to the application. They submitted the ET was now functus officio & had no power to make the order, but if there was discretion it shouldn't be exercised. They said the scheme re access to documents only applies to the course of the hearing, not afterwards.
7/ The Guardian subsequently noted a new Sup Ct decision in Dring v Cape, where the Sup Ct set out wide powers re disclosure of court records to non-parties, focused on the principles of open justice. This led EFG to accept the ET had the power, but it urged against its use.
8/ The ET ordered copies of the ET1 & ET3 held by the ET would be provided, but refused to lift the r.50 order or to order EFG to provide the additional documents requested. The Guardian appealed the decision re documents though not re r.50 or access to the trial bundle itself.
9/ The ET hadn't considered the open justice principle particularly applied, finding the Guardian request not focused on C's treatment nor on whistleblowing, nor on understanding the ET system, but on extraneous issues re the transactions. It doubted the FCA & dismissal reasons.
10/ Moroever, outside of the ET1 & ET3, as retained by the ET, the ET was concerned about the practicalities & costs of ordering EFG to supply lots of documents to the newspaper. It noted they could've had access during the hearing & considered it disproportionate to order now.
11/ The Guardian's appeal focused on the principles of open justice, asserting the ET failed to properly define it, reached a perverse decision & applied the balancing factors wrongly.
12/ Starting with Dring, the EAT looked at the purposes of open justice. In Dring there were 2 categories (scrutiny of judges, understanding the system's operation) & left open the possibility of other categories.
13/ The EAT considered the exposure of matters of public interest could be relevant (see Harman) & that under the ECHR the proportionality of a derogation from open justice should be subject to intense focus. The importance of the press to legal reporting is also relevant.
14/ HHJ Taylor asked whether the fact that documents can be inspected during the hearing means a limit on inspection afterwards. His answer was an emphatic 'no', relying on Dring & its approval of the CA's liberal construction of open justice in R (Guardian) v Westminster Mags
15/ HHJ Tayler noted that appellate decisions on applications derogating from the open justice principle are considered exercises of discretion (or analogous) & thus require deference to be given to the EJ's decision rather than carrying out the a proportionality test anew.
16/ The proper approach for the EAT to take to appeals considering ECHR proportionality assessments was that set out in R(R) v Greater Manchester Police as endorsed and clarified more recently in Ziegler.
17/ Thus primary & secondary factual findings are subject to a perversity test, the proportionality assessment relies on those facts, but the proportionality decision can be overturned if wrong due to, eg, flaws in reasoning, gap in logic, ignoring a material factor.
18/ Applying the principles, HHJ Tayler considered the ET erred in finding the open justice principle not strongly engaged. The ET had downplayed the journalistic reasons for wishing to have the documents & ignored FCA & dismissal handling reasons relevant to open justice.
19/ In line with R(R), the EAT considered the ET adopted too narrow an approach to open justice, & ignored that acceding to the appn might result in material being released which was of wider public interest (as per Harman). There were proper journalistic reasons for release.
20/ The ET had placed too great an emphasis on practical problems when there was no suggestion of practical difficulties providing much of the requested documentation. That balance showed the determination to be wrong.
21/ The Guardian hadn'tsought to appeal against the ET's refusal to undo the r.50 order or to unredact documents. That also meant the Art 8 issues had been dealt with & the right decision all the clearer. The EAT held the only possible answer was to make the order sought.
22/ Yet another very helpful judgment from HHJ Tayler on an important area. And this one isn't any surprise - I'm not sure any other EJ was as committed as the then EJ Tayler to the importance of providing copies of w/s & bundles at the back of the room for the public to see.
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