Judge each case on its merits. That is the conclusion to be drawn from the Court of Appeal judgment handed down on Tuesday 19th April by Gloster LJ in the case of Dechert v Eurasian Natural Resources Corporation (ENRC). This judgment upheld a decision to conduct a costs assessment in private in order to protect legal professional privilege (LPP), despite ENRC having previously given a waiver allowing Dechert to defend its billing.

Confidentiality

The background facts of the case are complex, involving a multimillion-pound claim for unreasonable costs brought against Dechert by ENRC. But the issue at hand was relatively simple: whether LPP or open justice should take precedence in determining confidentiality in proceedings. Both LPP and open justice are long established principles of English common law. The privilege conferred by LPP belongs to the client, not the lawyer. It protects clients’ communications from unauthorised disclosure by their lawyers, which would destroy confidentiality. LPP was termed ‘a fundamental right’ by Gloster LJ in her leading judgment.  

Rule of law

Described in 2013 by Lord Neuberger, President of the Supreme Court, as ‘a fundamental feature of the rule of law in any modern democratic society,’ open justice centres on accessibility and transparency: wherever possible, a court should normally sit in public.

Fundamental principles

Both principles therefore enjoy the judicial imprimatur of being ‘fundamental.’ But in a head-to-head battle, which is more fundamental? Gloster’s judgment provides greater clarity on how these two competing objectives can be reconciled.

In the original hearing of the case, ‘the question of whether the hearing should take place in public or private was ultimately a matter of discretion’ under the Civil Procedure rules, according to Roth J, the presiding judge. He concluded that ‘there was no public interest on the facts of this case for holding the hearing in public.’

Exceptions

That decision was upheld unanimously by the Court of Appeal. Gloster LJ reaffirmed that ‘the principle of open justice was subject to exceptions in appropriate circumstances and for good reasons.’ This further supported the principle set out more than a century ago by Lord Haldane: ‘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.’

Proceedings should be heard in private

In upholding the earlier decision by Roth J, Gloster LJ was adamant: ‘I have had no difficulty in concluding that the judge’s conclusion, namely that these proceedings should be heard in private, was correct.’ She confirmed that ‘Dechert has no substantial legitimate interest in having the section 70 proceedings heard in public.’ Despite the legal arguments put by Dechert, the hearing ‘should be heard in private in order to protect the rights of ENRC.’ Confirming the wording of the original judgement at first instance, she added: ‘There can be no doubt that the hearing “involves confidential information ... and publicity would damage that confidentiality;” and that a hearing in private was “necessary, in the interests of justice." ‘

No justification for open disclosure

On the point of principle, Gloster’s judgment concluded ‘LPP is so important a principle of the legal system that an implied exclusion of it should be confined in scope. I do not see how there can be any logical justification for the disclosure to be to the whole world.’ On the particular circumstances in Dechert v ENRC, she stated: ‘We do not need to decide in this case whether the absolute nature of LPP predicates that in every case involving a detailed assessment of solicitor and own client costs the client would be entitled to insist that any reference to privileged material would have to be heard in private.’

Caveat

The following caveat was added: ‘One can imagine many situations where there would be no necessity whatsoever for a solicitor and own client costs assessment to be heard in private notwithstanding the deployment of legally privileged materials.’ Nevertheless, it would seem that while the principle of open justice is ‘subject to exceptions in appropriate circumstances and for good reasons’, LPP is a principle that can trump it. But only when the case merits.

Dominic Carman is a journalist, writer and legal commentator. www.dominiccarman.com