H v S

• Jurisdiction: New Zealand
• Judge: Asher J
• Judgment Date: 14 March 2016
• Neutral Citation: [2016] NZHC 433
• Date: 14 March 2016
• Court: High Court
• Docket Number: CIV-2013-404-002404

[2016] NZHC 433

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-002404

BETWEEN

H and H

First Plaintiffs

XYZ Limited

Second Plaintiff

and

S

First Defendant

S and others as trustees of the T Trust

Second Defendants

Counsel:

Lowndes Associates, Auckland.

RJ Katz QC, Auckland.

JUDGMENT OF Asher J

(on anonymisation)

Introduction

1 I am issuing a judgment on an interlocutory issue on this file. I had noted that in earlier decisions that have been released on the file, the parties' names and details have been anonymised. I inquired as to whether anonymisation was still appropriate.

2 The plaintiffs advise that they no longer seek anonymisation. This was significant as anonymisation had been previously granted primarily on the basis of the plaintiffs' claims to privilege concerning certain overseas transactions. I sought submissions as to the reasons why anonymisation should continue.

3 The defendants have filed submissions and an affidavit of the first defendant in support of anonymisation. The plaintiffs who no longer support anonymisation have filed a memorandum to that effect. There is no formal notice of opposition or affidavits in opposition provided.

4 In the first defendant's affidavit he asserts that his professional practice is vulnerable, and is likely to be irreparably damaged should information about the allegations against him fall into the public domain. His counsel asserts that the claims against him are tantamount to claims of fraudulent conduct. The first defendant also refers to various personal difficulties and pressures that he and his family faces, and their vulnerability to adverse publicity. He claims that the viability of his practice and the stability of his family would be destroyed by publication.

5 Additionally, in response to interim injunction proceedings, the first defendant has given undertakings to the Court not to disclose details about the plaintiffs to third parties. He asserts that the plaintiffs are seeking to muzzle him by the undertakings, and yet to remain free to publish any judgment in the proceeding about the pending substantive trial, with consequent negative publicity for him.

6 I have difficulty with this last submission. The undertakings in question related to the disclosure of privileged information to specific authorities, rather than to any general publicity about the fact of the proceedings. These undertakings protect the plaintiffs' confidential information, which the first defendant received as their lawyer and subject to the obligations on a solicitor-client relationship, despite the evident breakdown of that relationship. He is bound by those. The undertakings have no relationship to the question of name suppression, as the first defendant would be able to respond to general publicity about the case, and to claim that he had done nothing unlawful, without breaching his undertakings.

Discussion

7 As a general rule, the principle of open justice works against anonymisation of minutes or rulings in civil proceedings. It requires that the parties' true names be used in a judgment, and that the general nature of a proceeding be known. Following Clark v Attorney-General (No 1), and Brown v Attorney-General, exceptional or extraordinary circumstances compelling the displacement of the principle are required before suppression orders, including for anonymisation, are granted. 1 In JX MX v Dartford & Gravesham NHS Trust, the English Court of Appeal said: 2

[17] The identities of the parties are an integral part of civil proceedings and the principle of open justice requires that they be available to anyone who may wish to attend the proceedings or who wishes to provide or receive a report of them. Inevitably, therefore, any order which prevents or restricts publication of a party's name or other information which may enable him to be identified involves a derogation from the principle of open justice and the right to freedom of expression. Whenever the court is asked to make an order of that kind, therefore, it is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required for that purpose.

8 I accept that when it comes to documents and the detail of the proceedings different considerations apply and these are generally covered by the civil Access to Court Documents rules, as detailed in the High Court Rules. 3

9 This is still the pre-trial stage of proceedings. It is recognised in the Access to Court Documents rules 4 and in the case law, that pre-trial the Courts can place more weight on privacy concerns and less weight on open justice than at the trial

phase when matters are being argued in open court. 5 Part of the reasoning behind refusing access to court documents at this first stage is that access does not further the cause of open justice, as the documents cannot shed light on a proceeding where none has occurred, and when allegations in statements of claim and defence and other documents are contested and not in final form they are less likely to be accurate. 6 Judgments and minutes are in a different category to other Court documents, and can be accessed as of right under rr 3. 5 and 3.8 of the High Court Rules (subject to a general judicial discretion to direct that a document not be accessed). 7

10 I consider that the reasoning and rules in relation to access to court documents have some relevance to assessing suppression of civil judgments at a pre- trial stage. In this case, despite the four contested hearings which have been heard in this Court in relation to this claim, there has been no evaluation of the contentions in the statement of claim. They may be changed and refined, and the claims as to the first defendant's breaches of duty are untested.

11 I also refer to the criminal name suppression regime, and the onerous requirements placed on defendants to achieve name suppression. 8 Naturally that regime has no direct relevance to the anonymisation of civil judgments, and the considerations that apply are dominated by the particular interest that the public has in knowing the names of those who are being...