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Open Justice Principle Trumps Privacy Rights

In the context of fraudulent misrepresentation claims by customers of Barclays Bank in respect of alleged widespread fixing of the London Interbank Offered Rate (LIBOR), the High Court has dismissed claims by more than 200 current and former employees of the bank that they should not be identified in reports of the proceedings. The Court ruled that the fundamental principle of open justice outweighed privacy and prejudice concerns.

The customers claim that they were induced to enter into loans and related hedging transactions by implied fraudulent misrepresentations by Barclays that relevant interest rates were being set by reference to LIBOR, an independent benchmark of the British Bankers Association (BBA), whereas Barclays was in fact making false and misleading submissions to the BBA and was manipulating or attempting to manipulate LIBOR.

Lawyers representing 207 past and present Barclays employees had argued that they should not be identified in the proceedings and should be referred to by initials, and that details that might lead to their identification should not be released to the press or otherwise put into the public domain until trial.

It was argued that anonymisation of the employees, who are not parties to the action, would involve no substantial interference in the administration of justice and that publicly identifying them could prejudice criminal proceedings. The employees’ application was supported by the Financial Services Authority and by prosecuting authorities but was resisted by media organisations.

Refusing the employees’ application, Mr Justice Flaux said that an anonymisation order of the breadth sought ‘would subvert the normal process of open justice in many different types of case where allegations of wrongdoing are being made’. He added, “In my judgment, the law is clear that anonymity orders will only be made in those cases where the applicant for the order established that it is strictly necessary for the proper administration of justice.”

Ruling that reputational harm, or the risk of such harm, will only very rarely justify derogation from the open justice principle, the judge said, “I have concluded that the individuals’ application that they should remain anonymous until trial fails at the first hurdle because they have simply not established by clear and cogent evidence, or at all, that the order they seek or any aspect of it is strictly necessary for the proper administration of justice.”