Cross practice insights part 5: Can private wealth disputes be kept private?

In recent years, there has been a push towards increased open justice in the English courts. Estate disputes are on the rise and often ventilate highly personal details of the parties involved. The media is interested in these stories, especially when they involve high profile individuals.

It is important for parties contemplating litigating either estate or trust disputes to keep in mind that, most civil proceedings are conducted in public, and unless a settlement is reached by a certain stage, evidence filed in the proceedings may become public.

What is public?

Most hearings will be public and the public’s access to court documents is governed by the Civil Procedure Rules, specifically rule 5.4C. Currently, subject to certain conditions, non-parties are able to obtain automatically:

1. the statements of case (although, not any documents attached to a statement of case, unless otherwise ordered by the court); and
2. any judgments or orders made in public.

Non-parties can normally inspect witness statements during a trial once a witness has been called to give evidence and their statement stands as evidence in chief. However, at other times permission from the court is required.

In addition, non-parties can apply to the court for permission to obtain any other category of document, either under CPR 5.4C or the court’s inherent jurisdiction, which the Supreme Court found is unlimited and should be exercised to give effect to the principle of open justice (Cape Intermediate Holdings Ltd v Dring).

More openness

In 2024, the Transparency and Open Justice Board was created. In December 2024, it published a request for views on its proposed key objectives, which are focussed on ensuring better access to proceedings and decisions of the courts and improving access to documents.

The Civil Procedure Rule Committee (CPRC) has consulted on amending CPR 5.4C, largely in light of the decision in Cape v Dring. The major proposed change is that a non-party would also be able to obtain from the court records skeleton arguments, witness statements and affidavits (but not exhibits) and expert reports (with an exception in relation to medical reports) without requiring the court’s permission. The CPRC’s work on this is ongoing. It is clear from these two developments is that there is a continued push for openness.  

Where can the open justice principle be departed from?

The starting point is that there is no general exception to the principle of open justice. Accordingly, an application for privacy based on, for example, the risk that publication of confidential financial information about a high-profile individual may cause some sort of financial loss or reputational damage, is likely to be rejected.

However, an applicant seeking access to such documents would (save where there is an automatic right) need to be able to demonstrate that they have good reason for requesting access, and how this will serve the open justice principle. The media will, due to the value ascribed to journalism in our society, most likely be able to meet this requirement - but this is not a given. Recently, in Derek Moss v The Upper Tribunal, the Court of Appeal found that, whilst this threshold is a low one, an applicant does still need to demonstrate how it is met. An illustration of this is the application of the Supreme Court’s Cape v Dring decision by the High Court, when the case was remitted. The request for access to additional documents was denied on the basis that the applicant had no legitimate interest in obtaining access.

There is also a question of timing, in that the courts have consistently looked sceptically on attempts by the media to obtain early access to documents ahead of the evidence being put before, and considered by, the court in deciding issues in the case.

The threshold for a hearing to be held in private pursuant to CPR 39.2 is high. However, case law has clarified that, as well as satisfying the grounds in CPR 39.2, it should only be held in private where it is necessary and proportionate. In other words, this is intended to only occur in exceptional circumstances, and the exclusion will only apply to the minimum extent possible.

Referring back to our estate dispute situation, if the estate or trust in question involves minor beneficiaries or vulnerable adults, the court will have to balance the principle of open justice against the risk of harm to those persons’ interests. Even in these cases, it is very rare that proceedings relating to trust and estate disputes will be heard in private – but there is a greater likelihood that some sort of privacy-related order will be made.

The European Convention on Human Rights (ECHR) will be a significant factor that the court will be required to consider - for instance, Article 8 (the right to respect for private and family life) and Article 10 (the right to freedom of expression). However, the relevant ECHR rights must be balanced against one another, and against the open justice principle. To that end, the potential for reputational damage (invoking Article 8) has been found, in of itself, not to be sufficient justification for a departure from the open justice principle.  

A private hearing is not the only answer

Where a private hearing would be inappropriate, an order may be made directing that the identity of any person not be disclosed if such a step is necessary to protect their interests (referred to in PMC v Local Health Board as a ‘withholding order’). A court may also give directions preventing the publication of their name or other details, to the extent considered necessary in light of the reasoning behind the decision to impose the withholding order. This order, known as a ‘reporting restriction order’, can only be permitted by reference to a statutory power. Section 11 of the Contempt of Court Act 1981 is the principal (although not the only, as demonstrated below) avenue for seeking such an order. But, as confirmed in PMC, a reporting restriction is not a standalone power and it is contingent on a withholding order having been made.

Recent cases which have involved child beneficiaries, most often involving applications under the Variation of Trusts Act 1958, suggest that the usual approach is for the court to order that these applications be heard in open court, but with a withholding order and reporting restrictions (as allowed for by section 39 Children and Young Persons Act 1933) to protect the identity of the children.

As Nickin J identified in PMC, these two types of order together are referred to colloquially as ‘anonymity orders’, but they each derive from different sources. A withholding order is part of the court’s general powers to regulate its proceedings, whereas a reporting restriction order is reliant on a statutory foundation.

Another alternative, or sometimes complementary, solution is for sensitive or private information to be segregated in a confidential schedule, which, again, avoids the need to infringe the open justice principle.

Media reports of proceedings

Private wealth disputes can attract significant press attention. Where press reports are contemporaneous, fair and accurate they will be protected by absolute privilege. This is a complete defence to a defamation claim. Non-contemporaneous, but still fair and accurate, reports are protected by qualified privilege. A defence of qualified privilege is defeated where the defendant has been malicious.

If the reporting strays from, or builds on, what has been said in court or given in evidence, then the journalist should contact the party identified about what they intend to publish to give them a reasonable opportunity to respond in order that they can avail themselves of other defences in defamation. It is advisable, therefore, to take specialist advice on how to deal with media interest in advance, in order to plan how to respond and best protect yourself from such scrutiny.

Further information

If you have any questions regarding this blog, please contact Sophie Mass in our Dispute Resolution team.

About the authors

Sophie is an Associate in the Dispute Resolution team. She specialises in trust, estate and court of protection disputes, often acting in high value and complex cases.