Fallows & Ors v News Group Newspapers Ltd UKEAT/0075/16/RN
Appeal against the revocation of a RRO which prevented the identification of the parties to an unfair dismissal and sex discrimination claim. Appeal dismissed.
The Claimant brought proceedings against the Respondents and a RRO was made. However, the claim was then withdrawn after the parties reached a settlement. The ET determined that, upon conducting a fresh balancing exercise, the RRO should now be discharged. The Appellants argued that the ET had no power, post-withdrawal of the claim, to vary the RRO because it was functus and News Group Newspapers cross-appealed, claiming that the RRO had automatically expired upon withdrawal.
The EAT dismissed both the appeal and cross-appeal. 1) The Employment Judge had jurisdiction to consider an extant RRO notwithstanding the fact that the claims had been withdrawn on settlement. The Employment Tribunal was not functus as the Appellants sought to argue. 2) Nor did the RRO expire automatically upon withdrawal. Rule 50(1) of the 2013 Rules permits RROs that are wider in extent and circumstances than RROs permitted under section 11 ETA 1996 and Rule 50(3)(d) of the 2013 Rules. 3) There was no error of law or principle in the balancing exercise conducted by the Employment Judge. Accordingly there was no basis on which to interfere with his conclusion that the Privacy Orders should be revoked.
Appeal No. UKEAT/0075/16/RN
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 28 April 2016
Judgment handed down on 13 May 2016
THE HONOURABLE MRS JUSTICE SIMLER DBE (PRESIDENT)
(3) WILLIAM A BONG LIMITED
(4) HST GLOBAL LIMITED (APPELLANTS)
NEWS GROUP NEWSPAPERS LIMITED (RESPONDENT)
Transcript of Proceedings
JUDGMENT**APPEAL AND CROSS-APPEAL**
For the Appellants MR HUGH TOMLINSON QC (of Counsel) and MR JAMES LADDIE QC (of Counsel) Instructed by: Mishcon de Reya LLP Africa House 70 Kingsway London WC2B 6AH
Slater and Gordon (UK) 50-52 Chancery Lane London WC2A 1HL
For the Respondent MR GAVIN MILLAR QC (of Counsel) and MR DARRYL HUTCHEON (of Counsel) Instructed by: Simons Muirhead & Burton Solicitors 8-9 Frith Street London W1D 3JB**SUMMARY**
PRACTICE AND PROCEDURE - Restricted reporting order
- The Employment Judge had jurisdiction to consider an extant RRO notwithstanding the fact that the claims had been withdrawn on settlement. The Employment Tribunal was not functus as the Appellants sought to argue.
- Nor did the RRO expire automatically upon withdrawal. Rule 50(1) of the 2013 Rules permits RROs that are wider in extent and circumstances than RROs permitted under section 11 ETA 1996 and Rule 50(3)(d) of the 2013 Rules.
- There was no error of law or principle in the balancing exercise conducted by the Employment Judge. Accordingly there was no basis on which to interfere with his conclusion that the Privacy Orders should be revoked.
- This is an appeal against an order dated 9 March 2016 made by Employment Judge Auerbach following a Preliminary Hearing, revoking a Restricted Reporting Order and Anonymity Order (together referred to as the "Privacy Orders") made on 29 January 2016 in relation to Employment Tribunal proceedings brought by Mr John Fallows against Sir Elton John, William A Bong Limited and HST Global Limited (together referred to as the Appellants). The revocation has been suspended pending the determination of this appeal, and cross-appeal, which have been expedited.
- News Group Newspapers Limited, referred to as NGN, wish to publish a newspaper article about the proceedings without the restrictions contained in the Privacy Orders. The Appellants wish to prevent publication of an article without restrictions.
- Mr Hugh Tomlinson QC and Mr James Laddie QC appear for the Appellants. Mr Gavin Millar QC and Mr Darryl Hutcheon appear for NGN. I am grateful to all counsel for the considerable assistance provided to me.
- When the Notice of Appeal dated 17 March 2016 was lodged the Appellants did not include with it copies of the ET1 and ET3 on the basis that they are "private and confidential documents which should not be in the possession of NGN; it would partially undermine the purpose of the appeal if the Appellants were obliged to furnish the pleadings. Further those documents are not germane to the appeal." The pleadings were, however, sent to the Employment Appeal Tribunal at the same time but under separate cover, solely to secure that the appeal was properly instituted, and without copying those documents to NGN. Before the appeal hearing, on 18 April 2016, NGN applied for an order that the bundle of material documents for the appeal hearing should include copies of the ET1 and ET3. That order was opposed by the Appellants for the reasons just given. In a letter dated 20 April 2016 Mishcon de Reya (solicitors for Sir Elton John, William A Bong Limited and HST Global Limited) said that they did not rely on those documents in their Notice and grounds of appeal and did not anticipate that the documents would be available to the Judge hearing the appeal. The Registrar directed that NGN's application be refused. There was neither an appeal against that direction nor was the application renewed at the beginning of the appeal hearing. Consequently, at the Appellants' behest I have not been provided with or seen copies of the ET1 and ET3 in the underlying proceedings.
- The factual background is somewhat complicated. In short summary, Mr Fallows, a hairdresser formerly employed by Sir Elton John and William A Bong Limited to provide hairdressing services to HST Global Limited, was dismissed from his employment in mid-2015. He brought claims against Sir Elton John, William A Bong Limited and HST Global Limited on 19 August 2015, alleging unfair dismissal and unlawful sex discrimination. His claim included allegations of sexual misconduct as that term is defined in section 11(6) of the Employment Tribunals Act 1996 ("ETA 1996"). The claims were denied by Sir Elton John, William A Bong Limited and HST Global Limited. In October 2015 Sir Elton John, William A Bong Limited and HST Global Limited applied for various privacy orders under Rule 50 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013, Schedule 1 ("the 2013 Rules"). The application was considered by Employment Judge Auerbach at a Preliminary Hearing on 18 November 2015, held in private in accordance with Rule 56 relating to Preliminary Hearings. By a decision promulgated on 9 December 2015, he refused all applications for privacy orders. At the time of his decision, the proceedings were ongoing and had been listed for a hearing to commence on 29 March 2016.
- Sir Elton John, William A Bong Limited and HST Global Limited appealed against Employment Judge Auerbach's refusal to make privacy orders. Permission to appeal was granted and the appeal was listed to be heard on 17 February 2016. Anonymity orders made previously by Employment Judge Glennie were maintained pending the appeal.
- On 29 January 2016, a representative of Simons Muirhead & Burton, the solicitors representing NGN, attended the Tribunal Office seeking information as to whether reporting restrictions were in place. The attendance of this representative came to the attention of Employment Judge Auerbach, who immediately convened a Telephone Preliminary Hearing at which he made a Restricted Reporting Order ("RRO"). NGN's solicitors were on the telephone during part of the Preliminary Hearing and were informed that there was to be a further Preliminary Hearing on 4 February 2016 at which their client could apply for the RRO to be lifted or varied.
- By letter dated 1 February 2016, the Employment Tribunal confirmed to the parties' and NGN's solicitors the issue of the RRO "granted only in order to hold the ring because of the pending appeal to the Employment Appeal Tribunal".
- NGN confirmed that it would not attend to make representations at the 4 February 2016 Preliminary Hearing, which proceeded in their absence. By a decision promulgated on 10 February 2016 Employment Judge Auerbach declined to vary his earlier decision refusing to order restrictions on publicity. Meanwhile, NGN applied to be heard by the Employment Appeal Tribunal on the appeal against the 9 December 2015 decision.
- Thereafter, the parties to the Employment Tribunal proceedings reached a confidential settlement of the claim, and by letter dated 15 February 2016, Mr Fallows' solicitors wrote to the Employment Tribunal seeking to withdraw the claim in its entirety and stating that Mr Fallows did not object to its dismissal on withdrawal. On the same day, the Appellants' solicitors on both sides wrote jointly to the Employment Appeal Tribunal, withdrawing the appeals, which were thereafter dismissed. NGN was notified.
- By letter dated 17 February 2016, NGN's solicitors wrote to the Employment Tribunal asserting that the RRO no longer had effect in light of the withdrawal of the claim. This was disputed by solicitors for Sir Elton John, William A Bong Limited and HST Global Limited. By letter dated 19 February 2016, NGN applied to the Employment Tribunal under Rule 50(4) for the RRO to be revoked or discharged.
- By letter dated 25 February 2016, Mr Fallows' solicitors stated that their client understood that the RRO remained in place, that he had not spoken to the press or provided them with pleadings or any other documents, that as part of the settlement all allegations had been withdrawn and that he opposed NGN's application. Since the claim had not yet been dismissed on withdrawal, Employment Judge Auerbach delayed further consideration of the question of dismissal of the claim until the hearing on 8 March 2016.
- NGN's application was heard by Employment Judge Auerbach on 8 and 9 March 2016. NGN, Sir Elton John, William A Bong Limited and HST Global Limited were represented. Mr Fallows was not represented but submitted written representations opposing NGN's application.
- The Order made by Employment Judge Auerbach on 29 January 2016 reads:
"Pursuant to section 11 Employment Tribunals Act 1996 and Rule 50 Employment Tribunals Rules of Procedure 2013, and in relation to the above proceedings, this Order prohibits the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain. "Identifying matter", in relation to the persons named below, means any matter likely to lead members of the public to identify any of them as a person who is a party to, or is the maker of, or affected by, any allegation made in, the proceedings in this case
The following persons may not be so identified:
This order remains in force from when it was made, at 4:30 PM on 29 January 2016, until further order of the ET or the EAT …"
A penal sanction was included.
- The decision to revoke the Privacy Orders on 9 March 2016 by Employment Judge Auerbach had three distinct aspects:
a. The Employment Tribunal rejected the Appellants' argument that it had no power, post-withdrawal of the claim, to vary the RRO because it was functus (paragraphs 28-43). The Appellants challenge that finding by ground one of the appeal.
b. The Employment Tribunal rejected NGN's argument that the RRO had automatically expired upon withdrawal (paragraphs 44-64). NGN challenges that conclusion by the cross-appeal.
c. The Employment Tribunal determined that, upon conducting a fresh balancing exercise, the RRO should now be discharged (paragraphs 65-99). The Appellants challenge this decision by ground two of the appeal.
- Before addressing these arguments it is convenient to set out the materially relevant legislation.
- Section 11 ETA 1996 provides as follows:
"11. Restriction of publicity in cases involving sexual misconduct.
(1) [Employment tribunal] procedure regulations may include provision—
(a) for cases involving allegations of the commission of sexual offences, for securing that the registration or other making available of documents or decisions shall be so effected as to prevent the identification of any person affected by or making the allegation, and
(b) for cases involving allegations of sexual misconduct, enabling an [employment tribunal], on the application of any party to proceedings before it or of its own motion, to make a restricted reporting order having effect (if not revoked earlier) until the promulgation of the decision of the tribunal.
(2) If any identifying matter is published or included in a relevant programme in contravention of a restricted reporting order—
(a) in the case of publication in a newspaper or periodical, any proprietor, any editor and any publisher of the newspaper or periodical,
(b) in the case of publication in any other form, the person publishing the matter, and
(c) in the case of matter included in a relevant programme—
(i) any body corporate engaged in providing the service in which the programme is included, and
(ii) any person having functions in relation to the programme corresponding to those of an editor of a newspaper,
shall be guilty of an offence and liable on summary conviction to a fine not exceeding level 5 on the standard scale.
(3) Where a person is charged with an offence under subsection (2) it is a defence to prove that at the time of the alleged offence he was not aware, and neither suspected nor had reason to suspect, that the publication or programme in question was of, or included, the matter in question.
(4) Where an offence under subsection (2) committed by a body corporate is proved to have been committed with the consent or connivance of, or to be attributable to any neglect on the part of—
(a) a director, manager, secretary or other similar officer of the body corporate, or
(b) a person purporting to act in any such capacity,
he as well as the body corporate is guilty of the offence and liable to be proceeded against and punished accordingly.
(5) In relation to a body corporate whose affairs are managed by its members "director", in subsection (4), means a member of the body corporate.
(6) In this section—
"identifying matter", in relation to a person, means any matter likely to lead members of the public to identify him as a person affected by, or as the person making, the allegation,
"relevant programme" has the same meaning as in the Sexual Offences (Amendment) Act 1992,
"restricted reporting order" means an order—
(a) made in exercise of a power conferred by regulations made by virtue of this section, and
(b) prohibiting the publication in Great Britain of identifying matter in a written publication available to the public or its inclusion in a relevant programme for reception in Great Britain,
"sexual misconduct" means the commission of a sexual offence, sexual harassment or other adverse conduct (of whatever nature) related to sex, and conduct is related to sex whether the relationship with sex lies in the character of the conduct or in its having reference to the sex or sexual orientation of the person at whom the conduct is directed,
"sexual offence" means any offence to which section 4 of the Sexual Offences (Amendment) Act 1976, the Sexual Offences (Amendment) Act 1992 or section 274(2) of the Criminal Procedure (Scotland) Act 1995 applies (offences under the Sexual Offences Act 1956, Part I of the Criminal Law (Consolidation) (Scotland) Act 1995 and certain other enactments), and "written publication" has the same meaning as in the Sexual Offences (Amendment) Act 1992. "
- The following provisions of the 2013 Rules are particularly relevant:
"50. Privacy and restrictions on disclosure
(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.
(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.
(3) Such orders may include-
(a) an order that a hearing that would otherwise be in public be conducted, in whole or in part, in private;
(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;
(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;
(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.
(4) Any party, or other person with a legitimate interest, who has not had a reasonable opportunity to make representations before an order under this rule is made may apply to the Tribunal in writing for the order to be revoked or discharged, either on the basis of written representations or, if requested, at a hearing.
(5) Where an order is made under paragraph (3)(d) above-
(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person's identification;
(b) it shall specify the duration of the order;
(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and
(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.
(6) "Convention rights" has the meaning given to it in section 1 of the Human Rights Act 1998.
End of claim
51. Where a claimant informs the Tribunal, either in writing or in the course of a hearing, that a claim, or part of it, is withdrawn, the claim, or part, comes to an end, subject to any application that the respondent may make for a costs, preparation time or wasted costs order.
Dismissal following withdrawal
52. Where a claim, or part of it, has been withdrawn under rule 51, the Tribunal shall issue a judgment dismissing it (which means that the claimant may not commence a further claim against the respondent raising the same, or substantially the same, complaint) unless-
(a) the claimant has expressed at the time of withdrawal a wish to reserve the right to bring such a further claim and the Tribunal is satisfied that there would be legitimate reason for doing so; or
(b) the Tribunal believes that to issue such a judgment would not be in the interests of justice.
Scope of preliminary hearings
53.-(1) A preliminary hearing is a hearing at which the Tribunal may do one or more of the following-
(a) conduct a preliminary consideration of the claim with the parties and make a case management order (including an order relating to the conduct of the final hearing);
(b) determine any preliminary issue;
(c) consider whether a claim or response, or any part, should be struck out under rule 37;
(d) make a deposit order under rule 39;
(e) explore the possibility of settlement or alternative dispute resolution (including judicial mediation).
(2) There may be more than one preliminary hearing in any case.
(3) "Preliminary issue" means, as regards any complaint, any substantive issue which may determine liability (for example, an issue as to jurisdiction or as to whether an employee was dismissed).
When preliminary hearings shall be in public
56. Preliminary hearings shall be conducted in private, except that where the hearing involves a determination under rule 53(1)(b) or (c), any part of the hearing relating to such a determination shall be in public (subject to rules 50 and 94) and the Tribunal may direct that the entirety of the hearing be in public."**Does the Employment Tribunal have power to vary an RRO following withdrawal of a claim?**
- This issue was addressed by the Employment Judge at paragraphs 28 to 43. He concluded that the Tribunal retained jurisdiction even after withdrawal of the claim to consider and determine an application by the press to vary or revoke an existing RRO. In challenging that decision on behalf of the Appellants, Mr Tomlinson QC relies on Rule 51 of the 2013 Rules, submitting that its clear effect is to bring a claim to an end where it is withdrawn, subject only to three exceptions, all identified in Rule 51 and none of which includes applications to discharge or vary a privacy order in force at the time. The result is that the Tribunal has no jurisdiction to vary or revoke an extant privacy order after withdrawal of a claim. This is a surprising and counter-intuitive submission. If correct it would have the effect of transforming a restricted reporting order made temporarily and only to hold the ring pending an appeal, into an order permanently restricting publication upon settlement and withdrawal, even in a case where there may be a strong public interest in publication without restriction and only limited interference with Convention rights.
- Mr Tomlinson relies on Davidson v Dallas Macmillan  IRLR 439 (Court of Session) as supporting his submission. In Davidson an RRO was made before the hearing of proceedings involving allegations of sexual misconduct. During the course of the hearing itself the claim was withdrawn. A journalist applied for the RRO to be revoked. Although Rule 50(7) of the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2004 ("the 2004 Rules") only permitted interested parties to make applications before a full restricted reporting order was made, the Tribunal decided that the journalist had the right to be heard and that it had the power to revoke the RRO which it did, albeit delaying implementation so that the order could be appealed. The Employment Appeal Tribunal allowed the appeal holding that the journalist had no right to be heard, and (obiter) that the Tribunal was functus officio in any event and so had no jurisdiction to revoke the order. On appeal, the Court of Session held that the journalist had the right to be heard and make representations, but agreed with the Employment Appeal Tribunal that the effect of the withdrawal was that the proceedings were at an end and the Tribunal had no jurisdiction to revoke the RRO.
- The Court of Session's decision was based on an analysis of Rule 25(3) of the 2004 Rules (now Rule 51). This provided as follows:
"25(3) The Secretary shall inform all other parties of the withdrawal. Withdrawal takes effect on the date on which the Employment Tribunal Office (in the case of written notifications) or the tribunal (in the case of oral notification) receives notice of it and where the whole claim is withdrawn, subject to para (4), proceedings are brought to an end against the relevant respondent on that date. Withdrawal does not affect proceedings as to costs, preparation time or wasted costs."
- At paragraph 29 the Court held:
" …an RRO is made in the types of proceedings specified … If the proceedings are brought to an end, as provided by rule 25(3), there is no scope for treating it as being the subject matter of separate proceedings, unless there is express provision to that effect. The last sentence of rule 25(3) is entirely specific as to the proceedings as to costs, preparation time or wasted costs which survive the ending of the main proceedings. In the absence of such an express provision as to revocation of any RRO, we are driven to the conclusion that there can be no further proceedings with regard to a full RRO. The consequence of this is that we have to agree with the EAT…"
- Employment Judge Auerbach distinguished Davidson at paragraphs 31 to 38 of his judgment. The Appellants challenge those conclusions and contend that the Judge had no legitimate basis for distinguishing Davidson and should have followed that decision. I disagree. In my judgment the Employment Judge was correct to distinguish Davidson for the following reasons, which are largely the same as those he gave.
- The answer to the question whether Tribunals have power to vary extant RROs after withdrawal of the underlying claim, depends on the proper construction of Rule 50(4) and the extent to which Rule 51 affects that.
- The 2004 Rules in force when Davidson was decided, afforded a non-party a limited right to make representations about an RRO but only before an order had been made (Rule 50(7)). In Davidson this was interpreted as applying only during the currency of the proceedings because once "the proceedings" are brought to an end pursuant to Rule 25(3) there was no scope for treating the RRO as the subject matter of separate proceedings. Rule 50(4) of the 2013 Rules (brought into force following Mr Justice Underhill's Review of Employment Tribunal Rules, "the Underhill Review") is wider than Rule 50(7) and as the Employment Judge said, makes all the difference. Whereas Rule 50(7) contains an express temporal restriction on the right to be heard, Rule 50(4) contains no temporal restriction on this right. It permits anyone with a legitimate interest who has not had a reasonable opportunity to make representations before an order is made, to do so at any time, even after the order is made, in order to seek to discharge it.
- That wide right is not limited by Rule 51 of the 2013 Rules. Had that been the intention, it would have been easy to do so expressly by limiting press rights in relation to applications to discharge or vary privacy orders in Rule 50(4). That was not done and the new right was introduced without temporal limitation. Nor is there any good policy reason for Rule 51 to trump new Rule 50(4). While settlements are to be encouraged, the public interest in parties settling their disputes does not outweigh the fundamental principle of open justice.
- In any event, I do not agree with Mr Tomlinson that Rule 51 is expressed in identical terms to Rule 25(3), though I accept that it is very similar. Rule 51 is expressed by reference to the effect of withdrawal of the "claim or part of the claim" on "proceedings" in the Tribunal. It provides that once a claim or part of a claim is withdrawn, the claim or part of the claim (not the proceedings) comes to an end. The right in Rule 50(4) is not defined by reference to the claim in the proceedings but is focused on the existence of a privacy order. It provides a freestanding process that can be triggered at any time by a non-party to the claim. Although the application under Rule 50(4) is made in the proceedings in exercise of the Employment Tribunal's jurisdiction under ETA 1996, it is collateral to the underlying claim (see by analogy R(Guardian News and Media Ltd) v City of Westminster Magistrates Court.
- The absence of any reference to applications in respect of privacy orders in the list of applications that can be made notwithstanding the underlying claim being at an end within Rule 51, does not, as Mr Tomlinson submits, lead to the conclusion that Parliament in passing the 2013 Rules, accepted the ratio of the decision in Davidson. Rather it is consistent with the analysis above that such applications are not part of the underlying claim that is at an end, but are freestanding and separate.
- Moreover, I agree with the Employment Judge that the conclusion that Parliament cannot be assumed to have intended Rule 51 to have the effect of cutting down the scope of Rule 50(4) is reinforced by a consideration of the decision of the European Court of Human Rights in Mackay and BBC Scotland v UK  53 EHRR, a decision that post-dated and superseded Davidson. The critical issue in Mackay was whether the BBC had an effective means of challenging a reporting restrictions order which interfered with its Article 10 rights. The order in that case was made by a Scottish Court without hearing representations from the BBC. The proceedings concluded a month later and the BBC's application to revoke the reporting restrictions order was not heard for a further three month period. In those circumstances the Strasbourg Court held that the BBC's right under Article 13 of the Convention to an effective remedy to enforce its Article 10 rights to report on the proceedings had been violated. Although Article 13 is not a scheduled Convention right under the Human Rights Act 1998, the UK is a signatory to the Convention and Article 13 gives rise accordingly to a binding international law obligation with which Parliament is presumed to have intended to act compatibly. If the Appellants' argument is correct that Rule 51 trumps Rule 50(4) to create a permanent privacy order where a claim is withdrawn, the press would have no ability ever to challenge such an order with a consequent permanent interference with Article 10 rights. It would be surprising if that result was intended. In my judgment it was not: Rule 50(4) contains no limitation on the right to challenge such an order. To the extent that it can be said to be ambiguous, given the presumption that in enacting the 2013 Rules Parliament intended to legislate compatibly with Convention and international obligations, properly construed, Rule 50(4) creates an open ended right that is not limited by Rule 51.
- If I am wrong that the decision in Davidson can be distinguished, the reasons given above constitute exceptional circumstances justifying a conclusion that it should not be followed on this point. Any application to vary or revoke a privacy order is separate from and collateral to the underlying claim in the proceedings. Since any order made by a Tribunal or Court restricting publication engages the principle of open justice and Article 10, the Rules must provide an effective means of challenging such an order so that Tribunals must retain jurisdiction to entertain such a challenge. The construction of the relevant Rules in Davidson is unsustainable in light of these considerations and for the reasons given above.
- Accordingly, the Employment Judge was correct to answer this question as he did and the first ground of appeal fails.
- Mr Millar QC on behalf of NGN contends that the RRO lapsed automatically following the settlement and withdrawal of the claim, and that the Employment Judge's conclusion to the contrary effect was in error of law. There are two limbs to this argument which can be summarised as follows:
a. First, that an RRO made under section 11(1)(b) of the ETA 1996 cannot survive beyond the termination of proceedings, and is limited to the period while the proceedings are ongoing. That principle applies irrespective of whether proceedings come to an end by a Tribunal decision or following settlement on withdrawal.
b. Secondly, that in the absence of any inherent jurisdiction of statutory Tribunals to make privacy orders, the power to do so must derive from express statutory provision. The only such power is provided by sections 11 and 12 ETA 1996, both of which limit the maximum period for which such an order can have effect until promulgation of the decision of the Tribunal. The Employment Appeal Tribunal decisions relied on in support of the existence of a wider power do not provide the weight of authority that was derived from them by the Employment Judge. The Employment Appeal Tribunal was not asked to determine whether RROs could continue beyond the end of proceedings in any of the three appeals X v Commissioner of police of the Metropolis  IRLR 411, A v B  IRLR 844 or [F v G]()  ICR 246. Further, even if wrong, NGN contends that an RRO cannot last beyond the proceedings unless the Employment Tribunal explicitly orders this: F v G at . Since Employment Judge Auerbach's RRO made no explicit order to this effect, the RRO should be treated as having lapsed.
- The Employment Judge rejected NGN's contentions at paragraphs 44 to 64. He held that Rule 50(1) of the 2013 Rules confers on Tribunals a wider power to make privacy orders than that derived from section 11 ETA 1996, including a power to make an order that outlasts the proceedings in an appropriate case. Further and in any event, he did not accept that an order granted under section 11 and Rule 50(3)(d) would lapse upon withdrawal of a claim. He observed that withdrawal is an action by a party and not the promulgation of a decision by the Tribunal, which is required following notification of withdrawal, to dismiss the claim upon withdrawal pursuant to Rule 52. Given that and the clear words of section 11(1)(b) he concluded that those clear words did not encompass a simple withdrawal.
- I accept as Mr Millar submits, that Tribunals have no inherent powers to make orders affecting the press or other media in relation to their conduct outside court, for example, restricting the way they investigate or report on proceedings. In In re Trinity Mirror  QB 770 for example, the Court of Appeal rejected an argument that section 45(4) of the Supreme Court Act 1981 gave the Crown Court power to make RROs prohibiting the identification of a criminal defendant. It did not accept the argument that the Crown Court gained the power under section 45(4) if the identification of an individual would infringe their or their family's Article 8 rights: see . As a creature of statute, the Crown Court had no inherent powers to make orders of that kind, and the Convention while providing a reason for making an injunction, was not enough.
- I also agree that such orders operate to the extent specified by them as injunctions against the public at large restricting freedom of speech. The power to make such an order in the absence of any inherent jurisdiction must be conferred by legislation. Employment Tribunals are no exception. They are creatures of statute with limited statutory jurisdiction. They derive their powers from enabling legislation.
- Prior to the introduction of the 2013 Rules it was recognised that the Rules then in force (Rules 49 and 50 of the 2004 Rules) provided a restrictive regime in relation to privacy orders deriving from the prescriptive terms of sections 11 and 12 ETA 1996, limiting the circumstances and the extent of such an order. It is easy to think of cases that do not concern allegations of sexual misconduct or disability where Article 8 rights may nevertheless be engaged and privacy orders deemed appropriate: cases involving sensitive or personal medical issues amounting to psychiatric injury for which compensation is sought; the facts of F v G provide another strong example. That recognition is reflected in the three Employment Appeal Tribunal appeals referred to above. In those cases, nevertheless, the Employment Appeal Tribunal concluded (rightly or wrongly) that the general power conferred by the relevant Rules on Tribunals to regulate their own procedures, could be read as giving Tribunals the necessary wider power in cases involving the principle of effectiveness under EU law or where Article 8 rights required protection, to make an order going beyond the strict terms of sections 11 and 12 ETA 1996 and Rules 49 and 50 made under them. Thus for example in F v G, Underhill J (President) gave guidance as to the approach to be adopted by Tribunals. The guidance does not form part of the ratio of the decision but is Presidential guidance and highly persuasive:
"(ii) if, however, one or both of those rules (49 or 50) has no application – say, because there is no allegation of the commission of a sexual offence or of sexual misconduct nor any (in short) disability issue – the necessary measures, whether by way of an RRO (footnote 8) or by way of anonymisation, should be taken in the exercise of the general powers of the tribunal under rule 10 in accordance with the reasoning in X and A v B.… .[Footnote 8 explained: "There is no harm in continuing to use this familiar abbreviation as long as it is appreciated that it may apply to a wider order restricting the reporting of identifying matter made otherwise than in accordance with rule 50"].
(iii) There may be cases which fall within the scope of rule 50 but where the relief available under that rule is too limited – e.g. if restriction of reporting is required beyond the end of the proceedings. In such a case the tribunal should, in case any tricky issues arise subsequently, make clear what it is doing under rule 50 and what extra it is doing under the wider powers recognised in X and A v B."
(d) If there is no entitlement to protection under Convention rights, then of course the issue falls to be dealt with purely under rules 49 or 50 as the case may be."
- The Underhill Review thereafter proposed a new rule relating to privacy, restricted reporting and anonymity that would provide for a more flexible regime allowing Tribunals to take
"appropriate steps to balance the important principles of open justice and freedom of expression on the one hand and of privacy and effective justice on the other. The rule goes beyond the explicit rule-making powers conferred by the 1996 Act but we have no doubt that it is within your powers under the Human Rights Act.…".
- The Government response to the Underhill Review was to introduce the 2013 Rules, and in particular Rule 50 (1) which provides for Employment Tribunals to:
"make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person…".
There is no temporal or other limitation on the type of order that may be made under this Rule. Rule 50 (3) is plainly not exhaustive of the types of orders that may be made, but merely identifies what orders may be included. Parliament has given a wider power in Rule 50(1) notwithstanding the existence of a more restrictive, specific power in Rule 50(3)(d) to make RROs "within the terms of section 11 or 12", recognising in light of the authorities referred to above and the Underhill Review, that a wider power was required. The obvious inference, having regard to the genesis of this rule, is that Parliament intended Employment Tribunals to have the power to make RROs in a broad range of circumstances, and to an extent that went wider than the power strictly defined in sections 11 and 12 ETA 1996.
- Although "restricted reporting order" is a term of art defined by section 11(6) ETA 1996, and there is no reference in Rule 50 to any other kind of RRO, there is no reason (as Underhill J said in F v G) why the abbreviation RRO should not be used when making an order preventing or restricting disclosure of any aspect of proceedings under Rule 50(1) provided that it is understood as applying to a wider order restricting the reporting of identifying matter than would otherwise be permitted under section 11 and Rule 50(3)(d) alone. It is unfortunate that as currently drafted, Rule 50 has the effect that none of the procedural safeguards identified by Rule 50(5) apply to RROs made other than under Rule 50(3)(d), but I do not consider that this was its intended effect. Had Rule 50 been enacted in the terms proposed by the Underhill Review (see proposed Rule 55(2)(e) of Annex A September 2012 Consultation) both RROs made under Rule 50 (3)(d) and orders having similar effect to such RROs but made in circumstances other than those identified in sections 11 and 12 or extending beyond the date of promulgation of the decision of the Tribunal, would have been required to comply with the procedural safeguards identified by Rule 50(5). Sub-rule (e) does not appear in the 2013 Rules. I do not accept that this is to be taken as a rejection of the proposal that a wider power was necessary. The wider power is contained in Rule 50(1) and proposed Rule 55(2)(e) must have been deemed unnecessary.
- It seems to me that as a matter of practice, Tribunals should comply with the safeguards identified in Rule 50(5) when making orders having similar but wider effect than RROs under Rule 50(3)(d). Tribunals should also be aware of the sanctions that flow from breach. In the case of RROs made under sections 11 and 12 and Rule 50(3)(d) it is a criminal offence to publish identifying matter in contravention of such an order. In the case of non section 11/12 RROs, contravention of such an order can lead to committal proceedings for contempt (see Peach Grey & Co v Sommers  ICR 549 where the availability of committal proceedings arising out of Employment Tribunal proceedings was confirmed).
- Provided an order is considered necessary in the interests of justice or necessary to protect Convention rights, and the Tribunal considering whether to make an order gives full weight to the principle of open justice and the right to freedom of expression, Rule 50(1) enables an order to be made in circumstances that do not fall strictly within sections 11 and 12 ETA 1996, or that extends beyond the end of the proceedings (whether they otherwise fall within sections 11 and 12 or not). This is not to create a power in order to give effect to the Article 8 rights of parties to Tribunal proceedings; but is a question of the proper construction of an express power given in Rule 50(1) of the 2013 Rules.
- Like the Employment Judge I recognise that reporting restrictions which last indefinitely are a much more substantial restriction on freedom of expression than restrictions imposed for a limited period. Permanent protection may or may not be appropriate in a given case, but where it is sought it requires particularly careful consideration. It is likely to be a rare case where the Article 8 rights at stake are so strong that it is necessary to grant indefinite restrictions as the means of striking the balance between Article 8 rights on the one hand and the principle of open justice and rights of freedom of expression on the other. F v G was such a case, but such cases are likely to be the exception and not the rule. There is also the practical problem that should be recognised, referred to by Moore-Bick LJ in R (JC and another) v Central Criminal Court  1 WLR 2865 at : an indefinite restriction on press reporting places the onus on the media to be alert to the possibility of a restriction in relation to reporting of litigation that took place much earlier and to ascertain whether such a restriction is in place, with all the attendant practical difficulties that may entail. The fact that RROs under sections 11 and 12 ETA 1996 are supported by penal sanctions must also be recognised in this context.
- So far as concerns the vires of the Rule 50(1) power, the 2013 Rules are not made under the authority of the Human Rights Act, but under the authority of a number of sections of the ETA 1996 including section 7(1). This provides:
"The Secretary of State may by regulations ("[employment tribunal] procedure regulations") make such provision as appears to him to be necessary or expedient with respect to proceedings before [employment tribunals]."
This power to make regulations considered "necessary or expedient with respect to proceedings" in the Employment Tribunal is wide and includes the regulation of any aspect of such proceedings. That necessarily includes making orders "with a view to preventing or restricting the public disclosure of any aspect of those proceedings" under Rule 50(1). In my judgment, whether read alone or construed with section 3 Human Rights Act as a power that must be exercised compatibly with Convention rights, section 7(1) ETA 1996 provides the vires for the wider privacy order making power contained in Rule 50(1), notwithstanding the more specific, restrictive powers in sections 11 and 12 ETA 1996.
- Accordingly Employment Judge Auerbach was correct to conclude that the Employment Tribunal now has powers to make RROs which go beyond the restricted scope of section 11 and Rule 50(3)(d). He was also correct to conclude that section 11(1)(b), in providing that RROs could have effect (if not revoked earlier) until the promulgation of the decision of the Tribunal, did not require RROs to lapse in proceedings which end as a result of the claim being withdrawn (paragraph 61). The words "until the promulgation of the decision of the tribunal" mean just that, and do not include other, prior ways in which the proceedings have come to an end. If that had been intended it would have been easy to say so. No vires problem arises.
- Mr Millar makes the point that even if his primary submissions are rejected, Article 8 certainly does not require that RROs last beyond the end of proceedings where the Employment Tribunal has not explicitly ordered that they should do so: see F v G at . That is true. However, while a proportionality challenge may arise in relation to such an order, I do not consider that the effect of a failure to make explicit provision of this kind means that an RRO should be treated as having lapsed automatically when the claim is withdrawn. In any event, the Privacy Orders were ordered to last until further order of the Employment Tribunal or Employment Appeal Tribunal so no issue arises.
- For all these reasons the cross-appeal fails, and is dismissed.
- The Employment Judge dealt with the balancing exercise at paragraphs 65 to 90 of his judgment. He identified the fundamental principle of open justice and the Article 8 and 10 Convention rights at stake. Mr Tomlinson makes no criticism of the legal directions he gave himself by reference to the relevant authorities.
- The authorities to which both I and the Employment Judge were referred, including Guardian News and Media Ltd & Ors, HM Treasury v Ahmed & Ors  UKSC 1, A v British Broadcasting Corporation  2 WLR 1243, In re S (A Child)  3 WLR 1129 and Global Torch Ltd v Apex Global Management Ltd  EWCA Civ 819, emphasise the following points of relevance to this appeal:
(i) That the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice;
(ii) Where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, Courts and Tribunals should credit the public with the ability to understand that unproven allegations are no more than that. Where such a case proceeds to judgment, Courts and Tribunals can mitigate the risk of misunderstanding by making clear that they have not adjudicated on the truth or otherwise of the damaging allegation;
(iii) The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the Employment Tribunal proceedings are essentially private and of no public interest accordingly;
(iv) It is an aspect of open justice and freedom of expression more generally that Courts respect not only the substance of ideas and information but also the form in which they are conveyed. Thus as Lord Rodger recognised in Guardian News and Media Ltd:
"Judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on."
- As for the balancing exercise itself, Lord Steyn described the exercise to be conducted in In re S (A Child) at paragraph 17 as follows:
"… What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience, I will call this the ultimate balancing test. …"
- In Guardian News and Media Ltd, in the context of proceedings that had been anonymised with an order made preventing the press from identifying an individual suspected of involvement in terrorism, Lord Rodger emphasised the importance of the facts of the particular case and described the question for the Court as follows:
"51. …. Since "neither article has as such precedence over the other" (In re S (A Child) (Identification: Restrictions on Publication)  1 AC 593, 603, para 17, per Lord Steyn), the weight to be attached to the rival interests under articles 8 and 10 - and so the interest which is to prevail in any competition - will depend on the facts of the particular case. In this connexion it should be borne in mind that – picking up the terminology used in the Von Hannover case - the European Court has suggested that, where the publication concerns a question "of general interest", article 10(2) scarcely leaves any room for restrictions on freedom of expression: Petrina v Romania (application no 78060/01, BAILII:  ECHR 2252), 14 October 2008, para 40 ("l'article 10(2) de la Convention ne laisse guère de place pour des restrictions à la liberté d'expression dans le domaine … des questions d'intérêt général").
52. In the present case M's private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann's formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life."
The Supreme Court held that there was a public interest in identifying M and that the evidence suggesting possible harm to his private and family life if named, was weak. The anonymity orders were therefore discharged.
- Finally before turning to the arguments advanced by Mr Tomlinson, both sides agree that the scope for this Appeal Tribunal to interfere with the Employment Judge's decision depends on a finding that there was an error of principle or that he reached a decision that was plainly wrong or outside the ambit of conclusions reasonably open to him. In AAA v Associated Newspapers Ltd  EWCA Civ 554 the Court of Appeal identified the approach as follows:
"8. It is now clearly established that a balancing exercise between articles 8 and 10 of the European Convention on Human Rights ("the ECHR") conducted by a first instance judge is treated as analogous to the exercise of a discretion. Accordingly, an appellate court should not intervene unless the judge has erred in principle or reached a conclusion which was plainly wrong or outside the ambit of conclusions that a judge could reasonably reach: see, for example, Lord Browne of Madingly v Associated Newspapers Limited  EWCA Civ 295,  QB 103 at para 45. In JIH v News Group Newspapers Ltd  EMLR 15 at para 26, Lord Neuberger MR said: "While [the decision of the lower court] did not involve the exercise of a discretion, it involved a balancing exercise, with which, at least as a matter of general principle, an appellate court should be slow to interfere".
In sensitive privacy cases such as the present, but particularly where there are cogent public interest arguments in play, there is a difficult judgement to be made by the court in balancing the competing rights. The balancing exercise requires a detailed appreciation of the evidence that was before the trial judge. She was in the best position to undertake the balancing exercise and had the advantage denied to this court of seeing and hearing the witnesses and making an assessment of them."
- To that extent, the view I expressed in [Roden v BBC ]() ICR 985 is wrong and not to be followed. The approach in AAA was applied recently by the Court of Appeal in PJS v NGN  EWCA Civ 100 and as Mr Tomlinson emphasises, the Court was prepared to overturn the decision of the first instance Judge if it concluded that the Judge got the balancing exercise wrong.
- Mr Tomlinson identifies five distinct criticisms of the Employment Judge's reasoning, said individually or cumulatively to vitiate his conclusion that the RRO should not continue in force. First, the Judge wrongly treated as a central consideration, the fact that the RRO was made only to hold the ring pending an appeal. That was irrelevant. There had been a very material change of circumstances since the earlier refusals, when the proceedings were compromised with all parties wanting confidentiality maintained, and the Judge should not have placed any weight, still less substantial weight on those irrelevant considerations. Secondly, the Judge gave excessive weight to the principle of open justice, which had no application in the circumstances of this case; or alternatively this principle had little application and he gave excessive weight to it without providing any proper explanation as to the weight he gave to it. Thirdly, the Judge failed properly to consider the effect of discharge of the RRO on the Article 8 rights of Mr Fallows and of Sir Elton John's family, particularly his spouse and children. Fourthly, the Judge failed to engage with the question whether NGN is in lawful possession of information about the proceedings or has unlawfully obtained documents, intending to publish information contained within them. In the absence of information from NGN as to the nature or source of the material/information it intends to publish, and given that the Appellants have confirmed that they have provided no documents to NGN, the Employment Judge should have inferred that the information was improperly obtained and should have treated this as a factor favouring the maintenance of the RRO. Fifthly, the Employment Judge failed to give sufficient weight to the public interest in settlement of disputes as a factor that should have weighed heavily in the balance in favour of continuing the RRO.
- The complaint that the Judge gave weight erroneously to the circumstances in which the RRO was originally made is said to be demonstrated by his reference to his earlier refusals to make an RRO (other than simply to hold the ring pending appeal) as "a central consideration": see paragraph 73. I do not accept that this was an irrelevant consideration and it is clear from the passages in the judgment that follow, that the Judge did not regard this consideration as excluding in any sense the material change in circumstances caused by the settlement and the fact that the claims would not proceed to a hearing. Nor was his mind closed in any sense to the fact that there had been a settlement. Indeed he described the "meaningful start of a trial" as marking "a significant point in terms of what material passes, or is deemed to pass into the public domain" so that "parties who choose to settle their litigation before a trial has begun have legitimate expectations that this will preserve a measure of confidentiality about the subject matter of the litigation that would otherwise in due course be lost". The Judge expressly accepted that the existence of such a legitimate expectation in the context of a settlement was to be weighed in the balance: see paragraph 87.
- The question for the Employment Judge at whatever stage the proceedings had reached was whether there was a sufficient public interest in maintaining the open justice principle and rights to freedom of expression to justify the resulting curtailment of the Appellants' rights to private and family life under Article 8. In answering that question at earlier stages the Judge will have conducted the "ultimate balancing test" referred to by Lord Steyn in In Re S by reference to "an intense focus on the comparative importance of the specific rights being claimed in the individual case", taking account of "the justifications for interfering with or restricting each right", and applying the proportionality test to each. Unlike this Appeal Tribunal, the Judge was provided with the pleadings setting out the nature and extent of the sexual misconduct allegations being made and their context. He conducted the Preliminary Hearings and was privy to the arguments advanced by Mr Fallows on the one hand (who was prepared to litigate these allegations in a public forum) and the Respondents to the underlying claim on the other. His consistent conclusion, in light of all the material available to him, was that no privacy order was justified by reference to the competing interference with Article 8 rights engaged by publication of those allegations and the balance lay in favour of open reporting without restrictions. Provided that the Judge adequately recognised the changed circumstances (resulting from the settlement) when he came to conduct the balancing test in March 2016, it is inevitable that his earlier conclusions would be relevant, and that they were not redundant as Mr Tomlinson has suggested.
- It seems to me clear that Employment Judge Auerbach did assess the competing considerations in light of the changed circumstances at the date of the March 2016 hearing. He accurately summarised Mr Tomlinson's submission that the fact that the case had settled pre-trial was of crucial importance and that the Appellants' legitimate expectations in a confidential settlement would be thwarted by unrestricted publication: see paragraphs 70 and 71. At paragraphs 85 to 89 he accepted the importance of promoting voluntary settlements of litigation, and as referred to above, the existence of a legitimate expectation that a settlement of litigation would preserve a measure of confidentiality about the subject matter of the litigation that would otherwise be lost. He expressly accepted that the existence of such a legitimate expectation fell to be weighed in the balance and that to fail to do so would be likely to undermine the promotion of settlements in the future. Accordingly, having recognised the changed circumstances in which the balancing test was to be conducted, the Employment Judge was amply entitled to have regard to the conclusions he had reached on successive occasions on which he had been invited to balance the competing rights as an important and relevant consideration.
- Like the Employment Judge, I do not accept Mr Tomlinson's second point, that the principle of open justice can have no application to this case in light of the settlement and the fact that all earlier hearings had been Preliminary Hearings in private and none of the documents in the case were (or ought to have been) on the public record.
- The importance of the common law principle of open justice was emphasised and explained in Global Torch (at paragraphs 13 and 14). Reference was made by Maurice Kay LJ to R v Legal Aid Board, ex parte Kaim Todner  QB 966 at 977 and Lord Woolf MR's holding that the object of securing that justice is administered impartially, fairly and in a way that maintains public confidence is put in jeopardy if secrecy is ordered. Lord Woolf identified the ends served by open justice as follows:
"… It is necessary because the public nature of the proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely…Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it."
- The fact that Parliament has recognised certain exceptions to the principle that hearings are conducted in public which mean that those ends (or at least some of them) are not achieved, for example, where the default position is that a hearing is held in private (see for example, Rule 56 of the 2013 Rules dealing with Preliminary Hearings) does not mean that the principle of open justice does not apply. Rather, the exception is based on Parliament's assessment of where the balance lies between open justice on the one hand and the need to administer justice in the most appropriate way possible in certain types of hearing on the other. In other words, it reflects Parliament's view as to where the balance lies in relation to the relevant competing rights. Preliminary Hearings dealing with case management issues are generally of little or no interest to anyone other than the parties themselves, but that is not always the case. The mere fact that a hearing is held in private does not mean that there is no need to justify any additional privacy restriction. The principle of open justice requires that any restriction on public access is the least interference that can be imposed consistently with the protection of competing rights.
- Equally I agree with Mr Millar that Article 10 rights are also in play. The ends served by the principle of open justice are also served by the ability of the press to report on other aspects of litigation including its conduct, the tactics adopted by litigants and the fact of a settlement. This was described in Sunday Times v United Kingdom [1979-80] 2 EHRR 245 at :
"…. the courts cannot operate in a vacuum. Whilst they are the forum for the settlement of disputes, this does not mean that there can be no prior discussion of disputes elsewhere, be it in specialised journals, in the general press or amongst the public at large. Furthermore, whilst the mass media must not overstep the bounds imposed in the interests of the proper administration of justice, it is incumbent on them to impart information and ideas concerning matters that come before the courts just as in other areas of public interest. Not only did the media have the task of imparting such information and ideas: the public also has a right to receive them
- Accordingly, whether or not a hearing is held in private, any restriction on the ability of the press to comment on the litigation process is itself a derogation from the open justice principle that must be justified as strictly necessary. I do not agree that the fact that the hearings were held in private and documents are not in the public domain means that there is nothing for the open justice principle to bite on. Nor do I accept that there is nothing about the litigation process in this case that is worth reporting. In the absence of an RRO Mr Millar submits that NGN could report the fact that Employment Tribunal proceedings were commenced, by and against whom, that allegations by a former employee of mistreatment and sexual misconduct were made, that the Appellants wished to obtain privacy orders to restrict reporting, that such orders were refused by an Employment Tribunal, the circumstances in which an RRO came to be made to hold the ring pending an appeal only after enquiries were made as to whether an RRO was in place, and that the proceedings were then settled under cover of a temporary RRO in an attempt to prevent publicity before the hearing of the appeal. Mr Tomlinson maintains that these facts can be reported provided that no "identifying matter" is reported.
- Mr Millar identifies two particular features that engage the public interest in this case. First, he submits that this is a story about how the open justice principle has operated in the Employment Tribunal in this case, and that there is a strong public interest in the reporting of the reporting restriction proceedings themselves and the end result. I accept that. I also accept his argument that NGN's inability to identify the names of the Appellants, resulting in a report that does not reveal the identities of the Appellants will be devoid of its human interest, and is unlikely to attract the interest of readers/editors. Secondly, Mr Millar submits that given Sir Elton John is a well-known public figure, his behaviour as an employer against whom allegations of employee mistreatment and sexual misconduct have been made is a legitimate subject for public scrutiny. It seems to me (in agreement with the Employment Judge) that this is a matter of legitimate public interest in this case. The fact that allegations made by Mr Fallows against the Respondents to the underlying proceedings have been withdrawn on settlement does not mean that there can no longer be any public interest in the allegations of wrongdoing. There is no suggestion that Mr Fallows now says the allegations were false from the outset (though that is the position of the Respondents) and the fact that they are not pursued to a hearing does not mean that they are false and to be treated as never having been made.
- These points are strengthened by the fact that the restrictions sought will be permanent; and by the practical implications of an order made on a permanent basis.
- The Employment Judge was accordingly entitled to have regard to the principle of open justice and the Article 10 rights engaged by a permanent RRO in this case and made no error of law in doing so.
- Mr Tomlinson's third submission concerns the asserted failure to address the Article 8 rights of Mr Fallows and Sir Elton John's family. He accepts that in an ordinary case there must be clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make any derogation necessary. In this case however, he submits that since allegations of sexual misconduct necessarily impinge upon Article 8 rights, the details of the allegations are not relevant and no evidence is necessary because there is an obvious inference that harm will be done to all those involved by open reporting. Further, he relies on the way newspapers handle such allegations involving celebrities as giving rise to an inference that harm will be done.
- I do not accept that Employment Judge Auerbach failed to have regard to the Article 8 rights in question. He directed himself by reference to the ultimate balancing test identified by Lord Steyn in In re S and in particular on the need for "an intense focus on the comparative importance of the specific rights being claimed in the individual case" (emphasis added). He well understood the highly fact specific nature of the balancing exercise: see paragraph 94. He made express reference to the Article 8 rights of Sir Elton John and his family at paragraph 79. He was privy to the pleadings and had been involved in the earlier hearings. He knew what the issues in the case were, including the nature of the allegations made in the course of the employment relationship, and the celebrity status of Sir Elton John. He made a fact specific assessment on the information available to him. He was not persuaded that the discharge of the RRO would have serious implications for the family and private life rights of those involved in this case. That was a conclusion to which the Employment Judge was entitled to come, and I am not persuaded that there is any basis on which to interfere with it. Whilst Mr Tomlinson is correct to say that an allegation of sexual misconduct necessarily impinges on Article 8 rights, allegations of sexual misconduct have a broad range of seriousness. This Appeal Tribunal is in a significantly less good position than was the Employment Judge to second-guess the assessment of the harm to private and family life rights that would follow from discharge of the RRO.
- So far as Mr Fallows is concerned, although the Employment Judge made no express reference to his Article 8 rights, this is not a basis for concluding that the Employment Judge gave no consideration to them. He was provided with a short written submission on Mr Fallows' behalf and referred to this at paragraph 25, so must have understood that Mr Fallows was seeking the maintenance of the RRO. But, as Lord Woolf said in Kaim Todner "It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of Court proceedings." The Employment Judge would have been entitled to have regard to the fact that Mr Fallows brought the claim knowingly and in the expectation that his allegations would become public. His position was neutral when the application for privacy orders was first made. Mr Fallows did not attend the March hearing, nor was he represented at it. Accordingly the interference with his rights was inevitably limited, and it is difficult to see how a more detailed consideration of his Article 8 rights would have made any difference in this case.
- It is also right to recognise that the fact of settlement and withdrawal of the claim means that allegations originally made remain untested and have not been adjudicated on. However, the public is to be trusted to understand that unproven allegations made and then withdrawn, are no more than that.
- So far as concerns the fourth criticism of the Employment Judge's approach to the question whether NGN is in lawful or unlawful possession of information about the case, Mr Tomlinson submits that the source of the information which the newspaper intends to publish is a relevant factor in assessing the strength of the competing Convention rights. In the absence of information from NGN as to the nature or source of the material it intends to publish, and in the light of the Appellants' confirmation that they have not provided any information or documents to NGN, the Employment Judge should have inferred that the information had been improperly obtained. He submits that the Employment Judge should have treated this as a factor favouring the maintenance of an RRO and that it is no answer to hold as the Employment Judge did, that the Appellants' remedy (if any) lies in a privacy injunction in the High Court.
- The Employment Judge dealt with this argument at paragraphs 80 to 84. He concluded that there was no sufficient material available to him from which he could draw any specific inference that information had been unlawfully obtained by NGN or that they intended to publish information that had been unlawfully obtained. Further, the Appellants would have recourse to the Courts in respect of any infringement of their privacy rights and it was not the proper function of the Employment Tribunal to grant or maintain an order which would serve no purpose other than to give them a better protection in relation to such matters than they could obtain from the Courts.
- I cannot see any error in that approach. In the absence of evidence I do not consider that the Employment Judge was in a position to draw an inference that information was "improperly obtained". The fact that the Appellants have confirmed through counsel that they did not themselves provide information to NGN does not mean that information has not otherwise been shared through means that do not involve improper conduct on the part of NGN. Evidence would be necessary before any such inference could properly be drawn. The only issue for the Judge was the question whether an RRO should continue in this case, and absent evidence to the contrary, he was entitled to rely on the confirmation given by Mr Millar, that NGN were not seeking to have put into the public domain or shared with them, any matters or documents arising from or about the litigation, its subject matter or conduct, not already in the public domain or in their possession.
- Finally, I do not accept that there was any error of law in the Employment Judge's approach to the public policy of encouraging compromise of litigation. I have already referred to the passages in the judgment dealing with this consideration and acknowledging its existence and the importance of weighing it in the balance. The Employment Judge accepted that where parties choose to settle litigation before a trial has begun, they have a legitimate expectation that this will preserve a measure of confidentiality in the subject matter of the litigation that would otherwise be lost once matters pass into the public domain at a public hearing: see paragraph 87. He accepted expressly that to fail to weigh the existence of such legitimate expectations in the balance would be likely to undermine the promotion of settlements in future.
- I do not accept Mr Tomlinson's contention that the Employment Judge's primary response to this point was that, because NGN was not seeking details of the settlement itself, the parties' legitimate expectations were not defeated and he ignored the parties' legitimate expectations of confidentiality in the subject matter of the litigation being preserved (paragraph 88). The Employment Judge proceeded on the express basis that NGN was not seeking to gain access to information about the subject matter of the litigation such as might have been aired at trial and that discharging the RRO would not entitle them to such access. In the absence of evidence to the contrary, or evidence that NGN had improperly obtained such information, I see no error in that approach.
- There is no presumption in favour of non-reporting of settlements or settled proceedings, nor should there be. While there is a public interest in settlement of litigation which is to be encouraged, it does not outweigh the fundamental principle of open justice. In the circumstances of this case, the Employment Judge was entitled to find that, weighed in the balance against other factors, the existence of such legitimate expectations as the Appellants had was not sufficient to justify a permanent restriction on reporting in this case.
- For all of these reasons I have not been persuaded that there is any basis in the five points of challenge advanced by the Appellants, whether taken individually or together, on which to interfere with Employment Judge Auerbach's conduct of the balancing exercise in this case and the second ground of appeal accordingly fails. The Employment Judge was entitled to revoke the Privacy Orders and made no error of law or principle in doing so. In my judgment, his carefully reasoned decision identified and faithfully applied the correct legal principles to the balancing exercise he so carefully undertook.
- Both the appeal and the cross-appeal are accordingly dismissed. I will deal separately with the consequences of that decision, on receipt of further submissions from counsel.
Published: 19/07/2016 11:47