The question raised in this appeal was whether there can be an OPEN hearing of a claim brought by a person who was employed in a role where, for the sake of argument, it is assumed that the employee dealt with material obtained as a result of lawful interception of communications; that being neither accepted nor denied to be factually correct. A CLOSED hearing is one from which the Claimant and any representative is excluded, but at which the Claimant’s interests may be represented by a Special Advocate. An OPEN hearing is one which the Claimant and any representative is entitled to attend. An OPEN hearing may be held in private or be subject to other exceptions to the open justice principle where justified. OPEN and CLOSED are terms specific to national security cases and do not mean the same thing as hearings that are held in public or private.

The EAT concluded that management of the proceedings will be for the ET, which will be best placed to ensure that any orders necessary for the protection of national security are in place, that they are kept under regular review and if, as disclosure takes place, witness evidence is exchanged and the hearings proceed, there is evidence about particular interception-related conduct, that Section 56 IPA is applied.