The adage that 'justice must not only be done, but must also be seen to be done" derives from a criminal case but is often quoted more generally; and the public nature of civil proceedings in Jersey and Guernsey still forms a strong incentive for parties to consider alternative means to resolve disputes in private such as mediation. However, the courts and tribunals are prepared to hold certain types of proceedings in private and issue anonymised judgments where doing so would be just and appropriate. For example, doing so is established practice in family law cases, where there is a need to protect the identity of children; and, for similar reasons, in cases concerning trusts or foundations.
Two recent Jersey cases have shed some further light on factors which influence when the courts may (or may not) be prepared to anonymise judgments, in order to strike an appropriate balance between open justice and protecting individual privacy.
In Jersey Gems v McMurray 22-Jul-2021, which concerned an appeal to the Jersey Royal Court from the Employment Tribunal, Deputy Bailiff Macrae noted that Jersey is a small jurisdiction and judgments that are publicised are widely accessible, in some cases indefinitely. In this case both parties had acted in good faith, with no adverse findings, and his postscript invited the Tribunals and Courts considering similar cases to give more thought as to whether public interest really demanded identifying both parties:
"I understand that in the early days of the Tribunal's existence it was thought appropriate to publish some or all of the Tribunal's decisions in order to establish a significant body of case law. That has now been achieved and, in indeed, any points of law which arise from a particular decision can, in be reported with the facts, so far as relevant suitably redacted. In the event, as I have said, this is a matter upon which I did not make a ruling but, in my view, requires some further thought."
Decisions by the Tribunal dating back to 2005 are easily accessible online and an employer could, for example, conduct a search against any prospective recruit to avoid those with a litigious record or who have even just given evidence as a witness. The indelible nature of such decisions may therefore deter some parties from pursuing or defending positions which they genuinely believe to be correct. For example, it could explain, in part, the comparatively low number of certain types of case, such as discrimination claims (where the level of compensation available is comparatively modest).
Despite the Deputy Bailiff's invitation to the Tribunal to give more thought to anonymizing its judgments, the Tribunal is likely to take considerable persuasion to do so. Unlike the Royal Court, it lacks inherent jurisdiction and derives its authority purely from statute (article 90 of the Employment (Jersey) Law 2003 and article 4 of the Employment and Discrimination Tribunal (Guernsey) Ordinance 2005) which provides for Tribunal hearings to be in public except in limited circumstances. Similarly, the Tribunal's own procedure provisions ( Employment and Discrimination Tribunal (Procedure) (Jersey) Order 2016) set out the circumstances in which a judgment can be anonymised or redacted (for example where doing so would be in the "interests of justice or in order to protect the Convention rights") but also states when the Tribunal is considering whether to do so it "must give full weight to the principle of open justice and to the Convention right of freedom of expression". The Tribunal is therefore not likely to begin anonymising judgments as a matter of course.
However, the Deputy Bailiff's comments may still encourage it, in particular circumstances, to give more consideration to "any substantial injury to any undertaking or person" (article 30) which could be avoided by anonymizing particular judgments, particularly if open justice could still otherwise be achieved. For example, in circumstances where both sides seek a decision to resolve a preliminary point of law, but do not want to be named and doing so would clearly damage the claimant's (re)employability, then it could be worth trying to persuade the Tribunal to anonymise its judgment with a corresponding order to restrict the press reporting the parties' names.
In another Jersey case last year which was also before Deputy Bailiff Macrae – Hore v Valmorbida 30-Sep-2021– the judgment emphasised the wider public benefit of naming (and effectively shaming) unscrupulous parties. Nine days after the trial - when the judgment was still being prepared – the Court was advised that the parties had reached a settlement and soon afterwards the parties sought a stay of the proceedings negating the need to receive any judgment from the Court at all. However, notwithstanding what the parties had agreed, the Court concluded that it still had discretion to publish the judgment and that doing so would be in the public interest.
The facts of the case against Mr Valmorbida resemble an old episode of Lovejoy or Bergerac. Mr Valmorbida told the Court that he was a well-renowned art dealer but under cross-examination accepted that he used his knowledge and connections in the art world to make various false misrepresentations to lenders in order to secure loans, including falsifying invoices and using paintings he did not own as security. The Court therefore had no doubt that it was in the public interest to expose Mr Valmorbida's dealings, by publication of the judgment notwithstanding that the parties no longer needed it themselves. In particular, public prosecution services, tax authorities and regulators could be assisted by the judgment. Similarly, the Court noted that that Mr Valmorbida still owned companies in Jersey, with service providers looking after his interests, so it was also important that they know of the findings that the Court has made.
Other grounds of public interest for publication, with no connection to any criminal conduct, could include clarification of the law and issues of such general significance. It remains to be seen whether the Courts and Tribunal in Jersey and Guernsey may become more inclined to anonymise employment law cases, and possibly others, in order to protect the privacy of individuals in a way which is common in civilian jurisdictions like France and Italy. Either way, the judgment against Mr Valmorbida serves as a reminder to any parties involved in disputes (whether with such sensational facts or not) that, if they want to avoid a public judgment, any settlement should be reached before the Court has heard full argument of the case - indeed we might therefore find advocates referring their opponents to that judgment as a final warning during any negotiations at the doorsteps to Court!
Originally published 23 February 2022
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