In complex litigations in England, parties must manage two parallel challenges: the legal dispute itself and the public narrative surrounding it. Open justice is a core principle of the English system, most hearings, filings, and judgments are generally public. While this transparency supports accountability, it can also create commercial, reputational, and cross-border risks for high-net-worth (HNW) individuals and family offices.
Privacy tools exist, but they must be used carefully. Courts require necessity, proportionality, and credible evidence. When applied strategically, privacy measures protect value, prevent prejudice, and strengthen the overall litigation strategy. This article outlines the legal foundations for privacy, the strategic considerations, and the practical mechanisms available to parties navigating sensitive disputes.
1. The Legal Framework: Open Justice with Targeted Exceptions
English courts begin with a strong presumption of openness. Hearings are usually public; court lists and judgments are accessible; non-parties may request documents. However, defined exceptions allow the court to limit publicity where justice requires it.
CPR 39.2: Private Hearings
A court may sit in private where publicity would defeat the hearing’s purpose, disclose confidential information or trade secrets, or threaten safety, child welfare, or the proper administration of justice demands it. These exceptions set strict standards: applicants must demonstrate concrete harm, not merely discomfort.
Anonymity and Reporting Restrictions
Courts may anonymise parties or restrict publication under their inherent jurisdiction and s.11 of the Contempt of Court Act 1981, typically to protect vulnerable parties, sensitive financial information, and commercially confidential details.
Access to Documents and Disclosure Controls
Non-parties may seek access under CPR 5.4C, with the Courts balancing openness with confidentiality and fairness. Parties resisting access must demonstrate specifically why inspection would cause harm.
Additionally, under CPR 31.22, disclosed documents cannot be used outside the proceedings which creates further privacy safeguards.
The Human Rights Balance
Judges routinely weigh Article 8 (privacy) against Article 10 (freedom of expression) of the European Convention of Human Rights and ensure that any restriction must be necessary and proportionate and tied to the administration of justice. Notably, the court’s focus is always on the needs of justice, not on protecting reputation.
2. Strategic Considerations: When Privacy Helps and When It Does Not
Privacy is not an end in itself but a tool that must serve a clear purpose.
Protecting the Effectiveness of Urgent Relief
Freezing orders, search orders, and other without-notice applications often justify private hearings, as publicity would otherwise undermine the order by alerting defendants. This remains one of the clearest and least controversial grounds for privacy.
Safeguarding Trade Secrets and Commercial Terms
Disputes involving algorithms, pricing models, shareholder agreements, or sensitive financial structures often require targeted restrictions. In these cases we have seen that the Courts favour limited measures, including private sessions for specific evidence, confidentiality clubs for expert review, rather than blanket secrecy.
Managing Reputational Exposure
Courts do not grant privacy merely to avoid embarrassment. However, where publication risks unjustified harm, affects children or family members, or threatens the fairness of proceedings, measures such as anonymisation and reporting restrictions may be appropriate.
Cross-Border and Regulatory Impacts
Public UK filings can fuel parallel litigation, regulatory scrutiny, or unwanted media coverage abroad. Conversely, a carefully framed public judgment can assist enforcement or reputational recovery abroad. Listed companies and regulated entities must also balance market disclosure obligations, which may require partial transparency even when court orders limit disclosure.
3. Practical Tools: How to Obtain (or Resist) Privacy Orders
Courts favour privacy applications that are narrowly drawn, evidence-based, and proportionate. Success ultimately depends on disciplined preparation and credible justification.
Building a Strong Application
Applicants should:
- Define precisely what material is confidential and why;
- Explain the concrete harm that publicity would cause;
- Demonstrate why narrower steps (redactions, anonymisation) are insufficient;
- Provide a draft order containing review or sunset provisions.
Narrow, well-targeted applications typically face less resistance from the media, opponents, or the court itself.
Anticipating Media Intervention
Accredited journalists have a right to be heard on open-justice issues. Therefore, offering practical compromises, such as temporary restrictions while a freezing order is executed, often resolves concerns without undermining the applicant’s objectives.
Designing Disclosure Protocols
Tiered confidentiality clubs, clear document labelling, and structured redaction protocols promote efficiency and reinforce trust in the process. They also build a record that supports resisting overbroad disclosure demands from non-parties or foreign litigants.
Resisting Overbroad Secrecy
Respondents can challenge unnecessary privacy measures by:
- Requiring precise identification about what is said to be confidential;
- Proposing narrower or time limited alternatives;
- Seeking time limits or requesting staged relaxation of restrictions;
- Highlighting and emphasising public interest factors in transparency.
These steps ensure that restrictions and privacy orders remain tied to the administration of justice rather than strategic concealment.
4. Forum Choice and Cross-Border Realities
In high-value commercial or family wealth disputes, the decision between court proceedings and arbitration often depends on the privacy available.
Litigation
Court proceedings offer the appropriate powers for stronger disclosure, and authoritative judgments, but these come with risks of publicity: media access, non-party document requests, and cross-border reuse of public filings. This is because hearings are generally open and this can amplify reputational or regulatory risk.
Arbitration
Arbitration often provides confidentiality both by default and through agreement. However, any need for court assistance i.e. interim relief, subpoenas, enforcement can reintroduce publicity unless managed with targeted privacy applications. Elements of publicity can therefore return only if it is controlled through targeted privacy orders.
Hybrid Strategies
Sophisticated parties increasingly combine the two forums: conducting the merits in arbitration for better confidentiality while turning to the courts only for essential measures that can only be deployed by the courts. Where court engagement is unavoidable, an evidence-backed application for anonymity or limited privacy can prevent the arbitral process from being undermined.
Privacy in English litigation is neither automatic nor guaranteed. The courts will restrict publicity only when necessary to secure justice and only to the extent proportionate. The most effective privacy strategies rest on and combine clear legal foundations, disciplined evidence, and an understanding of how domestic orders interact with cross-border risks, regulatory obligations, and reputational objectives.
For HNW individuals and complex international disputes, the goal is not secrecy for its own sake but a carefully calibrated approach that preserves value, ensures fairness, and advances the overall litigation strategy. When properly managed, privacy mechanisms allow clients to obtain urgent relief, protect sensitive commercial information, and control the narrative, while respecting the constitutional importance of open justice.
