Bianca Balmelli comments on the recent Court of Appeal case of Clifford V Millicom Services UK Ltd + Ors on the subject of principles of open justice

In the recent matter of Clifford v Millicom Services UK Ltd and ors [2023] EWCA Civ 50, the Court of Appeal dealt with an appeal and cross-appeal against a decision of the EAT relating to how an employment tribunal should decide an application for an order under rule 50 of the Tribunal Rules 2013.

FACTS

Millicom, a member of a group of companies that provide digital services to emerging markets in Latin America and Africa, employed Mr Clifford as a global investigations manger from 2017. Mr Clifford’s role was to conduct and oversee internal investigations into suspected wrongdoing in the group’s operations. In 2019 Mr Clifford was made redundant. Mr Clifford subsequently brought proceedings against Millicom in the employment tribunal complaining that, amongst other things, he was subjected to detriment and dismissed because of whistleblowing activity. Mr Clifford contended that in September 2017 he had reported to Millicom that his investigations in a foreign country had revealed that staff of a subsidiary had tracked the mobile phones of a customer who was a prominent citizen in that country and disclosed their findings to a government agency there. That individual had later been the victim of a very serious criminal offence. Mr Clifford’s case was that he was treated unfavourably and ultimately dismissed because he investigated and reported this matter.

RULE 50 APPLICATION

Millicom applied to the tribunal for an order under rule 50 of the Tribunal Rules 2013 prohibiting the public disclosure or reporting of the identity of the customer, details of the attack, the alleged link between the attack and Millicom and its staff, or anything that was likely to lead to the identification of those matters. Millicom argued that such an order was necessary in the interests of justice and/or to protect rights under Articles 3, 5, 6 and 8 of the Convention on Human Rights and/or because Mr Clifford owed Millicom a contractual duty of confidence, the breach of which would not be justified in the public interest.

Evidence was filed in support of the aforementioned contentions. Assertions were also made regarding the risks to which Millicom employees would be exposed if the information was made public. Mr Frechette (Vice President Legal – Corporate of the Millicom group) also gave evidence that he would not be willing to be a witness or allow Millicom to defend the proceedings if the Tribunal declined to make the order sought.

TRIBUNAL DECISIONS

The Tribunal dismissed the application on the basis that:

• it had no jurisdiction under Rule 50 to protect the Convention rights of individuals who are outside the jurisdiction of the signatory states;
• Millicom’s case had in any event failed to satisfy the applicable threshold tests as there was no “objective evidence” to support it;
• Mr Frechette’s evidence that he would not be a witness or allow Millicom to defend the proceedings if the order was not granted was legally irrelevant, and there was nothing else that outweighed the open justice principle or the Article 6 right; and
• Mr Clifford’s contractual duty of confidence did not outweigh the open justice principle.

EAT DECISION

Millicom appealed to the EAT, which allowed the appeal in part. The EAT upheld the Tribunal’s conclusions at (i) and (ii) above. However it found that the Tribunal had erred in the following regards:

• by confining its analysis of the case to consideration of rights under Articles 3 (prohibition on inhuman and degrading treatment), 5 (right to liberty and security of person) and 8 (right to respect for private life) without considering whether the evidence justified an order in the interests of justice at common law and/or under Article 6 (right to a fair trial);
• by failing to consider whether Mr Frechette’s subjective fears might be enough to engage Article 8 (right to respect for private life);
• by failing to conduct a proper fact-specific balancing exercise when deciding the application; and
• by failing to address the question of whether it was in the public interest for the duty of confidence to be breached by disclosure within the proceedings.

The EAT consequently order the redetermination of the application under all three limbs of Rule 50, namely, (i) the interests of justice, (ii) to protect a person’s Convention rights and (iii) to protect confidentiality.

COURT OF APPEAL DECISION

Mr Clifford appealed to the Court of Appeal on the grounds that the EAT was wrong:

• to interfere with the Tribunal’s conclusion that Article 8 was not “engaged” so that there was no need for any balancing exercise; and
• to find that the Tribunal should have undertaken any further or different balancing exercise in relation to the confidentiality clause.

Mr Clifford contended that these points would be enough to dispose of the appeal because on a proper analysis everything turned on the question of whether Article 8 was “engaged”; if not, there was no separate “interests of justice” issue to be considered.

Millicom cross-appealed, contending that the EAT should have held that Millicom’ fears, “which the ET accepted were genuinely held”, had such a clear objective basis that the Tribunal was perverse to find otherwise, and were in any event enough to show that Article 8 was “engaged”.

The Court of Appeal dismissed the appeal and concluded that the EAT was right to order the redetermination of whether the derogations sought were necessary: (i) in the interests of justice, and/or (ii) to protect Mr Frechette’s Article 8 rights; and/or (iii) to protect rights of confidence.

The Court of Appeal allowed the cross-appeal having found that the evidence placed before the Tribunal provided a sufficient objective basis for the fears expressed by Millicom and the Tribunal and EAT both erred in finding otherwise.

The Tribunal’s approach to the rule 50 application was analysed and the Court of Appeal noted that, amongst other things, the Tribunal erred:

• in giving no separate consideration to the relevant language of Rule 50 or to the common law open justice principle. These were woven together with issues arising under the Convention and the Tribunal treated the Convention analysis as decisive of the application under the “interests of justice” limb of Rule 50;
• in failing to consider whether Mr Frechette’s subjective fears were enough to engage Article 8;
• in failing to conduct a proper balancing exercise; and
• in failing to consider whether it was in the public interest for Mr Clifford to breach his contractual duty of confidence by disclosing confidential matters, factoring in that such information had been acquired in the course of his employment.

From the Court of Appeal’s judgment it is clear that there are two distinct analyses that need to be undertaken: one in respect of the common law ‘interests of justice’ limb of Rule 50; and the other in respect of the Convention. Importantly, each analysis could yield a different answer.

The ‘interests of justice’ limb of Rule 50 is wide enough to permit derogations from the principle of open justice for safety and security reasons, regardless of whether the individuals in question are within the jurisdiction or participants to the litigation. The following factors therefore need to be weighed when performing the relevant balancing exercise:

• the extent to which the derogation sought would interfere with the principle of open justice;
• the importance to the case of the information which the applicant seeks to protect;
• the role or status within the litigation of the person whose rights or interests are under consideration; and
• the harm which disclosure would cause.