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Court examines privacy issues in FCA matter

Posted on 28 April 2020

When does the potential disclosure of confidential information to the public mean a private hearing will be held? When is the open justice principle trumped? Mrs Justice Steyn tackled these questions in Greystoke's case with the FCA, to the extent they could be.

The background to this matter was that, on 28 May 2010, the FSA had imposed a prohibition order and a fine on Greystoke which was upheld by the Financial Services and Markets Tribunal. Greystoke had applied on several occasions for the prohibition order to be revoked, but on each occasion he had chosen to withdraw the application before it had been finally determined.

In March 2019, Greystoke filed a claim in Court seeking an order that, amongst other things, the FCA provide him with access to the personal data it held on him. He wanted this so that he could see what personal data the FCA would use in determining whether to revoke his prohibition order. The FCA confirmed that it held his personal data but refused to provide him with access to any of it, relying on Article 12(5)(b) GDPR.

The FCA's witness statement to the Court provided an update regarding Greystoke's most recent revocation application and gave details of the personal data provided to him. The witness statement included reference to a matter which the FCA was under a legal obligation to keep confidential.  As a result, the FCA filed an application notice requesting that the Court should sit in private for any part of the trial during which the confidential material was addressed. Greystoke supported the FCA's application for measures to be put in place to protect the confidential information.

Mrs Justice Steyn concluded that it was strictly necessary for part of the hearing to be held in private and for there to be restrictions on access to the hearing papers.

Her judgment took into account the public interest in upholding a legal obligation to maintain the confidentiality of the information and she ordered that only a small part of the trial would take place in private. She also ordered that a redacted version of the witness statement would be available and that if a non-party applied for access to any of the documents which were subject to the restriction, there would be an oral hearing before any final determination was made.

Comment

Mrs Justice Steyn gave consideration to a number of factors in deciding whether the case should be heard in private, including: the open justice principle, the European Convention on Human Rights and the Civil Procedure Rules.

As readers may well know, the Courts will require significant justification for the open justice principle to be departed from. Where it considers that it is necessary to depart from it, the Court will generally look, as in this case, only to do the very minimum necessary the confidentiality required. What we do not know of course from the case is precisely what the confidential documents were that the Court was trying to protect in this case.

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