Chief justice: Open justice applies to trust cases but is not absolute

 Common law has held for a long time that court proceedings should be held in public. The mere desire to keep private affairs out of the public eye, for example in trust proceedings, is not deemed reason enough to hold a hearing “in camera” – in the privacy of the judge’s chambers.   

Courts have accepted the obligation “to observe and apply the principle of open justice” but “the right of the public to witness the administration of justice is not absolute,” Chief Justice Anthony Smellie said in a speech delivered to the Transcontinental Trusts Bermuda Forum 2015 in May.  

The main objective is to administer justice. Only in cases where a hearing in open court would be impractical, for example when the presence of the public would deter a party from seeking relief, private hearings can be ordered based on procedural rules. 

Rules have been made, for instance, in matrimonial cases where hearings can be held in private, especially when they concern the welfare of children.  

It is surprising, the chief justice said, that until the introduction of the civil procedure rules in 1999, no rules existed to regulate the hearing of trust administration proceedings, which courts had sanctioned since the mid-19th century.  

In Cayman, the situation is similar and recent case law has only strengthened the right of the public to open justice based on article 10 of the European Convention of Human Rights. 

Cases in Jersey, Bermuda, Cayman, the Isle of Man, and England and Wales consistently declared that there is no general exception for trust proceedings to be held in camera, and that such a decision has to be taken on a case by case basis, the chief justice noted. 

For instance, when a trustee asks the court for directions about potential or pending litigation against third parties, a so-called Beddoe application, hearings are generally held in private because discussions of the strengths and weaknesses of a case could adversely impact the interests of the beneficiaries of a trust.  

A 2014 Isle of Man judgment cited by Chief Justice Smellie stated that “the court should normally only sit in private where it is strictly necessary to secure the proper administration of justice and where privacy considerations override the important principle of open justice.” 

The Royal Court of Jersey, meanwhile, decided that “it is unwise to be dogmatic” about the matter. The chief justice concluded that the guiding principle that emerges from recent case law in offshore jurisdictions is that “the court should adopt a principled, pragmatic and flexible approach” which “in the appropriate case preserv[es] the ability of the court to respect the confidentiality of private trusts and the privacy concerns of settlors and beneficiaries.” 

Ultimately, “…the courts will make appropriate and practical orders for the protection of privacy…, recognizing that the paramount obligation is to ensure that justice is administered properly in all cases,” he said. 

As a result, courts often order that the identities of the parties are protected, even if the actual proceedings were held in open court. In a Bermuda case, this was done by publishing a written judgment that kept the identity of the parties anonymous and dealt only with the legal analysis. Detailed findings and sensitive, private matters for the trust and beneficiaries were given only to the parties in a confidential appendix. 

In this context, Bermuda Chief Justice Ian Kawaley commented that “It ought to be possible for the court to both be responsive to the interests of public justice and the privacy needs of persons involved in civil litigation, trust cases included, as well.”  

Citing a Cayman judgment, Chief Justice Smellie said applications by trustees for directions are generally heard in private, and judgments are delivered in anonymized form. In another case, “concerns about the security and developmental stability of family members, especially the minor beneficiaries” were sufficient reason to protect the privacy of the parties by producing an anonymized public judgment and a second containing the actual names held under seal on the court file.  

“Current thinking appears to be that contentious trust proceedings – those in which persons’ rights or obligations are to be affected or imposed against their wishes – should be taken in open court, in the glare of public scrutiny and the mere desire of the parties to such proceedings that they be taken in private, will by itself, seldom suffice to justify curtailing the public right of access,” the chief justice said. 

Still, even in contentious trust proceedings, open justice principles are not absolute and the objective must be the proper administration of justice. 

“Even where the right of public access is enshrined in the Constitutions (as in the Cayman Islands), that right is not offended where measures imposed are ‘reasonably necessary’ for the purpose of protecting (among other things) ‘the rights, reputations and freedoms of other persons or the private lives of persons concerned in legal proceedings’,” he concluded. 


Chief Justice Smellie