Litigants are often concerned that publicity surrounding their cases will have a grave impact on their private lives, even potentially exposing them to physical violence. As a case concerning a disgraced pensions adviser made plain, however, powerful reasons are always needed to displace the open justice principle.
In the context of advice that the man had given to members of a large occupational pension scheme, the Financial Conduct Authority (FCA) issued a decision notice by which it concluded that he lacked honesty and integrity and was therefore unfit to perform functions in relation to any regulated activity. A prohibition order was also made and he was issued with a penalty in excess of £2.2 million.
In referring the matter to the Upper Tribunal (UT), he challenged the penalty together with the breadth of the prohibition order, which he said made it very difficult for him to obtain paid employment. At a preliminary hearing, he contended that the decision notice should not be published prior to the outcome of the reference and that his name should not appear on the UT’s register of pending hearings.
He contended, amongst other things, that such publication would infringe his human rights to life and to respect for his privacy and family life. Publicity relating to the matter would expose him and his family to a serious threat of violent reprisals and would harm his mental health and that of a vulnerable relative.
The UT accepted that he had been the subject of a level of unpleasant comment on social media and had endured a very difficult time. He had never expected the level of criticism that he had encountered. However, one incident apart, he had not been seriously threatened with physical harm. That incident had not resulted in an attack and he could not point to any other violent acts against him.
Rejecting his application, the UT found that he had failed convincingly to show that publication of the decision notice would pose a serious risk of physical harm to him or his family. There was no cogent evidence of a real threat that such publication would have a serious mental health impact or seriously harm his, or anyone else’s, right to a private life.
The UT acknowledged that publication of the decision notice might reignite adverse criticism and result in disagreeable statements about him and possibly members of his family. He did not, however, dispute the core conclusions of the FCA in relation to his honesty and integrity and such a collateral impact was part of the price to be paid for open justice.