Privacy vs Open Justice: A Constitutional Balancing Act in Gibraltar

The principle of open justice – that justice is not only done but also seen to be done – is a cornerstone of the common law. It ensures transparency, public confidence and accountability within the justice system. However, in certain types of litigation, particularly cases involving sensitive personal, family or financial matters, the interests of justice may necessitate a departure from this principle.

Recently, Gibraltar’s courts have developed critical jurisprudence on this tension between privacy and open justice. While known for its robust common law foundations, there is a fundamental – and often overlooked – distinction between Gibraltar and the English system: the treatment of privacy in litigation. 

Two recent decisions – AB v Line Trust Corporation Limited and Others; BB v Line Trust Corporation Limited and Others [2022] Gib LR 355 and Mansion & Anor v Mañasco & Anor [2025] GCA 001 – illustrate how Gibraltar’s courts have approached the issue, balancing open justice with privacy in a way that reflects both its common law roots and its distinct constitutional framework. 

A Constitutionally Distinct Approach

In England and Wales, open justice is firmly entrenched in the common law. In Scott v Scott [1913] AC 417, the House of Lords established that private hearings are only permissible where ‘strictly necessary.’ This necessity threshold is reflected in Civil Procedure Rule (CPR) 39.2, which limits privacy to narrowly defined exceptions. 

Gibraltar, while sharing the common law position, operates under a written constitution: the Gibraltar Constitution Order 2006 (the Gibraltar Constitution). Section 8(9) provides that all hearings are to be heard in public ‘except with the agreement of all the parties thereto.’ Furthermore, Section 8(10)(a) permits the courts to exclude the public where it is ‘necessary or expedient’ in the interests of justice, public morality, interlocutory proceedings, the welfare of minors, or the protection of the private lives of persons concerned in the proceedings.

This introduces notable differences from England. First, Gibraltar’s ‘necessary or expedient’ threshold offers a more permissive standard than England’s strict ‘necessity’ test. Second, while party consent does not guarantee privacy, it enables the Gibraltar courts to begin from what Chief Justice Dudley has termed a ‘neutral starting point.’ By contrast, in England, the general rule under CPR 39.2(1) is that a hearing may not be held in private ‘irrespective of the parties’ consent.’ English case law suggests that where parties agree to privacy, the court must be most vigilant (see Spencer v Spencer [2009] EWHC 1529 (Fam) at [44]). Third, Gibraltar’s Constitution expressly refers to interlocutory proceedings and extends protection beyond ‘parties’ to include ‘persons concerned in the proceedings’ – for example, witnesses, beneficiaries, or others named in the evidence.

Privacy in Practice

Gibraltar’s courts have not interpreted these provisions as carte blanche for private proceedings. Instead, they have adopted a principled approach to balancing open justice with privacy.

In AB v Line Trust, Chief Justice Dudley considered whether non-contentious trust restructuring proceedings should be heard in private. Although all parties consented, the Chief Justice held that unanimous agreement did not create an absolute right to privacy but merely displaced the presumption that proceedings should be heard in public. As such, the court adopted a ‘neutral starting point’ and undertook a balancing exercise.

The court ultimately granted a privacy order due to the non-contentious nature of the proceedings, the risk of harm to non-party beneficiaries, and the intricacies of trust administration. These factors were found to ‘militate in favour of the exercise of discretion.’ As Chief Justice Dudley concluded: 

‘I undertake the evaluation by weighing the inherent value of open justice (albeit without the presumption) against the factors which I have summarised… I therefore granted the relief sought, subject to this and the August 2019 judgment being handed down in public in anonymised form, thereby to that limited extent seeking to reconcile privacy and open justice.’

The Court of Appeal has recently upheld this in a 2-1 decision on Tuesday, 15 April 2025 (AB v Line Trust Corporation Limited and Ors [2025] GCA 004). The majority affirmed that consent from all parties does not create a presumption in favour of privacy. Instead, Section 8(9) of the Gibraltar Constitution simply displaces the usual rule of open justice, requiring the court to begin from a ‘neutral starting point.’ In dissent, Sir Patrick Elias, J.A. expressed the contrary view that there is a presumption favouring a private hearing where all parties request it – a position not adopted by the majority. 

In the Mansion case, the issue of privacy arose in a more contentious context. In this case, an interlocutory application sought to introduce allegations of fraud involving individuals who were not parties to the proceedings. The concern was that public disclosure of those allegations – untested at that stage – could cause serious reputational harm. The appellate court found that the order complied with Gibraltar’s Constitutional requirements. Further, Sir Colin Rimer, J.A. confirmed there were specific differences under the Gibraltar Constitution. He noted that Section 8(10)(a) allows for privacy where it is ‘necessary or expedient’ to protect the private lives of non-parties ‘concerned in the proceedings.’ The Court of Appeal concluded that, in this instance, the balance favoured privacy.  

Privacy, Not Secrecy

These decisions demonstrate that Gibraltar’s courts are not abandoning open justice but acknowledging that, in some circumstances, justice allows privacy. This is by no means a foreign concept to litigators. Confidentiality is a longstanding feature of many forms of dispute resolution, not least arbitration, where proceedings are frequently conducted behind closed doors to protect commercial or reputational sensitivities – and without calling into question the legitimacy of the process or open justice. 

In Gibraltar, privacy in litigation is not automatic but attainable, especially when the parties consent. The discretion to order private hearings is exercised judiciously only after careful consideration of the facts, the constitutional framework, and the interests at stake. This means that in cases like AB v Line Trust and Mansion v Mañasco, the Gibraltar courts could allow for privacy measures that might have been more difficult or indeed impossible to attain in England. 

Conclusion

Looking ahead, Gibraltar’s approach will continue to evolve as its courts grapple with increasingly complex, high-value and often sensitive disputes. The flexibility embedded in the Gibraltar Constitution allows the courts to tailor their approach to the realities of modern litigation while upholding the foundational values of open justice. 

In the words of the Chief Justice, ‘This is a wholly novel exercise of discretion and possibly in time case law will develop a principled approach to minimise the risk of arbitrariness.’ That process is well underway – and for practitioners and litigants alike, it is one to watch closely.

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