Striking the Balance: English Court of Appeal Guidance on Confidentiality and Open Justice in Litigation

The Court of Appeal has provided important guidance on the test for the redaction of confidential information in public judgments. The judgment confirms that the correct test remains a balancing exercise between the fundamental principles of open justice and the interests of justice itself. Although this case arose in the context of a FRAND patent licence dispute, the decision is relevant to how the English courts will handle requests to protect confidential information in all litigation.

The background

Open justice is a fundamental aspect of English law. In most cases, hearings are held in public and judgments are publicly available without redaction. However, some exceptions are permitted by the courts where the interests of justice displace the usual requirement for publicity.

In commercial litigation, parties sometimes request that the courts redact financial or other sensitive information from public judgments, for example where it can be shown that the disclosure could weaken a party’s competitive position. Previous case law has established that such requests require a fact-sensitive balancing exercise, which looks at whether the potential harm caused by disclosure outweighs the very strong presumption in favour of transparency.

Optis Cellular Technology LLC v Apple Retail UK Ltd [2025] EWCA Civ 1263

The High Court decision

This ruling concerned appeals brought by third parties against a High Court decision on the scope of redactions in a judgment on FRAND (Fair Reasonable and Non-Discriminatory) patent licensing. The full judgment contained certain details from the third parties’ patent licences, including financial information concerning lump sums and royalty rates.

At first instance, the High Court held that the Court of Appeal ruling in JC Bamford Excavators v Manitou [2023] EWCA Civ 840 had introduced a “new test” requiring information falling within the definition of a “trade secret” in the Trade Secrets (Enforcement, etc) Regulations 2018 to be redacted from a judgment, without any balancing exercise. Applying this “new test”, the High Court found that certain of the financial information did not fall within the meaning of a “trade secret” and therefore did not require redaction.

The Court of Appeal decision

A number of third parties, whose confidential information would have been disclosed on the basis of the High Court decision, appealed to the Court of Appeal.

In Optis, the Court of Appeal rejected the High Court’s interpretation of JC Bamford. Lord Justice Birss clarified that there is only one test for the redaction of judgments as stated in previous case law (and no “new test” as concluded by the High Court). The relevant question is “whether in the circumstances the principle of open justice gives way to the interest of justice itself”, which is answered through “a weighing of factors in a balancing exercise” that must relate to the specific circumstances of the case. 

Lord Justice Birss also cited his previous judgment in Unwired Planet v Huawei [2017] EWHC 3083 (Pat), which set out the following factors relevant to the balancing exercise:

• the nature of the information itself (e.g. redaction of technical trade secrets and private information about family life may be more readily accepted);
• the effect of the publication of the information (e.g. redactions may be justified if publication would be truly against the public interest or would destroy the subject matter of the proceedings);
• the nature of the proceedings;
• the relationship between the information in issue and the judgment (as well as the proceedings as a whole); and
• the relationship between the person seeking to restrain publication of the information and the proceedings themselves (including the judgment).

The Court of Appeal reiterated that claims to confidentiality and a need for redaction must be justified with cogent evidence focussed on the specifics. Redactions to judgments across the legal system will be “rare indeed” and must be kept to the bare minimum.

Applying the above test to the facts, the Court of Appeal held that:

• publication of the financial details in the third parties’ licences would cause those parties real commercial harm;
• redaction was the only way to avoid that harm; 
• the public could understand how the conclusions in the judgment were reached without sight of the financial details; and
• the redaction was in the interests of justice, albeit this involved a derogation from open justice.

In addition to the above, a further issue before the Court of Appeal concerned the ability of third-parties to request the court to correct factual errors in judgments and orders via a rule known as the “slip rule” (found at CPR 40.12). The Court of Appeal made it clear that the “slip rule” is permissive and does extend to non-parties who are impacted by errors in judgments etc, in the same way it does to parties to the action.

HFW comment

This judgment confirms the longstanding approach to the protection and redaction of confidential information in English litigation. It is helpful to have the Court of Appeal’s clarification that there remains a single test, under which the principle of open justice remains key but will be pragmatically weighed against other factors that may require the interests of justice itself to prevail. 

The decision is also an important reminder of third parties’ rights to make representations as to how their confidential information should be protected in public judgments. However, any party seeking to protect its confidential information must be able to provide “powerful reasons” supported by cogent evidence in order to establish a need for redaction.

The Court of Appeal’s ruling on the ability of third parties to use the “slip rule” to correct errors in judgments will also be welcomed, particularly by non-parties who may be impacted by any such error. The court simply needs to be satisfied that the correction should be made under the rule, regardless of who made the application.