REVEALING THE TRUE IDENTITY OF A WITNESS IN CIVIL PROCEEDINGS: APPLICATION FOR ANONYMITY SCUTTLED
In the judgment today in Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors  EWHC 2929 (Comm) Mr Justice Teare allowed an application by the defendants that the true identity of a witness be disclosed. The witness had already received threats so it was clear that those likely to threaten the witness already knew their identity. There is a helpful review of the relevant principles in relation to anonymous witnesses.
The defendants are defending a claim under an insurance policy following the loss of a ship. The ship sank after a fire, the defendant’s case that this was done with the connivance of the owner. (Interestingly the claim by the ship owner has been struck out for failure to give disclosure, only the action by the vessel’s mortgagee continues). Some of the witnesses had given evidence anonymously. The defendant wanted an order that the true identity of a witness be disclosed. That order was opposed by the witness and the police. The witness in question had already received threats.
“The Defendants, as is usual in a case where scuttling is alleged, rely upon a very considerable body of circumstantial evidence from which they say the court can confidently infer that there has been wilful misconduct by the Owner. In this case, in addition to that evidence, the Defendants propose to rely upon the evidence of two “whistleblowers”. One, presently known as “X”, claims personal knowledge of the alleged conspiracy to scuttle. He has not made a statement but has spoken to a claims investigator who will give hearsay evidence of what X told him. The second whistleblower is Theo Blake.”
THE DEFENDANT’S MOTIVE
7. The reason why the Defendants wish to be able to reveal the true identity of Theo Blake to the Second Claimant is that they do not wish the credibility of Theo Blake to be limited by his anonymity. The reason why the Second Claimant wishes to know his true identity is that knowledge of his identity will assist them in investigating his credibility, for example, in investigating whether statements allegedly made by third parties to him were in fact made by them to him.
THE REASON THE WITNESS WANTED TO RETAIN ANONYMITY
“… Theo Blake says that there is a need to keep his identity secret. He also fears that there will be threats to his mother if his identity is revealed. He relies upon threats to others, in particular threats alleged to have been made to an able seaman, Mr. Marquez, by the Owner and by the chief engineer that he will be killed if he tells what happened on the vessel, and threats to X that he will “end up in the ground”. In addition, Mr. Zavos of Norton Rose (the solicitors acting for the Defendants) understands from Theo Blake and the City of London Police that in Greece on 9/10 January 2018 calls were made to an address known only to Theo Blake’s immediate family and the caller asked for Theo Blake by his real name. Theo Blake believes that people were sent in cars to “grab” him. As a result of these events the police, who deemed these events to be a credible threat to Theo Blake and his family, have removed Theo Blake to this jurisdiction where he resides at a location known only to the police. Theo Blake has seen Mr. Zavos’ statement and has not challenged his account of the events in Greece”
THE LEGAL PRINCIPLES
The applicable legal principles were not in dispute. Ordinarily, the identity of a witness in civil proceedings will be made public as a matter of course (see Scott v Scott  AC 417). The CPR provides for the Court to depart from that general rule. CPR 39.2(4) says: ‘The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.’ The burden in such applications lies with the party seeking non-disclosure (see, for example, R v Legal Aid Board (ex p. Kaim Todner)  QB 966, at , and Yalland v Secretary of State for Exiting the European Union  EWHC 629 (Admin), at ).
The parties based their submissions largely on the Court’s common law jurisdiction to grant anonymity, rather than on the ECHR, but it is clear that the applicable principles are substantially the same whichever jurisdiction is being invoked (see Re Officer L and others  1 WLR 2135, and Adebolajo v Ministry of Justice  EWHC 3568 (QB), at  – ) . As Lord Reed said in Re BBC  UKSC 25, ‘ the common law principle of open justice remains in vigour, even when Convention rights are also applicable’.
In considering an application for non-disclosure of a witness’ identity, the Court applies a two-stage test (see, for example, Kalma v African Minerals Limited  EWHC 120 (QB), at ). These stages are: (1) The threshold test: the grant of anonymity must be necessary , based on a legitimate fear of danger; (2) If that threshold is met, the court will balance the witness’ interest in anonymity with the interests of the parties in a fair trial, together with the public interest in open justice.
As to the first stage of the test, the threshold of ‘necessity’ is ‘formidable’ (see the Kalma case, at  and the Yalland case, at ). The applicant must show some direct link between the witness’ legitimate fear of danger, on the one hand, and the disclosure of the witness’ identity, on the other. If the extent of the witness’ fear, or the prospects of the danger eventuating, would not be ‘materially increased’ by the disclosure of the witness’ identity, then it cannot be said that anonymity is necessary, though of course some other protective measures may be (see Re Officer L , at ). Accordingly, anonymity is unlikely to be necessary if the identity of the witness is already known to, or could easily be discovered by, those who threaten harm (see Cherney v Deripaska  EWHC 1781 (Comm), at  – ).
It is sufficient (at least for the purposes of the common law jurisdiction) that the witness has a genuine subjective fear of danger, even if that fear is not objectively verified (see the Adebolajo case, at , and Libyan Investment Authority v Société Générale  EWHC 550 (QB), at ). If such a genuine fear is proven, it is no response to show that other people in the same position as the applicant would not be similarly fearful (see the Kalma case, at ).
The second stage of the test arises only if the ‘necessity’ threshold has been met. This stage requires a balancing exercise, looking at the interests of the witness, the parties, and the public in all the circumstances of the case. As Lloyd-Jones and Lewis LJJ said in the Yalland case, at : ‘[w] hether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests.’
Amongst the factors that may be considered within this balancing exercise are: (1) what the witness’ evidence is and how central it is to either party’s case; (2) the nature and extent of the danger to which the witness fears he or she is exposed; (3) the extent of the public interest in the case, and whether the public interest would be met by, for example the disclosure of certain descriptive qualities about the witness rather than his or her actual identity (see the Yalland case, at  – ); and (4) whether the witness is, or is associated with, a party to the proceedings, or has been called purely to assist in the resolution of the dispute. As to the last of these, Lord Woolf MR said in the Kaim Todner case, at : ‘ A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation.’ The extent to which these, and other, factors are relevant will depend on the facts of each case.”
THE JUDGE’S DECISION IN FAVOUR OF DISCLOSURE
The judge granted the defendants’ application.