SERVICE OF THE CLAIM FORM ISSUES, ANONYMITY, EXPEDITED TRIALS AND … SPEARMINT RHINO

I have been meaning to write more about anonymity and civil litigation, in particular  orders made under CPR 16.  This issue arose today in a surprising context in AAA -v- Rakoff [2019] EWHC 2525 (QB).   The case raises issues in relation to service of the claim form, anonymity orders and a (refused) application for an expedited trial.

 “Either there is a justification for withholding the Claimants’ names from the public in  these proceedings or there is not. If there is not, the Court should not artificially place obstacles in the way of reporting of the case by adopting measures that simply make it more difficult for the media to report information upon which the Court has placed no restriction.”

THE CASE

Nine of the claimants were dancers and a club known as Spearmint Rhino (the 10th Claimant).  They brought proceedings seeking to restrain the defendant from using footage it had obtained within the clubs. The First Defendant was the Chief Executive of the second defendant “Not Buying It” which campaigns against sexual entertainment venues.   The defendants had arranged for video footage to be taken within the clubs.   In this particular application the dangers sought an order under CPR 16 that their names should be anonymised.

THE CLAIM FORM

The judge commented on the difficulties that had arisen when the application was first heard in July 2019.

The Claim Form
19. An unsealed copy of the Claim Form was provided to the Court at the hearing on 11 July
2019. It was accompanied by Particulars of Claim dated 3 July 2019. It emerged at the
hearing on 30 July 2019 that the Claimants had not been able to obtain a sealed copy of
the Claim Form. CPR 16.2 and Part 16 PD §§2.2 and 2.6 require the address and name
of each Claimant to be stated in the Claim Form. Paragraph 2.5 of the Practice Direction
provides that if the Claim Form does not show a full address, including postcode, “the
Claim Form will be issued but will be retained by the court and will not be served until
the claimant has supplied a full address, including postcode, or the court has dispensed
with the requirement to do so.”
20. This unsatisfactory state of affairs has arisen because the Claimants failed to make an
application for anonymity of the First to Ninth Claimants (and the corresponding
permission to issue the Claim Form without having to include the names of the
Claimant) before seeking to issue the Claim Form. Such applications are routinely made
to the Practice Masters in the Queen’s Bench Division. Although the belated anonymity
application seeks to regularise this position, currently none of the Defendants has been
served with a Claim Form, although they have been provided with an unsealed copy.

PAUSING THERE: A SERIOUS PROCEDURAL POINT

That point about the Court holding onto the claim form if you do not give an address is an important one.   The court issues the claim form and then holds onto it.   There is nothing in the rules that extends the time for service for the period that the court retains the claim form.  All that time eats, relentlessly, into the time for service.

 

ANONYMITY

The judgment contains a detailed review of the case law and principles upon which the courts consider anonymity.

“The Claimants’ position is difficult to understand. They seek only an order permitting
them to issue the Claim Form anonymising their names (and thereafter for initials to be
used in place of their names in the proceedings) but do not seek an order that would
prohibit their real names being published or being identified as claimants in the
proceedings. I struggle to see what the point of such an order would be in this case.
Either there is a justification for withholding the Claimants’ names from the public in
these proceedings or there is not. If there is not, the Court should not artificially place
obstacles in the way of reporting of the case by adopting measures that simply make it
more difficult for the media to report information upon which the Court has placed no
restriction. Here, the Claimants have stated that they do not seek any restriction on
reports of these proceedings that identify that they are the Claimants in the proceedings
and are Spearmint Rhino performers. I have not been required to make a decision
whether an anonymity order would have been justified on this basis.
42. Mr Quinn’s submission was, essentially, that there would be unjustifiable interference
with the Claimants’ Article 8 rights if details from the footage come into the public
domain as a result of the prosecution of the claim on behalf of the individual Claimants.
The short answer to this argument is that it is premature, and it does not justify
anonymity. An anonymity order is neither a necessary nor proportionate response to the
identified concerns. The Defendants have not served a Defence; indeed, until they are
properly served with the Claim Form they are not required to do so. From what I know
about the issues in the case, there is at least the prospect that one or more of the
Defendants will contend that, to the extent that publication of the footage (or description
of its contents) is alleged to be a misuse of private information, then this is justified in
the public interest. Whether the fair disposal of that issue in the proceedings or at any
trial requires any analysis of the detail of what can be seen in the footage remains to be
seen. Whether, for example, there is any dispute between the parties as to whether what
is shown on the footage is (or is arguably) a breach of the Operating Licence of the
relevant SEV, will only be clear once statements of case have been exchanged. If any
issue of what the footage shows, and/or what it amounts to, requires to be resolved at a
trial, then the Court has the ability to adopt measures that will properly respect any
Article 8 issues that arise. In short, the fact that there may be an issue that needs to be
addressed later in the proceedings does not justify an order anonymising the individual
Claimants now.

 

REFUSING THE CLAIMANTS’ APPLICATION FOR AN EXPEDITED TRIAL

The judge was not impressed with the claimants’ application for an expedited trial.

43. I can state my conclusions shortly. Given the undertakings that have been provided by
the Defendants, I do not consider that there is any particular urgency that justifies the
Court in advancing the determination of this case at a trial ahead of other litigants whose
cases are pending before the Court. Given that the Claimants have not yet managed to
serve any of the Defendants with a Claim Form, Mr Quinn is perhaps not in the
strongest position to be seeking an order for expedition. He argued that,
notwithstanding the undertakings given by the First and Second Defendants, there was
a risk of some unauthorised disclosure of the Footage, a risk that would be eliminated
if his clients are successful in getting a final order following trial requiring the footage
to be deleted or delivered up. He was referring, I think, to the fact that the Footage is
held digitally on a computer and that there is always a risk of computers being ‘hacked’.
I reject this risk as fanciful. It is far too remote a risk to justify accelerating the case
management stages of this case and the knock-on effect of delay it would likely
occasion to other pending civil claims. The Claimants regard the undertakings provided
by the First and Second Defendants as sufficient protection on an interim basis. The
case will proceed to a trial (if necessary) through the usual case management phases.
I refuse to order expedition.