THE CIVIL JUSTICE SYSTEM DOES NOT COWER IN THE SHADOWS: IT IS DIFFICULT FOR LITIGANTS TO BE ANONYMOUS: NO “PARLIAMENTARY PRIVILEGE” HERE

If you are ever asked the question as to what the similarities are between dancers at Spearmint Rhino and employees of Members of Parliament then there is only one appropriate answer. They have both applied for, and been refused, permission to serve a claim form without disclosing their names and addresses.

“The civil justice system and the principles of open justice cannot be calibrated upon the risk of irrational actions of a handful of people engaging in what would be likely to amount to criminal behaviour. If it did, most litigation in this country would have to be conducted behind closed doors and under a cloak of almost total anonymity. As a democracy, we put our faith and confidence in our belief that people will abide by the law. We deal with those who do not, not by cowering in the shadows, but by taking action against them as and when required.”

SPEARMINT RHINO

In  AAA -v- Rakoff [2019] EWHC 2525 (QB) dancers at Spearmint Rhino were unsuccessful in their attempt to obtain anonymity and non-disclosure of their addresses, the case is discussed here.

WORKING IN PARLIAMENT

In Various Claimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB)Mr Justice Nicklin considered an application made by employees, or former employees, of MPs who brought an action relating to a data breach.  They sought an order that their names and addresses not be disclosed.

THE JUDGMENT

The judgment goes through the relevant criteria in detail.

    1. Orders that a party to a civil claim be anonymised in the proceedings and reporting restrictions prohibiting his/her identification are derogations from the principle of open justice. The principles to be applied are clearly set out in Practice Guidance (Interim Non-Disclosure Orders) (referred to in [28] above) under the heading “Open Justice“:
[9] Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR r 39.2 and Scott -v- Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef -v- Malta (2009) 50 EHRR 920 [75]; Donald -v- Ntuli (Guardian News & Media Ltd intervening) [2011] 1 WLR 294 [50].
[10] Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R -v- Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235Donald -v- Ntuli [52]-[53]. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
[11] The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W [2010] EWHC 2457 (QB) [34].
[12] There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou -v- Coward [2011] EMLR 419 [50]-[54]. Anonymity will only be granted where it is strictly necessary, and then only to that extent.
[13] The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidenceScott -v- Scott [1913] AC 417, 438-439, 463, 477Lord Browne of Madingley -v- Associated Newspapers Ltd [2008] QB 103 [2]-[3]; Secretary of State for the Home Department -v- AP (No.2) [2010] 1 WLR 1652 [7]; Gray -v- W [2010] EWHC 2367 (QB) [6]-[8]; and JIH -v- News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645 [21].
[14] When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled. The proper approach is set out in JIH.
    1. In JIH -v- News Group Newspapers Ltd [21] the Court of Appeal summarised the principles as follows:
(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the article 10 rights of the public at large.
(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.
    1. The authorities make clear, therefore, that derogations from open justice can be justified as necessary on two principal grounds: maintenance of the administration of justice and harm to other legitimate interestsR (Rai) -v- Crown Court at Winchester [2021] EWHC 339 (Admin) [39].
    1. In the first category fall cases – such as claims for breach of confidence – in which, unless some derogation is made from the principles of open justice, the Court would, by its process, effectively destroy that which the claimant is seeking to protect. Depending upon the particular facts, the Court may need either to anonymise the party/parties, or (if the parties are named) withhold the private/confidential information from proceedings in open court and in any public judgment: see discussion in Khan -v- Khan [2018] EWHC 241 (QB) [81]-[93].
    1. Save in that limited category of case, the names of the parties to litigation are important matters that should be available to the public and the media. Any interference with the public nature of court proceedings is to be avoided unless justice requires it: R -v- Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966, 978g. No doubt there will be many litigants in the courts who would prefer that their names, addresses and details of their affairs were not made public in the course of proceedings. In Kaim Todner, Lord Woolf MR explained (p.978):
“It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. 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. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule…
There can however be situations where a party or witness can reasonably require protection. In prosecutions for rape and blackmail, it is well established that the victim can be entitled to protection. Outside the well established cases where anonymity is provided, the reasonableness of the claim for protection is important. Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether the demand is reasonable. There must be some objective foundation for the claim which is being made.”
    1. The same point was made by Lord Sumption in Khuja -v- Times Newspapers Ltd [2019] AC 161:
[29] In most of the recent decisions of this court the question has arisen whether the open justice principle may be satisfied without adversely affecting the claimant’s Convention rights by permitting proceedings in court to be reported but without disclosing his name. The test which has been applied in answering it is whether the public interest served by publishing the facts extended to publishing the name. In practice, where the court is satisfied that there is a real public interest in publication, that interest has generally extended to publication of the name. This is because the anonymised reporting of issues of legitimate public concern are less likely to interest the public and therefore to provoke discussion. As Lord Steyn observed in In re S [2005] 1 AC 593 [34]:

“… from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

“What’s in a name?”, Lord Rodger memorably asked in In re Guardian News and Media Ltd before answering his own question, at [63] … The public interest in the administration of justice may be sufficiently served as far as lawyers are concerned by a discussion which focusses on the issues and ignores the personalities, but ([57]):

“… the target audience of the press is likely to be different and to have a different interest in the proceedings, which will not be satisfied by an anonymised version of the judgment. In the general run of cases there is nothing to stop the press from supplying the more full-blooded account which their readers want”.

cf. In re BBCIn re Attorney General’s Reference (No.3 of 1999) [2010] 1 AC 145 [25]–[26] (Lord Hope of Craighead) and [56], [66] (Lord Brown of Eaton-under-Heywood).

[30] None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged. Thus Lord Reed JSC remarked of the Scottish case Devine -v- Secretary of State for Scotland (unreported) 22 January 1993, in which soldiers who had been deployed to end a prison siege were allowed to give evidence from behind a screen, that “their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure“: A -v- BBC [39]. In other cases, the identity of the person involved may be more central to the point of public interest, but outweighed by the public interest in the administration of justice. This was why publication of the name was prohibited in A -v- BBC. Another example in a rather different context is R (C) -v- Secretary of State for Justice (Media Lawyers Association intervening) [2016] 1 WLR 444, a difficult case involving the disclosure via judicial proceedings of highly personal clinical data concerning psychiatric patients serving sentences of imprisonment, which would have undermined confidential clinical relationships and thereby reduced the efficacy of the system for judicial oversight of the Home Secretary’s decisions.
    1. Where a party to the litigation (or a witness) seeks an anonymity order (and reporting restrictions) on the grounds that identifying him/her will interfere with his/her Convention rights, then the Court will have to assess the engaged rights: see RXG -v- Ministry of Justice [2020] QB 703 [25] and XXX -v- Camden LBC [20]-[21]. Under the CPR, the name and address of a party must be provided in the Claim Form (see [4] above) and, once an Acknowledgement of Service has been filed, the claim has been listed for a hearing or judgment has been entered, the Claim Form will be available for public inspection: CPR 5.4C(1) and (4). In any assessment of the Article 10 right reflected in open justice, the Courts will attach due weight to the default position that, without an anonymity order, the name and address of the party or witness will be available to be reported as part of the proceedings: R (Rai) -v- Crown Court at Winchester [47]-[48].
    1. Media reports of proceedings may have an adverse impact on the rights and interests of others, but, ordinarily “the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public“: Khuja [34(2)].
Submissions
    1. Mr Sammour, on behalf of the Defendant, maintained the neutral stance to the Claimants’ Application that had been adopted by the Defendant’s solicitors in correspondence.
    1. Mr Barnes QC submitted that an order anonymising the Claimants was justified and necessary on the two bases identified in Mr McAleenan’s witness statement.
i) First, without an order anonymising the Claimants, the purpose of bringing the claim to vindicate their rights of confidentiality/privacy and under the Data Protection Act 1998 would be defeated if the information the subject of the proceedings were to come into the public domain.
ii) Second, as employees or former employees of MPs, if their names or addresses were placed into the public domain, this may create a personal safety risk and expose them to the risk of other harm.
    1. In respect of the first point, Mr Barnes QC submitted that the Claimants wish to pursue claims that include a claim for damages based on the distress caused by the loss of autonomy over the information and concern that the breach of confidence/privacy would expose them to a risk of harm. In such circumstances, they should not be exposed to the risk of further harm by being named as Claimants in the proceedings and required to provide their addresses on the Claim Form.
    1. Mr Barnes QC accepted that Mr McAleenan’s witness statement dealt with the alleged threat posed to the Claimants in a very generalised way, but he submitted that the Claimants had adopted a proportionate and pragmatic approach to the Application. If the Court considered that more detailed evidence was required, Mr Barnes QC sought an opportunity to obtain and put forward such evidence.
Decision
    1. I refuse the Claimants’ Application for anonymity (including being excused from the requirement to provide their addresses on the Claim Form) and reporting restrictions that would prevent their identification as Claimants in the action that they intend to bring. Neither of the reasons advanced in support of the application provides a sufficient basis for the grant of this derogation from the principle of open justice. The orders sought are not necessary either properly to maintain the administration of justice or to protect the legitimate interests of the Claimants. Less intrusive methods, that can be adopted in the proceedings, will properly protect those legitimate interests. The evidence in support of the Application is generalised, weak and falls a long way short of being clear and cogent.
    1. In respect of the first ground, that anonymisation is necessary to ensure that the proceedings themselves will not destroy or undermine the rights that the Claimants are seeking to vindicate, I am satisfied that the Court will be able to fashion a procedure by using case management techniques and targeted orders that will properly protect the confidential/private information of each Claimant. The parties will be able to utilise confidential schedules to statements of case and witness statements to the extent that it proves necessary for information in the identified categories to be provided in respect of some or all of the Claimants. In my experience, Courts managing and trying actions in which these issues arise are well used to taking steps to ensure that confidential information is properly protected in the various phases of the litigation.
    1. In some cases, the nature of the claim means that the Court has to anonymise the party because otherwise it will be impossible to explain the case and the issues that the Court has to determine: see Khan -v- Khan [88]-[89]. As the Claimants in this case intend to bring a claim over categories of information that they contend were wrongly published, it should be perfectly possible, using the measures I have identified, for the Claimants to be named, and for the proceedings to take place in open court, whilst at the same time safeguarding any confidential/private information of the Claimants. In short, it is not necessary in this proposed claim for the Claimants to be anonymised legitimately to protect the private/confidential information.
    1. Mr Barnes QC’s argument that, as the Claimants are claiming damages for the upset of loss of autonomy/control of the relevant information, they should be anonymised to spare them further upset or distress caused by bringing the proceedings, is a novel one, but it must be rejected. The implications of such an argument would be potentially far reaching. As most data protection claims include similar claims for damages based on loss of autonomy/control, the argument for anonymity would appear to be available in most if not all of these claims.
    1. In my judgment the proper analysis is as follows. As I have noted, the Court will adopt measures, where justified, properly to protect confidential/private information of the Claimants in the proceedings. To the extent that the Claimants contend that their identification as claimants in the civil claim they intend to bring may cause them additional distress, then they are in no different (or better) position than any other claimant who wishes to pursue a civil claim. If these Claimants succeed in the claims they intend to bring, and are awarded damages for the distress over loss of autonomy/control, then the Court will have granted the Claimants an appropriate remedy for the civil wrong that they have established. That remedy will not be harmed by the Claimants being identified in any reports of the proceedings. As I noted in Khan -v- Khan, in the context of a claim for anonymity in a harassment claim [90]:
“In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court. If a claimant succeeds in a harassment claim and obtains damages and/or an injunction, these fruits are not damaged in any way by publicity of the proceedings.”
With necessary and appropriate safeguards to protect particular confidential/private information, the same will be true in any claim brought by the Claimants.
    1. If the pursuit of a civil claim causes distress or upset to a claimant, the law does not usually provide an additional remedy for that. An exception to that rule is claims for defamation, in which, in some circumstances, the additional upset caused by the litigation can be taken into account in the assessment of damages. A claimant in a personal injury claim is not entitled to any additional damages as a result of being caused upset and suffering as a result having to relive a possibly traumatic injury in the course of litigation or by being publicly identified in the proceedings. Some litigants may face upsetting public hostility and criticism for the claims they bring or the defences they raise. As Lord Sumption noted, this collateral impact “is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public“.
    1. Finally, and as Mr Barnes QC frankly recognised, the evidence put forward by the Claimants falls a long way short of demonstrating a credible risk that if the Claimants were named (and their addresses provided) that they would be exposed to some risk of harm. There might exist a very small number of people whose attitude towards MPs (and those who work for them) is so hostile that they might conceivably be moved to offer some threat of physical violence to them, but this risk is remote. The Claimants have not put forward any credible and specific evidence that one or more Claimants is at particular risk of any such threat. The civil justice system and the principles of open justice cannot be calibrated upon the risk of irrational actions of a handful of people engaging in what would be likely to amount to criminal behaviour. If it did, most litigation in this country would have to be conducted behind closed doors and under a cloak of almost total anonymity. As a democracy, we put our faith and confidence in our belief that people will abide by the law. We deal with those who do not, not by cowering in the shadows, but by taking action against them as and when required.
  1. I will grant orders restricting access by non-parties to documents on the Court File which contain the confidential and private information of the Claimants. The draft Particulars of Claim provided by the Claimants indicates an intention to file certain confidential schedules. If necessary, any Defence that is filed can also utilise such confidential schedules. Beyond that, the Claimants’ Application is refused. As I indicated at the hearing, if the Claimants (or any of them) consider that they can provide clear and cogent evidence that inclusion of their name and/or address on the Claim Form would expose them to a credible threat of physical or other harm, then they can issue a further Application Notice. On the evidence as it stands now, their current application must be refused.