There has long been a tension between the principles of open justice and the desire of parties litigating sensitive matters to keep their identity, parts of the litigation, or even the fact of the litigation itself, private. The default position for almost all civil litigation is that (i) parties are named in proceedings, (ii) non-parties (i.e. members of the public) can obtain copies of core documents from the court, and (iii) hearings are conducted in ‘open’ court (i.e. the public may observe).
One of the chief benefits of open justice is accountability: the public may see justice being done, rather than having to assume that it is (conversely, secret hearings are a feature of a police state). It also provides a level of oversight from a wider audience, meaning injustices or inconsistent decision-making is more easily noticed and rooted out. That oversight often comes in the form of court reporting by the press (both mainstream and legal), and the information should provide certainty as to the state of the law (and how it is being interpreted) and inform litigation strategies for future cases.
The rules setting out the default position in the civil courts are in the Civil Procedure Rules (‘CPR’):-
- CPR r39.2(4) concerns anonymity of parties or witnesses, and says that ”the court must order that the identity shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interest of that party or witness.”
- CPR r5.4C concerns supplying documents to non-parties. It explains that the general rule is that a person who is not party to proceedings may obtain copies of a statement of case and any judgment or order made in public.
- CPR r39.2(1) concerns hearings, and says that the general rule is that “a hearing is to be in public. A hearing may not be held in private, irrespective of the parties’ consent, unless and to the extent that the court decides that it must be held in private…”. It goes on to refer to r39.2(3), which sets out the bases under which a hearing may be held in private.
CPR r39.2(4) will change on 6 April 2022. “party or witness” will be replaced with “person” following Mrs Justice Falk’s observation in Bearly & others v Higgs & Sons (A Firm)  EWHC 1342 (Ch) that the proposed anonymity of Mr A, who was neither a party or witness, was not provided for in the rules.
Going beyond these provisions and keeping the existence of the litigation private entirely requires what is often called a ‘super injunction’, and they are exceedingly rare. Due to their nature, there is no accurate record of how many super injunctions have been granted, but it is not thought to be more than a handful. Judges are normally able to frame judgments in such a way that either the parties are anonymised or sensitive information is placed in a confidential judgment. The term ‘super injunction’ has been used incorrectly by the media, often to describe anonymised injunctions (PJS v News Group Newspapers Limited  UKSC 26). These are injunctions where the identity of the claimant (and sometimes defendant) is protected, but there is no general bar on reporting the proceedings.
Derogations from the principles of open justice are relatively common and even the norm in certain situations. In care proceedings, for example, children are anonymised for their own protection as a matter of course. Similarly, there is a presumption that the identity of children will be anonymised in infant settlement proceedings (JXMX (A Child) v Dartford and Gravesham NHS Trust  EWHC 3956 (QB)). Family proceedings are normally in private and there are strict rules under the Family Procedure Rules regarding the control of documents. In the Court of Protection anonymity orders are frequently used to allow sensitive matters to be argued freely and robustly in court without fear of harm coming to the protected party, a party proposing something that affects the protected party, or a public body opposing it. A headline grabbing example was the case of A Local Authority v C  EWCOP 25, in which Mr Justice Hayden held that a carer may procure a sex worker for a patient who lacked capacity but wished to experience sexual intercourse and intimacy, without committing a criminal offence. The decision was overturned on appeal (Secretary of State for Justice v A Local Authority & Ors (Rev2)  EWCA Civ 1527). The anonymity was never challenged: it is clear why anonymity was required (and it has been granted in other similar cases also). No good could come from knowing which patient (or even which carer) was involved. The identities were secondary to the legal principle under consideration, which would likely not have been brought before the courts without anonymity.
The court also considers whether protection can be obtained without going to the extent of anonymising proceedings by, for example, confining highly sensitive information to a confidential schedule, imposing reporting restrictions, or preventing copies from being obtained by non-parties. If the use of a confidential schedule would render a public judgment meaningless, then the court will anonymity. A Local Authority v C is a good example where a confidential schedule would not be practicable: if the parties were named but the proposition (procuring a sex worker and the legalities of that) were confined to a confidential schedule, the judgment could not address the issues and would make no sense.
In deciding whether anonymity should be granted, the court will consider whether any of the requirements are met, which include whether anonymity is required for national security reasons, so that confidential information can be considered, whether a party not given notice of the hearing would be prejudiced by a public hearing, and, importantly, whether publicity would defeat the object of the hearing.
Below we look at some of the decisions not to grant anonymity (or to remove it), and where the law lies now on anonymity applications.
The claimant, TT, a trans man, gave birth to a son (known in the proceedings as YY) after transitioning and under medical supervision. He issued proceedings to be recognised as YY’s father (or in the alternative, parent), rather than mother, on the birth certificate. TT was granted anonymity at an early stage by way of anonymisation of his name, and reporting restrictions that prevented any publication that would identify him. At the time it was granted, it was uncontroversial.
Later it came to light that TT had participated in the making of a documentary film focussing almost exclusively on his journey to become pregnant as a trans man. In the documentary his name and personal details were included. Four media organisations together made an application to vary the anonymity injunction on the basis that the self-generated publicity concerning TT’s gender reassignment, pregnancy, and the birth of YY meant that it was only the fact that TT was the claimant in the proceedings that was not in the public domain.
The court removed the anonymity for TT, but preserved anonymity for YY.
TYU was named in an employment tribunal judgment following proceedings brought by two former colleagues against ILA. She was named in connection with allegations of serious and criminal misconduct in the course of her employment with ILA, including paying false invoices and theft.
TYU applied as a non-party for her name to be anonymised in the judgment and redaction of other personal information, but not reporting restrictions. The employment tribunal refused, on the basis that as the information revealing her identity had already been disclosed in a public trial, there could be no reasonable expectation of privacy. TYU appealed to the Employment Appeals Tribunal, where the decision was overturned. The judge found that while TYU’s name had already been used in open court, the publication of a judgment online could result in future reputational damage of a different type to that already risked by the hearing. The prospect of future employers searching for TYU by name in recruitment processes and unearthing the judgment was given as a particularly compelling reason to differentiate the two. Anonymity was maintained.
The claimant sued for clinical negligence that caused psychiatric injury following a stillbirth for which the NHS trust admitted responsibility. Given the deeply traumatic and personal nature of the underlying negligence, and the need to disclose her mental health history in the proceedings, the claimant sought an order for anonymity to prevent her name being forever linked with the painful events. No reporting restrictions were sought, and no application was made to have the matter heard in private. The application was simply to replace the claimant’s name with anonymised initials in documents and oral submissions. The defendant trust did not oppose the application, but the Press Association did. Mr Justice Martin Spencer decided that the principles of open justice and the interests of the press overrode the claimant’s desire to keep her name out of press reporting. He remarked that having chosen to bring proceedings, the claimant could not then avoid the consequences of that decision to sue (i.e. publicity).
The parties in this claim are brothers. The claimant is a prominent businessman and investor, with a significant interest in Spotify. In a podcast interview he discussed his own criminal conduct 25 years previously and made allegations that his father used to beat him. The defendant began sending threatening emails to the claimant and to various individuals at Spotify. The claimant sued in harassment and obtained an anonymity order from a Master. The claimant also applied for an injunction.
Mr Justice Nicklin heard (and refused) the application for an injunction. He then turned to the anonymity order, lifting it, and giving three reasons:-
- this was a harassment claim, but not a ‘blackmail harassment’ claim: the only threat to publish information was a threat to publish information already published by the claimant himself;
- the claimant has to accept being identified in proceedings the way any normal litigant will be; and
- less onerous provisions than anonymity can achieve an acceptable outcome. In the hearing no mention had been made of the detail of the claimant’s previous convictions or certain medical information also sought to be privatised.
The outcome was that the parties were named, and the judgment was published freely. Nicklin J also commented that the claimant had himself put the fact of his previous convictions in to the public domain.
In this case A was a former dancer at the Burke & Hare strip club in Edinburgh. After leaving that job to pursue a new career, she submitted a claim to the Employment Tribunal for unpaid holiday pay entitlement. She did not want her name to be published in any judgment: her reasoning being that she would be stigmatised in her personal and future professional life if her work as a stripper became public knowledge. The Employment Tribunal refused to anonymise the judgment, and A appealed.
On appeal, A submitted that she would not pursue the claim if anonymity was not granted: the sum in issue was not large, and would not be worth the stigma she feared would follow. Lord Summers held that anonymity would be granted over the judgment he gave on the appeal, but that the appeal would be refused – i.e. A could not have her name anonymised in any future Employment Tribunal judgment.
In this claim, two defendants ran a campaign against strip clubs. The other two defendants were private investigators instructed to obtain evidence of breaches of license conditions by strip clubs for the purpose of furthering the campaign. They did this by taking covert video recordings inside two strip clubs. There was an intention to publish the videos to generate publicity for the campaign.
The claimants sought an interim injunction restraining disclosure or dissemination of the footage and anonymity for the strippers involved. Prior to the hearing, the defendants gave an undertaking not to publish or disclose the footage without pixellation ahead of the trial. When looking at anonymity, Nicklin J highlighted inconsistencies in the claimants’ reasoning for wanting anonymity, and principally whether they required anonymity to avoid being revealed as strippers, or required anonymity to avoid some details from the secretly recorded footage coming into the public domain. That inconsistency, together with the public protests by some of the strippers at being covertly recorded, defeated their anonymity application. You can read more about this case in our blog, here.
What do these judgments tell us?
There are two very clear principles emerging from these (and some other) judgments.
Firstly, the conduct of the party seeking anonymity is of paramount importance. As we see in TT, Khan and AAA v Rakoff, the courts take a dim view of parties seeking to keep private information they have in fact self-publicised already. TYU, whose anonymity application was refused but allowed on appeal, had no such conduct to overcome.
Secondly, the courts generally factor in that if a party chooses to litigate, they do so knowing their name and the proceedings will be a matter of public record. In Khan v Khan, AAA v Rakoff, and Zeromska-Smith, decisions were made relying on that principle. A party considering whether to take legal action in circumstances where they would require anonymity should consider carefully whether it is available in their particular circumstances, before issuing a claim.
This second principle will not sit well with many people, especially in the cases of Zeromska-Smith and A v Burke & Hare. The Zeromskova-Smith decision was very surprising, not least because the anonymity of the claimant would have changed very little about the judgment or how it could be reported. Furthermore, the claimant argued that her two surviving children would automatically be identifiable if she was named, and their rights should be considered. There is force in that argument: children are generally protected by the court even where only identifiable because of the identity of the parent litigant (for example, the balancing exercise undertaken in ETK v News Group Newspapers  EWCA Civ 439 where anonymity was preserved and the impact on the applicant’s children was a factor weighed in that decision). The difference in approach in these two cases is rather surprising. In ETK the children were teenagers and were protected from the public outing of their father’s extramarital affair and the unwanted attention that would have come with that. In Zeromska-Smith, the children were much younger (3 and 6 years old), and were not protected from having their family name forever digitally linked to a painful episode in their mother’s life. It is doubtful that the children knew about their parents’ earlier loss at this time, and press reports may well come to their attention as they get older.
In A v Burke & Hare, the decision also opens up workers to exploitation by unscrupulous bosses. There is a risk that employers in industries where employees may be stigmatised if publicly revealed as such will not be willing to use the Employment Tribunal to enforce their rights if they are not able to do so anonymously.
Where does that leave anonymity in civil proceedings?
In some types of cases, anonymity is generally still expected. In privacy injunction applications, it remains the case that very often the publication of the fact of the application being made will defeat the purpose of the application. In Khan, Nicklin J specifically pointed out in his decision making that “this is not a privacy claim”. Nicklin J also distinguished ‘blackmail harassment’ cases, where the object of the litigation process is to avoid the threats of blackmail, which are instead immediately realised if they are published in a judgment or discussed in open court.
Zeromska-Smith is more complicated. It is an odd decision that has sparked much debate and criticism online. It is difficult to see how the addition of a name to those proceedings adds anything to the principles of open justice. While it would not be safe to ignore the judgment and the risk of similar judgments in the future, it is an outlier: a strict (or perhaps harsh) interpretation of the rules, and certainly a decision lacking in compassion for the victim of a very serious and harmful episode of medical negligence.
Nicklin J’s judgment in Khan also points to a clear reluctance to allow what might be perceived as defamation claims to be ‘dressed up’ as blackmail harassment claims to obtain anonymity (or injunctive relief). It is not only the presentation of the case, but the actual crux of the matter that will determine whether anonymity is appropriate and likely to be obtained. Where a straightforward threat to publish private information is made, it remains likely that an anonymity application will have good prospects of success. On the contrary, where a threat to publish false information as if it was private information is made, the court may be less receptive to anonymising proceedings.
And finally, how effective is an order for anonymity?
Where a party is relatively unknown, an order for anonymity/reporting restrictions is normally very effective. Where a party is well-known, the likely effectiveness can be harder to predict. The press – which naturally dislikes any restriction on its ability to report information – will often challenge such orders. Moreover, they may seek to create a news story about the anonymisation itself, with headlines berating ‘secret courts’ and ‘super injunctions’. In the past, virtuous politicians have taken this bait and misused parliamentary privilege to ‘out’ litigants who have obtained anonymised injunctions. As discussed in our blog here, this approach is wrong as it undermines the courts and rule of law (the courts already having undertaken a careful balancing exercise to determine whether anonymisation is justified in any particular case).
Thus, the decision to seek an anonymised injunction (or even litigate) can be risky and counterproductive, bringing more attention to the underlying dispute that it would have otherwise received. This is known as the Streisand effect. A stark example of this was PJS (see our blogs here and here). The story became so big that foreign media outlets and scores of social media users published the identity of the anonymised parties, prompting an unsuccessful application to discharge the anonymity order on the basis it was futile.
This post originally appeared on the Brett Wilson Media and Communications Law Blog and is reproduced with permission and thanks