This represents a departure from the procedure approved by Tugendhat J in CVB v MGN Ltd [2012] EMLR 29 – a procedure followed as recently as July 2022 – under which claimants applying for permission to issue proceedings anonymously did so prior to issuing.
Anonymity applications: overview
Anonymity orders – which permit claimants to use ciphers instead of their names and not to list their own address on a claim form – are derogations from the fundamental principle of open justice and the attendant requirement to state in a claim form the claimant’s name and address.
There are multiple, alternative, bases on which applications for permission to issue proceedings anonymously in the KBD may be made:
- CPR PD 16 specifically refers at paragraph 2.3 to the court’s power to “dispense” with the requirement for the claimant’s name and address in the claim form.
- CPR r.39.2(4) provides that “the court must order that the identity of any person 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 interests of that person”.
- CPR r.5.4C(4) provides that “the court may, on the application of a party or of any person identified in a statement of case (a) order that a non-party may not obtain a copy of a statement of case under paragraph (1); (b) restrict the persons or classes of persons who may obtain a copy of a statement of case; (c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or (d) make such other order as it thinks fit”.
- Finally, the court has inherent jurisdiction to control its own procedure. This inherent jurisdiction must be exercised compatibly with the Convention rights in play, since the court is a public authority for the purposes of section 6 of the Human Rights Act 1998 and therefore under an obligation not to act incompatibly with the Convention rights. This requires both (i) that the court takes steps to ensure that it does not violate Convention rights in its own judgments and orders and (ii) also that it fulfils positive obligations to secure respect for private life by third parties, including by making anonymity orders where necessary.
In CVB v MGN Ltd Tugenedhat J made the following observations about the nature of anonymity orders:
- First, anonymity orders are permissive rather than prohibitory [47].
- Secondly, they do not amount to relief granted “against” the defendant or anyone else and accordingly there is no requirement to give notice to an intended defendant or anyone else of an application for anonymity [49] to [50].
- Finally, any person affected by an anonymity order made without notice under CPR Part 16 can apply to discharge the order at any time. In this way, they are afforded an effective means to enforce their rights under Article 10 of the European Convention on Human Rights [53].
In light of the fact that anonymity orders are permissive not prohibitory (i.e. they do not in themselves prohibit the publication of the identity of the claimant) these orders are sometimes combined with reporting restriction orders pursuant to CPR r.39.2(4) (which provides a basis for both permissive anonymity orders and reporting restriction orders), and/or section 11 of the Contempt of Court Act 1981. Indeed, Nicklin J noted in Lupu v Rakoff [2020] EMLR 6 that applications for anonymity orders often
“have two distinct parts: (1) an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 16.2 (e.g. naming the claimant as ‘XPZ’) (“a CPR 16 Order”); and (2) a reporting restriction order prohibiting identification of the anonymised party (“the Reporting Restriction Order”) [21]”.
The model order in the Practice Guidance: Interim Non-Disclosure Orders [pdf], which contains both of these elements, reflects this observation.
Since 2019, orders made under CPR 39.2(4) are published on the website of the Judiciary of England and Wales pursuant to CPR 39.2(5) and practice guidance issued by the Master of the Rolls.
The procedure approved in CVB v MGN Ltd
The procedure for applying for anonymity orders under CPR Part 16 – as approved in CVB v MGN Ltd – was one in which a would-be-claimant bringing proceedings in the High Court would make a pre-action, without notice application to a Master.
That procedure has been followed consistently in the KBD since CVB v MGN Ltd, as recently as July 2022. Indeed, the claimants in Lupu v Rakoff were criticised for failing to make their application for anonymity prior to issuing the claim form (though this did not in itself form the basis of the court’s decision to reject the anonymity applications) [20].
The procedure stipulated in the King’s Bench Guide 2022
The King’s Bench Guide does not change the substantive law governing anonymity applications in the KBD, but paragraph 4.11 stipulates that they should now be made “on issue”:
Applications can be made on issue for the claim form to be issued without the claimant and/or the defendant being identified. Applications should usually be made to a master. The application for anonymity should be made at the same time as issuing the claim form and not before. The file will be made private until the application is dealt with.
This requirement to apply for permission to issue proceedings anonymously “on issue” represents a departure from the procedure approved in CVB v MGN Ltd. It is unclear why paragraph 4.11 of the King’s Bench Guide brings about this change to the timing of the procedure in the KBD. But it means that a would-be-claimant who files a pre-action application for anonymity in accordance with the procedure established in CVB v MGN Ltd is likely to find their filing (but not the application itself) rejected, with an instruction to re-file the application with a claim form.
Where they seek permission to issue proceedings anonymously, would-be-claimants in the KBD should file claim forms both with the parties’ details and in the appropriate anonymised form in accordance with paragraphs 3.37 to 3.40 of the King’s Bench Guide, which provides as follows:
3.37 In cases where anonymity orders are made (or sought) documents are required to be filed both with the parties’ details and in the appropriate anonymised form. If the documents are being filed other than as part of an application, or they are being filed as part of an application but do not fall within the categories of documents listed under “add another”, they should be field using the “add associated filing” process. The “confidential” checkbox should be ticked for the unredacted version. The reason for the confidentiality request must be specified in the “documents comments” section. If an order has been made, the date of the order should be given and a copy of the order attached using “add another” document.
3.38 The publicly searchable part of the CE file will then show the anonymised filings but not the original non-anonymised filings. Anonymity Orders for cases on CE file should no longer provide for the non-anonymised version to be placed on the Court file in a sealed envelope marked “not to be opened without the permission of a Master or High Court Judge” but instead that it should be “placed on the Court file and marked “confidential: not to be opened without the permission of a Master or High Court Judge””.
3.39 If a confidential document or schedule is to be filed, the “confidential” checkbox should be ticked and the reason for the confidentiality request must be specified in the “documents comments” section. If an order has been made, the date of the order should be given and a copy of the order attached using “add another” document.
3.40 Documents marked “confidential” cannot be seen by non-parties or by other parties to the case.
Radha Bhatt is a member of the Matrix Chambers Media and Information Law practice group.