A statistical analysis of the civil High Court judgments published in 2023 showed that, out of 116 cases where one or more parties had been anonymised, 67 (or nearly 60%) did not have a corresponding anonymisation order published on the Judiciary website. While around half of these (34) did make some reference to anonymity or reporting restrictions in the judgment itself, the remainder (33) made no such reference.

That means that nearly 30% of the judgments appeared in anonymised form with no explanation or justification for doing so. Since we also know from other recent research that not all cases are published as they should be, we can assume there may be additional cases where the anonymisation is not publicly recorded. This raises a serious question about the civil courts’ diligence in complying with their oft-publicised commitment to open justice.

What do the rules say? 

In civil cases, under the Civil Procedure Rules (CPR), r 39.2: “(1) The general rule is that a hearing is to be in public” but in exceptional cases the court can order otherwise.

The factors relevant to an order that the hearing, or part of it, be held in private are set out in r 39.2(3) (known as a “privacy order”).

Anonymity is dealt with by r 39.2(4) which provides:

“(4) 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.”

Paragraph (5) then provides:

“(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4),  a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.”

There is also practice guidance, urging courts and parties to comply with these obligations, issued in 2019 by the then Master of the Rolls, Sir Terence Etherton, reported as Practice Guidance (Privacy and Anonymity Orders: Publication) [2019] 1 WLR 3082. This suggests that it is for the party seeking anonymity to prepare and submit to the court a draft order, but that it is for a court officer to send the final order in for publication. (It even provides the correct email address: judicialwebupdates@judiciary.uk)

Anonymity orders are sometimes known as “rule 16” orders because they permit the parties to dispense with the requirement in CPR Part 16 that the full name of each party must be set out in the claim form and other pleadings. They will usually be combined with a reporting restriction order (RRO) and an order, pursuant to CPR r 5.4C, barring access by non-parties to court documents containing the identifying information.

The power to make such orders does not derive solely from the Civil Procedure Rules. They can be made under statute – either section 6 of the Human Rights Act 1998 and/or section 11 of the Contempt of Court Act 1981 – and also under the court’s inherent jurisdiction. However, it is good practice, as evidenced in the wording of those anonymity orders that are published, and as recommended in the various divisional practice guides, to also cite, and publish the anonymity order in accordance with, CPR r 39.2. See, for example,

CPR r 39.2(5) does also permit the order not to be published where the interests of justice so require. Thus, the Commercial Court Guide (July 2023), para F.1.5. provides that arbitration applications and application for freezing injunctions will “generally” or “often” be heard in private, and the template orders provide: “Pursuant to CPR rule 39.2(5), in the interests of justice this order is not to be published on the judiciary website.”

Anonymity orders under CPR r 39.2(4), which are permissive in nature (permitting proceedings to be issued in anonymised form), should be distinguished from interim non-disclosure orders (INDOs) made under CPR r 25 and PD 25A, which are prohibitive in nature (injunctions prohibiting disclosure of information, inter alia, identifying the claimant). They are sometimes known as “gagging orders” or even “super injunctions” (a more extreme version prohibiting disclosure of the very existence of proceedings) and are presumably too confidential even to be published on the Judiciary website, but details are still required to be sent to the Chief Statistician at the Ministry of Justice and published twice a year as part of the Civil Justice Statistics service under CPR PD 40F and Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003. (The accuracy of the published statistics collected under CPR PD 40F is regularly questioned by Inforrm’s Blog, but they  only relate to INDOs, not privacy or anonymity orders under CPR r 39.)

Publication on the Judiciary website

The Judiciary website is the only place where privacy and anonymity orders are officially published under CPR r 29.2(5). They are searchable, but for obvious reasons it will generally be hard to find a particular case if one does not know under what anonymised initials the order has been published. They can be found by the claim number (eg CO/3458/2022) if you have it, and this enables cross-referencing with judgments published elsewhere. But this will not be possible if the judgment has not been published.

A search of the current website using appropriate filters suggests that in 2023 the number of anonymity orders published was 1007. That compares with 668 in 2022, 361 in 2021, 197 in 2020, 54 in 2019, and 0 in 2018. That suggests either that the judiciary are getting steadily more inclined to make, or at any rate to publish, anonymity orders; or that the website is not retaining older orders. I can believe that numbers fell during the pandemic, when litigation in general may have fallen off temporarily; but not that they barely registered before.

CPR r 39.2(5) does not specify for how long the anonymity orders made under rule 39.2(4) should remain on the Judiciary website, once published. Given my prior experience in detecting “link rot” on the site, with other content, including judgment transcripts, being removed and archived after a number of years, I was initially inclined to assume that the website managers might be quietly removing and archiving anonymity orders. An inquiry sent to the official email address judicialwebupdates@judiciary.uk elicited the following response:

“Regarding anonymity orders, we publish them when we get them. We do not delete them from our website or archive them. You may find older anonymity orders on the old Judiciary.uk website: [ARCHIVED CONTENT] Courts and Tribunals Judiciary (nationalarchives.gov.uk)”.

This suggests, much as suspected, that not all anonymity orders are being sent to the website administrators for upload. But the next bit is self-contradictory. If the website pages where they are published have been archived, then the orders themselves have effectively been archived and it makes no sense to say they haven’t.

Following that [ARCHIVED CONTENT] link takes you to old editions of the Judiciary website pages archived by The National Archives (TNA). The content is there, apparently, but cannot be searched. The filters on the page do not work, so although you can select the Judgments section, which runs for 353 web pages, you cannot filter it down by Anonymity Order, nor can you search by case name or number within those pages. However, with patience you could perhaps flip through page by page to look for a particular case. The pages appear in reverse order, ending in September 2022 (the page still displays the notice about the late Queen’s death) and date back to 2012. The fact that the recent content runs up to 2022 may explain why the current website only partially covers that and earlier years. But why preserve only some of the older content on the current site, going back to 2019, and not all of it?

This archiving of old Judiciary website pages of judgments and orders appears to have been done as part of TNA’s general role as digital archivist of official government department websites, rather than anything specifically to do with court records. But under section 8 of the Public Records Act 1958 TNA also has the task of archiving all court records, and that is now (if it wasn’t before) understood to include the judgments given by the court. (How selectively or comprehensively other court documents such as pleadings, affidavits and orders are being archived is another matter of some doubt, but is outside the scope of this research.) In the case of judgments, that has led to the establishment of a public database, Find Case Law, which went live in April 2022 (albeit only in what is described as an “alpha” version) and has now taken over from BAILII the primary task of distributing an official version of all newly published judgments to the press, public and legal professions. Although it struggled initially, the service is now running more smoothly (see ICLR, Publication of listed judgments: towards a new benchmark of digital open justice – Final report).

But Find Case Law does not publish anything other than court and tribunal judgments. The court papers which TNA are sent for archiving are kept elsewhere. Accessing them may be subject to conditions or permissions. Some are of undoubted historical interest, and others may be of use to researchers for other purposes.

Publication of anonymised judgments

Another question concerns the relationship between anonymity orders under CPR r 39.2(4) which are primarily directed towards listing and conduct of the hearing, and the publication of anonymised judgments, which one would expect to be covered under CPR r 40. Neither rule 40 nor any of the practice directions associated with it make any reference to anonymisation of the judgment or its publication (or even handing down via publication on BAILII or The National Archives, as now frequently happens). But even assuming an order under CPR r 39.2(4) continues to apply to the published judgment, you would expect there to be a corresponding anonymity order matching the published anonymised judgment, and that does not appear to be true in many instances.

Although not all cases in which anonymity orders have been made will necessarily result in a published anonymised judgment, it should at least be the case that every published anonymised judgment is matched by a corresponding published anonymity order. Yet this does not appear to be the case. Either the orders were not sent to the Judiciary website as they should have been (hence the emailed response “we publish them when we get them”), or if they were, the relevant page has now been archived (rendering the order constructively inaccessible).

It does not help that the judgment often contains no reference to the anonymity order according to which, presumably, it has been anonymised. There is usually no rubric at the top, as there would be in cases in the Family Division or Family Court – or  certainly should be (not surprisingly there are failures there, too) – when judgments from private hearings are published.

Statistical comparison 

Having noticed that I was frequently unable to find the anonymisation order for a published case, I decided to investigate the matter more thoroughly. By way of methodology, it made sense to start with the published judgments that could be found on Find Case Law, and see how many of the anonymised ones could be matched up with a corresponding anonymisation order.

During 2023 a total of 1866 judgments from the King’s Bench and Chancery Divisions of the High Court were published via Find Case Law. Of these, 116 appeared in anonymised form. They were identified by their use of one or more initials in place of a party name in the title of the judgment.

For each of these anonymised judgments, I then searched on the (current) Judiciary website for a matching anonymisation order. These need not have been published in 2023, in fact many would have been published earlier, before the hearing and therefore the judgment, so I imposed no temporal limitation on the search. Given the cutoff date for the old website, now archived by TNA, it seems odd that so many pre-2022 orders should still be available on the current website. If there was a transitional process, when they updated the website, why did they not preserve all the recent anonymity orders, rather than archiving some and not others?

To search for the order to match the judgment, I used the case number, recorded at the top of the judgment, as the primary search term; and if that failed, I tried the (necessarily anonymised) case name. In all, I was only able to find 67 published anonymisation orders, or 58%, to match the 116 published judgments. That means that at least 42% of cases in which an anonymisation order of some sort must have been made, the order had not been published or, having been published, had been removed or archived out of sight, notwithstanding the intention and expectation of publication under CPR r 39.2(5).

Perhaps more surprising still, only 15 of the 116 anonymised judgments contained any sort of rubric at the top, warning of the existence of a reporting restriction (which an anonymisation order would usually include). A rubric is commonly applied to family judgments published after hearings which, under the current Family Procedure Rules (FPR), are by default held in private (though reporters and legal bloggers may attend them and, subject to the court’s permission or a Transparency Order, report them). Sir James Munby, former President of the Family Division, has written recently in the Financial Remedies Journal about The Use and Misuse of the Rubric in the Family Courts, and I need not expand on them here. Suffice it to say that there appears to be no settled custom or practice of using them in civil courts, where a judgment has been published after either a privacy or anonymisation order has been made under CPR r 39.2.

You would expect, though, that a judge giving judgment in an anonymised case, would make some reference to the fact, in the course of that judgment, even if they did not explain it or give reasons. Yet this only happened in 45 cases out of the 116. In another 3 cases, there was some reference in the heading of the case (eg the words “(Anonymity Order made)” appearing under the party name). But otherwise, the judgments all appeared without any reference in the heading or text to the reasons why, or by what order, they had been anonymised.

Total civil HC judgments published on Find Case Law in 2023 1866
Judgments with anonymised party name(s) 116
Judgments with matching anonymisation orders on Judiciary 67
Judgments containing reference in text to anonymisation 48
Judgments with both anonymisation order and reference in text 34
Judgments with rubric 15

Information in the judgment header

The obvious and logical thing to do would be to include the information about anonymity in the judgment header, if and when any judgment in an anonymised case is published.

I would go further and suggest that any judgment to which a reporting restriction applies should contain a specific rubric to that effect, accurately identifying the restriction and the reason for it, rather than the sort of one-size-fits-all rubric that is, apparently, pasted onto the front of any judgment produced by one of the official transcribers (eg Opus 2 International Limited, or Epiq Europe Ltd).

By one-size-fits all, I mean this:

If this Transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.

This has appeared on judgments in cases involving family law, disciplinary proceedings, a building dispute, damages for clinical negligence, corporate insolvency, and a shareholder dispute, as well as extradition and criminal appeals where the references to sexual offences might conceivably be more relevant.

There is often an additional line which goes:

This transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.

It would make sense for this to appear on all published judgments, in which case a standard rubric alongside would also make sense. But many judgments published by The National Archives do not carry this copyright notice, or the rubric. It is essentially a bit of a free-for-all, with judges using a variety of templates and heading styles.

Why is this a problem? 

If a case is to be reported in the law reports, the ICLR reporter will usually have access to some or all of the court bundle, and/or check with counsel and/or the judge’s clerk about any applicable reporting restrictions. Proofs of all hard copy reports in the Weekly Law Reports and The Law Reports are sent to judges for approval in advance of publication. Likewise the All England reports published by Lexis. But this can be a time consuming process, delaying publication of the report.

For those involved in journalism, it ought to be possible to rely on a judgment published through an official channel such as the Judiciary website or The National Archives. If some cases contain a warning about possible reporting restrictions (even if there aren’t any) and others don’t, how is a reporter to know whether or not they should make further inquiries?

Other ambiguous or misleading matter may also appear on the published and supposedly approved final version of the judgment. For example, one anonymised case had this:

Judgment Approved by the court for handing down (subject to editorial corrections)

If this Judgment has been emailed to you it is to be treated as ‘read-only’.
You should send any suggested amendments as a separate Word document.

Faced with this, would any reporter feel confident writing about the case without first checking with the court? And how are they supposed to do that? That appeared on the judgment titled R (on the application of IXF (a protected party) by his litigation friend OZM) v Chief Constable of West Mercia Police [2023] EWHC 2793 (Admin). Apart from referring to him as a protected party, the judgment contained no other information to explain the reason for anonymising the claimant or his litigation friend. But the rubric appears to contradict itself, suggesting it could be either the embargoed draft sent to counsel in advance of delivery (under CPR PD40E) or a final approved copy.

Although there was guidance during the covid lockdowns, the rules do not seem to have caught up with the practice of remote hand-down. Thus CPR PD40E, on reserved judgments, provides for copies to be emailed to the parties in advance, for the purposes of checking for errors, but not for the purposes of handing down. However, it is now quite common to see published judgments bearing evidence of a standard template anticipating such a procedure:

Approved Judgment

This judgment was handed down remotely at 10am on [date] by circulation to the parties or their representatives by e-mail and by release to the National Archives

(see eg https://www.bailii.org/ew/cases/EWCA/Civ/2022/1169.html).

The reference to BAILII is particularly anachronistic, since from April 2022 all judgments have been required to be sent to The National Archives, as the first part of the notice makes clear. Usually that bit is deleted before delivery, and the actual date filled in. But in a number of cases this has been overlooked.

Where the case has been anonymised, it is all the more important for judges to pay attention to what appears on the face of the judgment.

Information in the judgment itself

Some of the anonymised judgments (48 out of 116) referred to the fact of anonymity in the text of the judgment itself. But the remainder did not. That might be because an earlier judgment in the same case had already referred to the reason for anonymity; or it might be because there was already an anonymity order, published or otherwise, and it was felt unnecessary to explain the point.

But there remains the possibility that some judges are simply anonymising judgments without having made any order – and by implication without first considering and justifying the derogation from open justice.

Even if there is a published order, there remains the challenge for the reader of a published judgment, in having to assemble ancillary information before knowing what restrictions might apply to reporting or discussing the case. This is made all the more difficult when the anonymity order is published (if at all) on a different website (Judiciary, as opposed to Find Case Law) and may not even remain there for very long, before being removed and archived elsewhere.

What can be done?

What these figures tend to show, we’d suggest, is that the rule in CPR r 39.2(5) directing publication of anonymity orders is not consistently being followed; and that even when it is being complied with, the Judiciary website is not maintaining the content on the site for long enough to enable readers of published judgments to ascertain the reasons for anonymisation of the judgment. This could inhibit reporting and discussion of the case in a manner consistent with the public scrutiny that open justice is intended to guarantee.

Secondly, and in any event, the way judgments are published needs to be improved to ensure that accurate information is included in or with the judgment itself, explaining or justifying the anonymisation of party names. This could conveniently take the form of a rubric, in one or more of a choice of standard forms. That in turn might depend on a redesign or better enforcement of the use of judgment templates. Alternatively, the published anonymity order could be appended to the judgment, or judges could develop a practice of including a short explanation when setting out the background to the case in their judgment.

Given the existence of a settled practice of including rubrics in family law judgments published after private hearings, it would make sense to adopt a similar approach, mutatis mutandis, in the civil courts. That is something perhaps for the Civil Procedure Rule Committee to consider, either within the rules themselves, or as a practice direction.

Acknowledgements

Many thanks to Sir James Munby and Hugh Tomlinson KC for reviewing and commenting on my initial draft of this piece.

Paul Magrath is Head of Product Development and Online Content at ICLR and a trustee of the Transparency Project.

This post originally appeared on the Courts and Tribunals Observers’ Network website and is reproduced with permission and thanks.