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England and Wales High Court (Queen's Bench Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Various Claimants v Independent Parliamentary Standards Authority [2021] EWHC 2020 (QB) (19 July 2021) URL: http://www.bailii.org/ew/cases/EWHC/QB/2021/2020.html Cite as: [2022] EMLR 4, [2021] EWHC 2020 (QB) |
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
Various Claimants |
Intended Claimants |
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- and - |
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Independent Parliamentary Standards Authority |
Intended Defendant |
____________________
Zac Sammour (instructed by DLA Piper UK LLP) for the Intended Defendants
Hearing date: 16 July 2021
____________________
Crown Copyright ©
The Honourable Mr Justice Nicklin :
The Proposed Claim
The Application for anonymity
i) an order dispensing with the requirements that they be required to provide their names and addresses on the Claim Form;
ii) an order permitting them, instead, to issue the Claim Form using C0001-C0217 for the name of each Claimant and to provide their solicitors' address;
iii) an order under CPR 5.4C and 5.4D "sealing the Court file to prevent access to non-parties" and that the "entire Court file shall be marked as confidential"; and
iv) the imposition of reporting restrictions to prohibit identification of the Claimants.
The Claimants provided a draft of the order they sought and asked that the Application should be dealt with either on paper or at a hearing held in private. Although the Application Notice stated that it was made without notice to the Defendants, helpfully it was in fact served on the Defendant's solicitors on 2 July 2021.
"… We take the view that the application is poorly framed/evidenced and does not on its face set out a coherent basis for departing from the open justice principle, or certainly not to the very wide extent suggested in your evidence and draft order.
Nonetheless, … our client is content to adopt a neutral position on the anonymity provisions in the draft order…
However, we are not remotely satisfied (and nor in our view would a court be) that the remainder of the provisions in your draft order can be regarded as justified in all the circumstances. Quite the contrary, it seems to us that your draft witness statement does not begin to justify the extensively withholding approach on the issue of access to documents on the court file."
The Defendant's solicitors referred to several authorities emphasising the importance that derogations from open justice can be justified only in exceptional circumstances and when they are strictly necessary as measures to secure the proper administration of justice.
"In consequence of the said disclosures of each Claimant's private, confidential and personal information and data and processing and breaches of the 1998 Act and [the First and Second Data Protection Principles] each Claimant has suffered considerable distress, anxiety and upset, damage and a loss of control over his or her private, confidential and personal information and data. Accordingly, each Claimant is entitled to compensation in respect of the resulting effects on him or her of:
(1) Anger, distress, anxiety and upset at his or her loss of privacy and confidentiality in personal information and data and his or her loss of control over the same;
(2) Concerns for his or her personal safety and that of family members;
(3) Concern over possible damage to future career prospects;
(4) Concerns at his or her exposure to fraud and financial loss;
(5) Worry and embarrassment over the disclosure of private, confidential and personal information and data to colleagues, others working for MPs and in the media generally;
(6) Concerns in particular about the loss of control of private, confidential and personal information and data relating to:
a. Employment and employment conditions;
b. Personal finances including salary and rewards."
The draft Particulars of Claim state that "illustrative summaries" of the harm alleged to have been suffered by five Claimants would be provided separately in Confidential Schedules. Copies of these "illustrative summaries" were not included in the exhibit to Mr McAleenan's witness statement.
"It is respectfully understood that there is no requirement, under s.12(2) [Human Rights Act] 1998 or Rule 23 of the CPR, to give notice to anyone else of this application. The claim engages the data protection rights and privacy rights of private individuals who happen to work for MPs and where their information would not otherwise enter the public domain. It is respectfully submitted that it does not engage any wider public interest arguments, nor that the balance of any such arguments would require that to enforce their data protection and privacy rights those individuals are required to be named and the information again made available to third parties to access. The disclosure of the proposed Claimants' identity would, it is respectfully submitted, undermine the purpose of the claim which is to protect the proposed Claimants' personal and private information and personal data, and to seek remedies for them arising from the loss of control and infringement of their data privacy rights. Their information has been exposed and identification of them would place them at further risk of suffering additional harm."
"The proposed Claimants' claims concern the misuse of private and confidential information. The proposed Claimants are, or were at the material time, all employees of MPs. If their names or addresses were to be placed into the public domain, this may create a personal safety risk and expose them to the risk of harm. The purpose of the proceedings, to protect and vindicate the privacy, confidentiality and personal data rights, would be defeated if the information (and more information in the form of addresses) came into the public domain by virtue of these proceedings themselves.
In consideration of the guidance at paragraph 39.2.14 of The White Book, the grant of anonymity is necessary as the proposed Claimants have a genuine and legitimate concern that information has been unlawfully disclosed. It is respectfully considered that steps should reasonably be taken to minimise any further risk to the private and confidential information of the proposed Claimants, and the consequential risks that may create including risks to personal safety. There can also be no public interest in this information becoming known through the Court proceedings, which is why there are safeguards in place to protect and limit the access to information that now forms the subject matter of these proceedings."
No evidence of a risk of specific harm was identified in respect of any individual Claimant by Mr McAleenan.
"It is respectfully submitted that in weighing the principle of open justice, this favours the proposed Claimants. The proceedings will enable the proposed Claimants to enforce their legal rights, and if a proposed claimant was required to disclose their identity, given the nature of the information in question, it would likely interfere with their ability to enforce their legal rights through claim proceedings and interfere with the proper administration of justice.
If the Court is satisfied that publicity would defeat the object of the hearing, which it is respectfully submitted is the purpose of a hearing to determine anonymisation and the sealing of the court file, that hearing must take place in private. I refer the Court to Rules 39.2(3)(a) (c) and (g)…"
Directions that the Anonymity Application be served on the media
"The attached schedule A has all the [Claimants'] names redacted.
In order for us to notify that an application has been made, all the applicants must be named on the application (a separate document with their names may also be attached).
We cannot notify the media without the applicants names."
"We draw your attention to the terms of the Order of Mr Justice Nicklin and in particular the restriction on your use of the attached documentation stated at paragraph 2 of the Order.
We note the contents of your email timed at 11.11. We confirm that we have served you with the documentation (including the anonymised Application Notice) in accordance with the terms of the Court Order."
"We cannot ask the media not to name applicants of an [reporting restriction order] when they do not know who to not name.
In order for us to notify the media of this application the applicants must be named on the order.
If you do not wish to name the applicants the application will not be distribute[d] to the media."
"The Judge has been provided with the email exchange below. He is surprised to note the approach that is being adopted and thinks that there may be some misunderstanding. If the Alerts Service will not respond unless it is told the names of the applicant(s) (more than 100 individuals in this case), then the system will not work. Whilst the Court will always consider a request by media organisations to be told the identity of those seeking reporting restrictions, it is not reasonable to expect to be told them as a condition of notifying the media. As you will appreciate, the Court has to hold the ring prior to hearing the application."
"Please refer to the below link for advice on how the alert service works: https://www.medialawyer.press.net/courtapplications/index.jsp
A Healthcare NHS Trust v P & another ([2015] EWCOP 15), a decision which was handed down on March 13, 2015.
The draft order might show the parties listed as 'P, by his Litigation Friend, the Official Solicitor v an NHS Trust'.
This is OK as long as the names of all the parties are included in the schedule at the end of the draft order, or are given in the claim form itself.
A solicitor who refuses to give the names of the parties should be told that we will not distribute the notification, and that he/she should ensure that the fact that we have declined to do so is drawn to the attention of the court.
You are very welcome to notify the media yourself. The Alert Service will not do this when then applicants have not been named."
"I have advised on numerous occasions why the Alert Service will not send your application to the media. If you do not want to tell the media whom the claimants are then the alert service will not assist you in notifying them…
We have assisted on how you can notify [the subscribers] yourself. We have provided the links to the guidance of our service. We have sent you case law on why the applicants should be named on the application…
The Alert Service will no longer correspond on this matter."
"PROTECTION OF HEARING PAPERS
10. The Defendants and any third party given advance notice of the Application, must not publish or communicate or disclose or copy or cause to be published or communicated or disclosed or copied any witness statements and any exhibits thereto and information contained therein that are made, or may subsequently be made, in support of the Application or the Claimant's solicitors' notes of the hearing of the Application ("the Hearing Papers"), provided that the Defendants, and any third party, shall be permitted to copy, disclose and deliver the Hearing Papers to the Defendants' and third party's/parties' legal advisers for the purpose of these proceedings.
11. The Hearing Papers must be preserved in a secure place by the Defendants' and third party's/parties' legal advisers on the Defendants' and third party's/parties' behalf.
12. The Defendants, and any third party given advance notice of the Application, shall be permitted to use the Hearing Papers for the purpose of these proceedings provided that the Defendants' or third party's/parties' legal advisers shall first inform anyone, to whom the said documents are disclosed, of the terms of this Order and, so far as is practicable, obtain their written confirmation that they understand and accept that they are bound by the same.
PROVISION OF DOCUMENTS AND INFORMATION TO THIRD PARTIES
13. The Claimant shall be required to provide the legal advisers of any third party (or where unrepresented, the third party) served with advance notice of the application, or a copy of this Order promptly upon request, and receipt of their written irrevocable undertaking to the Court to use those documents and the information contained in those documents only for the purpose of these proceedings:
(a) a copy of any material read by the Judge, including material read after the hearing at the direction of the Judge or in compliance with this Order; [save for the witness statements referred to in Confidential Schedule 1 at the end of this Order] [the witness statements]; and/or
(b) a copy of the Hearing Papers."
Derogations from open justice: anonymity of a party or witness
"The Court must order that the identity of any party or witness 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 party or witness."
CPR 39.2 contains several provisions that reflect the fundamental rule of the common law that proceedings must he heard in public, subject to certain specified classes of exceptions: XXX -v- Camden LBC [2020] 4 WLR 165 [17].
[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, 235; Donald -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 evidence: Scott -v- Scott [1913] AC 417, 438-439, 463, 477; Lord 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) 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.
"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."
[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 BBC; In 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.
Submissions
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.
Decision
"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.