In what circumstances can a claimant in civil litigation commence proceedings under a pseudonym?  We are familiar with alphabetised claimants in injunction cases who seek anonymity on grounds that the purpose of their proceedings would otherwise be defeated:  if the cheating footballer/actor/TV presenter has to put his name on the claim form, we’ll know what he’s been up to, so there’s no longer any point in suing to keep it private.  

But what about cases that do not involve injunctions?  Claimants seek anonymity for all kinds of reasons, most usually to protect their article 8 rights in cases such as family and clinical negligence proceedings, where medical or other personal information is in issue.  Even if a claimant is not seeking an injunction to prevent people knowing about, or reporting, the proceedings, he can apply before the proceedings are commenced for permission to dispense with the requirement to state his name imposed by CPR 16PD 2.6.  

What principles and procedures apply to cases where claimants apply to disguise their identities before issuing proceedings?  The judgment of Tugendhat J in CVB v MGN Ltd handed down today provides some answers.

The case of CVB

The claimant in CVB is a widow with children whose husband died some years ago in a well known incident.  A number of other people also died.  She attended a service to commemorate those who died.  A photograph of her taken at the event was published in the Daily Mirror.  When her solicitors complained that her privacy had been infringed as the picture allegedly showed her in a distressed state, the newspaper agreed not to publish the picture again but it did not admit liability and did not agree to her other requirements.  She therefore issued proceedings, having first obtained permission to do so under the initials CVB.

Although CVB’s solicitors were already in contact with MGN’s legal department, MGN was not served with notice of the application, which was made to the Master without notice.  When MGN was later served with the evidence that was put before the Master, it considered it was insufficient to support the grant of the anonymity order.  It therefore applied for the order to be varied or discharged.  The application was heard last month by Tugendhat J.  

There was evidence before the judge that it was common practice for pre-action anonymity orders to be sought and obtained without notice by means of a short application to the Master.  

The issue of principle

It was not in dispute that (a) an order permitting a party to issue proceedings anonymously is a derogation from the principle of open justice which might affect the right to freedom of expression and (b) derogations from open justice should be ordered only where necessary.   The issue of principle was whether the practice of getting permission to issue proceedings anonymously without giving notice to the defendant or third parties was compatible with s  12(2) of the Human Rights Act 1998 and the guidance of the Master of the Rolls in JIH v News Group Newspapers (which involved an injunction to prevent publication of private information).

A number of in house newspaper lawyers wrote to the court before the hearing to point out that they would expect to receive notice of applications for anonymity orders in cases against them and as experienced lawyers in the field they could be trusted to distinguish between information provided for editorial purposes and information provided for legal reasons.  They also pointed out that anonymity orders affect the wider public by denying to them information to which they would otherwise have access.  Tugendhat J said that the letters from the in house lawyers were of great assistance to the court.  

MGN argued that since s 12(2) required notice to be given to a person against whom any releief is to be granted which might affect the right to freedom of expression, that section applied to this case.  It also argued that the well-known principles in JIH should apply – applications for anonymity to be carefully scrutinised etc.  

CVB argued that the order made by the Master was not an injunction but was a permissive order.  It was not made “against” MGN or anyone else in the sense that word is used in s 12(2).  On her behalf it was argued that the course of action proposed by MGN was disproportionate and impractical.  

Tugendhat J decided that a pre-action anonymity order made pursuant to CPR Part 16 is not an injunction or an interim remedy, being permissive only.  It is therefore not an order made “against” a party and no notice of an application for such an order is therefore required.  Paragraphs (1) to (9) of the guidance in JIH could, however, be readily applied to what he termed r.16 orders.  He observed that he had reached that conclusion “without regret”: to have decided otherwise would have been to impose too heavy a burden on claimants of modest means and would in his opinion confer little benefit on news publishers.  He noted that any person affected by a r.16 order could apply for it to be discharged at any time.

Whether the anonymity order in CVB’s case should continue

On the facts of CVB’s case, Tugendhat J decided that the proceedings should remain anonymised so far as the claimant is concerned.  He considered a witness statement from CVB (the application had previously been supported only by a witness statement from her solicitor).  CVB’s evidence was that her family had suffered a tragedy that continued to be subject of press coverage from time to time; she had as a result been treated differently by (well-intentioned) friends and acquaintances; she and her family found questions about the event upsetting; she had moved home to start her life again among people who did not know she was a victim; and she was now employed in an activity which, if people knew about the tragedy she had suffered, would in her belief make her job more difficult.

MGN made it clear that it was not unsympathetic to the claimant or her situation.  It nonetheless considered the evidence before the court insufficient to demonstrate the necessity required to derogate from the principles of open justice.  It later served a defence in which it contended that the photographs were taken at a public event.  

Tugendhat J noted that CVB was not suing in respect of the information that she was a widow.  She was suing in respect of photographs of herself.  He therefore accepted that this was not a case in which disclosure of the information sought to be protected would defeat the very purpose of the proceedings.  In his judgment the claimant had nonetheless demonstrated a real interest in her children and herself keeping knowledge of their involvement in the tragedy private.  There was no sufficient general public interest in publishing a report of proceedings which identified the claimant and her children such as to justify the curtailment of their right to respect for their private and family life which he considered likely to arise if CVB were to be identified.  

The judge did, however, vary the Master’s order.  The order had provided that “There be substituted for all purposes in these proceedings in the place of references to the Applicant by name and whether orally or in writing, references to the letters CVB”.  The judge noted that such a provision appeared to be wider than envisaged by CPR 5.4C and 16 and varied the order accordingly.  

The judge also suggested that the procedure for applying for dispensation from the requirements of CPR PD16 and for orders under CPR 5.4C might be set out in the CPR or a Practice Direction.  He has drawn his judgment to the attention of those responsible for considering such matters.  

Comment

There may be many cases where claimants have good reason to seek anonymity and should not be obliged before doing so to notify the proposed defendant or third parties.  The judge was therefore right to observe at [26] that the facts specific to any particular claim are of limited assistance in formulating the principles which should govern an application for a r.16 order.  

It may nonetheless seem a surprising result that on the facts of this case, it should have been adjudged that the claimant was not even required to notify the defendant that she was seeking to issue the proceedings under a disguised name.  The claimant’s solicitors were, after all, already in communication with the legal department of the defendant newspaper and it might have been reasonably anticipated that the newspaper might have had something to say about a claim for anonymity in a case where, as the judge found, identification of the claimant would not have undermined the confidentiality of the information sought to be protected.

The judge noted that the r.16 order was not an injunction.  It was a “permissive” order.  The judge did not go so far as to endorse the submission by the claimant’s counsel that “the order does not prohibit the publication of anything” but he did say the following:

“The practical effect of a r.16 order is that the defendant, or anyone else who happens to know the identity of the claimant, if they do disclose to the public the identity of the party who is referred to in the title to the action, is unlikely by that fact alone to be committing a contempt of court or interfering with the administration of justice. But if the disclosure of that identity does amount to an interference with the administration of justice, or if it amounts to a tort such as defamation or misuse of private information, the person making the disclosure will not be able to rely by way of defence on the fact that the identity of the claimant is available as a matter of public record, as he otherwise would be.”

The judge suggests, in other words, that the effect of a r.16 order is different from that of an injunction.  But is that really the case in practice?  The effect of a r.16 order, even if not technically made “against” MGN, will inevitably inhibit MGN (or any party in a similar position) from revealing the claimant’s identity.  It would certainly be a confident step to name someone such as CVB once a court has already decided, rightly or wrongly, that she should be permitted to sue under a protective name.

CVB’s anonymity is of course a matter that will be kept under review, as Tugendhat J makes clear at [66] of his judgment: “all derogations from open justice must be kept under review by the court, and varied or discharged if they cease to be necessary”.