McEwen -v Ministry of Defence (anonymity order)
Claim No. QB-2022-002067
In the High Court of Justice
King’s Bench Division
8 November 2023
Before:
The Honourable Mr Justice Nicklin
Between:
Derek Alan McEwen
-v-
Ministry of Defence
Order
UPON APPLICATION by the Defendant by Application Notice dated 24 October 2023 seeking an order that the witness noted in the application (“the Witness”) be granted anonymity pursuant to CPR 39.2(4) and that the issued documents be amended so that the witness has anonymity with his name removed and is referred to as “Soldier A” (“the Application”)
AND UPON the Application having been released by the Assigned Master to the Judge in Charge of the Media & Communications List
AND UPON CONSIDERING the draft Order accompanying the Application and being unable to find any evidence in support of the Application beyond that contained in the Application Notice
AND UPON the Court being unable to find a copy of the Particulars of Claim on CE-File
WITHOUT A HEARING IT IS ORDERED THAT:
- The Application will be listed to be heard by a Judge of the Media & Communications List on a date to be fixed between 15 January 2024 and 1 March 2024 with a time estimate of ½ day (“the Hearing”). Unless an Application, is made for a different order, the Hearing will take place in public.
- By 4.30pm on 15 November 2023, the parties must contact the Clerk of the Lists to fix the Hearing as directed by Paragraph 1 of this Order.
- By 4.30pm on 22 November 2023, the Claimant must ensure that a copy of the Particulars of Claim is filed on CE-File.
- Pending determination of the Application, or further order of the Court in the meantime:
Anonymity
a. pursuant to s.6 Human Rights Act 1998, and/or CPR 39.2 and the Judge, being satisfied that it is strictly necessary, ordered that the name of the Witness is to be withheld from the public and must not to be disclosed in any proceedings in open court;
b. there be substituted for all purposes in these proceedings in place of references to the Witness by name, and whether orally or in writing, references to “Soldier A”.
Reporting restriction
c. pursuant to s.11 Contempt of Court Act 1981, there shall be no publication of the identity of the Witness or of any matter likely to lead to the identification of the Witness in any report of, or otherwise in connection with, these proceedings, provided that nothing in this Order shall prevent the publication, disclosure or communication of any information which is contained in this Order.
Restrictions on access to documents on the court file
d. Upon the Judge being satisfied that it is strictly necessary:
i. a non-party may not obtain access to or copies of any confidential schedules to any (i) statements of case; (ii) witness statements; (iii) applications; (iv) Orders; and/or skeleton arguments (“the Restricted Documents”) from the Court file.
ii. any non-party wishing to obtain access to or copies of the Restricted Documents, must make an application to the Court, such application to be made by Application Notice served on the parties at least 24 hours before the Application is made.
Restrictions on use of evidence
e. The Claimant may use the evidence filed in support of the Application only for the purposes of the litigation. No copy of any confidential exhibit can be disclosed or published by the Claimant.
Publication on the Judiciary Website
f. Pursuant to CPR 39.2(5) a copy of this Order will be published on the Judiciary Website.
- By 4.30pm on 29 November 2023, the Defendant must file and serve:
a. its evidence in support of the Application; and
b. a revised draft of the Order that it will ask the Court to make at the Hearing.
The evidence should be contained an open witness statement and, if necessary, a confidential exhibit. Any confidential exhibit may be filed on CE-File using the private feature so that the exhibit is not publicly available on the Court File. - By 4.30pm on 13 December 2023, the Claimant must file and serve any evidence in answer to the Application. Any confidential information should be included in a confidential exhibit and filed on CE-File in accordance with the directions given at the end of Paragraph 5 above.
- By 4.30pm on 20 December 2023, the Defendant must file and serve any evidence in response. The directions at the end of Paragraph 5 will apply equally to any further evidence that is filed by the Defendant.
- The parties must cooperate on the preparation of the bundle for the Hearing.
- By 10am, 5 working days before the Hearing, the Defendant must file and serve an indexed and paginated bundle for the Hearing.
- By 10am, 2 working days before the Hearing, the parties must exchange and file skeleton arguments. The skeleton arguments must be structured in a way that ensures that any confidential information is set out in a confidential annex. The open parts of the skeleton arguments are liable to be provided to members of the public
and/or media at the Hearing. - By 10am, the working day before the Hearing, the Defendant must file a joint bundle of authorities.
- The parties may, by written agreement, filed with the Court vary the timetable for evidence provided in Paragraphs 5-7 inclusive providing that any variation does not jeopardise the Hearing or the other directions. Beyond filing the written agreement on CE-File the parties do not need to make any Application or otherwise contact the Court if the timetable is varied under this Paragraph.
- Order made without allowing the parties (or any third parties affected by this Order) as such:
a. either party may apply to vary or discharge the Order, but any Application seeking to do so must be made by Application Notice, issued, filed and served by 4.30pm on 15 November 2023; and
b. any third party affected by this Order may apply to vary or discharge such parts of this Order that affect him/her/it, but any Application seeking to do so must be made by Application Notice, issued, filed and served (together with evidence in support) on the parties not less than 3 working days before the hearing of the Application.