PK -v- Disclosure and Barring Service (anonymity order)
Case Reference: CA-2022-001866 (-A) [SEAL]
In The Court Of Appeal, Civil Division
23 February 2023
Before:
Rt. Hon. Lord Justice Warby
Between:
PK
-v-
Disclosure and Barring Service
Anonymity Order
ORDER made by the Rt. Hon. Lord Justice Warby
On consideration of the appellant’s notice and accompanying documents, but without an oral hearing, in respect of an application for permission to appeal and an application for an anonymity order
ORDER AMENDED UNDER THE SLIP RULE UNDERLINED IN RED THIS 2nd MARCH 2023
PK v Disclosure and Barring ServicePK v Discolsure and Barring Service
Decision: Permission to appeal granted on all grounds.
Application for anonymity adjourned for hearing at the outset of the appeal on notice to the media.
Until after judgment on that application or further order in the meantime the applicant shall continue to be referred to as PK and there shall be no reporting of her name, address or any other matter that would be likely to lead to her identification as the appellant in this case. Liberty to apply for further directions in the anonymity application.
Reasons
Merits. This is a first appeal for which the relevant test is that provided for by CPR 52.6. Ground 1 raises a point of law of some importance and has a realistic prospect of success. Grounds 2 and 3 also have a prospect of success that is more than fanciful. I am doubtful that Ground 4 has any such prospect but it is connected with the other grounds, should not involve any major extra effort or expense, and the risks of causing complications by excluding it from the scope of the appeal are a sufficiently compelling reason to grant permission on that ground also.
Anonymity
This is a derogation from the ordinary rule of open justice; it is only granted exceptionally in this court; the applicant has to show that it is necessary in the interests of justice; convenience or the risk that publicity might have some undesirable consequences are not enough; and the fact that the respondent does not oppose anonymity is irrelevant. See CPR 39.2, Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523 [54]-[70] and Oldham Metropolitan Borough Council v Makin [2017] EWHC 3543 (Ch), [2018] Ch 543 [62]-[63]. The application notice does not address the applicable criteria and it is by no means obvious that they are satisfied here. If the application is to be maintained there must be a hearing at which the media have an opportunity to make representations. There is no need for that hearing to be separate from the substantive appeal hearing; the issue can be dealt with at the start. In the meantime an anonymity order is necessary in the interests of justice to protect the appellant’s procedural rights and any substantive right to anonymity she may later establish.
Information for or directions to the parties
If the anonymity application is to be pursued
- It must be served by the appellant via the Press Association’s Copy Direct Service at: A lerts.Service@pamediagroup.com no later than 35 days before the hearing of the appeal. The parties must be named.
- Each party must file with its appeal skeleton argument a separate skeleton argument addressing the issue of anonymity and serve the same on PA Media and any other media organisation or reporter that notifies the parties of an intention to appear or be represented at the hearing of the anonymity application.
- Any third party that wishes to be heard or to make written submissions in relation to the anonymity application must notify the court and provide written submissions or a skeleton argument not later than 7 days before the hearing. Any third party wishing to be represented by anyone other than an advocate with higher court rights must apply for permission giving the reasons and any supporting evidence.
The parties are reminded of the provisions of PD52C para 33 (Documents to be provided to court reporters at the hearing of an appeal).
Mediation: Where permission has been granted or the application adjourned:
Does the case fall within the Court of Appeal Mediation Scheme (CAMS) automatic No
pilot categories (see below)?
Pilot categories:
• All cases involving a litigant in person (other than immigration and family appeals)
• Personal injury and clinical negligence cases;
• All other professional negligence cases;
• Small contract cases below £500,000 in judgment (or claim) value, but not where principal issue is non-contractual;
• Boundary disputes;
• Inheritance disputes.
• EAT Appeals
• Residential landlord and tenant appeals
If yes, is there any reason not to refer to CAMS mediation under the pilot? If yes, please give reason:
on-pilot cases: Do you wish to make a recommendation for mediation? Yes/No (delete as appropriate
No. Unrealistic to suppose mediation could resolve the issues
Where permission has been granted, or the application adjourned
a) time estimate (excluding judgment) 3 hours (to include the anonymity application)
b) any expedition No
Signed:
Date: 23 February 2023 BY THE COURT
Notes
(1) Rule 52.6(1) provides that permission to appeal may be given only where –
a) the Court considers that the appeal would have a real prospect of success; or
b) there is some other compelling reason why the appeal should be heard.
(2) Where permission to appeal has been refused on the papers, that decision is final and cannot be further reviewed or appealed. See rule 52.5 and section 54(4) of the Access to Justice Act 1999.
(3) Where permission to appeal has been granted you must serve the proposed bundle index on every respondent within 14 days of the date of the Listing Window Notification letter and seek to agree the bundle within 49 days of the date of the Listing Window Notification letter (see paragraph 21 of CPR PD 52C).
Case Number: CA-2022-001866 (-A)