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XXX -v- Camden London Borough Council (anonymity)

Neutral Citation Number: [2020] EWCA Civ 1468
Case No: C1/2019/2728

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN’S BENCH DIVISION)

Date: 11/11/2020

Before :
LORD JUSTICE McCOMBE
LORD JUSTICE MOYLAN
and
LORD JUSTICE DINGEMANS

 

Between :

XXX
– and –
CAMDEN LONDON BOROUGH COUNCIL

—————————————————————————————————————————

Lord Justice Dingemans :

Introduction

1. The appellant appeals against the refusal to make orders anonymising her name and
redacting certain details from published judgments. The appeal raises a point about the
proper approach to applications for anonymisation under CPR 39.2.

2. The appellant brought proceedings for judicial review against the Respondent to quash
a decision relating to the award of housing points. Permission to apply for judicial
review was granted in 2018 following a renewed application for permission. The
substantive claim for judicial review was dismissed in 2019. No application for
anonymity was made to the judges hearing either the renewed application for
permission to apply or the substantive claim, and the judges gave judgments in open
court in the usual way.

3. Following publication of the judgment in 2019 the appellant made an application for
what she called “a sealing order”, which was in effect an application for an anonymity
order. This was said to be so that personal sensitive information contained in the
judgment about the appellant would not be publicised. The order was refused on paper
by Mr David Pittaway QC sitting as a Deputy High Court Judge. The appellant renewed
the application at an oral hearing before Mr Michael Fordham QC sitting as a Deputy
High Court Judge (now Fordham J) (“the judge”). The application was dismissed but
the judge did order that the appellant’s name should be anonymised in relation to the
proceedings before him.

4. The appellant appeals against the dismissal of her application by the judge and seeks
orders: preventing publication of her name in these proceedings and the proceedings
below; for redaction of her name and details of her country of origin and ethnicity from
the judgment of HHJ Walden Smith; and for similar redactions to the judgments
published in 2018 and 2019; and on the appeal. Permission to appeal was granted by
Males LJ.

5. Males LJ also stated that it would be in the appellant’s interest to be represented and
that if the appellant could not obtain public funding she should contact Advocate, the
Bar’s pro bono charity. Advocate have represented the appellant. I am very grateful to
Mr Justin Bates and Mr Alex Shattock, instructed by Advocate, for their excellent
written and oral submissions. The respondent took a neutral position on the appeal and
therefore did not appear at the hearing but did file a helpful Skeleton Argument
prepared by Mr Terence Gallivan identifying relevant principles and considerations for
the Court.

The application for anonymity and redactions
6. The appellant made her application for anonymity because the case had “too much
personal sensitive information about my physical and mental health as well as my
background …”. The appellant adduced medical evidence from two psychiatrists. The
medical evidence showed that the appellant suffered from a psychotic disorder with
significant social anxiety, paranoia and suspiciousness which has been disabling and
distressing to her. One psychiatrist stated that the appellant lacked insight into her
condition and refused to consider medication which would have been beneficial. The
Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
medical evidence showed paranoid thinking by the appellant and very limited social
functioning, and that the appellant’s subjective fears about a number of matters had
increased following the publication of the judgments, which had contributed to a
worsening of the appellant’s mental state. The appellant also relied on a letter from a
faith leader. Although the evidence established the nature and effect of the appellant’s
fears, it also established that they are subjectively rather than objectively based.

7. There was a hearing before the judge on 4 September 2019. The appellant had not
made a witness statement but at the hearing the appellant referred in submissions to her
physical and mental health disabilities. The appellant stated that she had brought the
proceedings against the respondent council because she considered that she met all of
the criteria for social housing and that the respondent council had committed unlawful
racial and disability discrimination. The appellant said that she had been unable to
secure legal representation and had to represent herself. The appellant stated that losing
the case was unexpected and a blow but what worsened her condition was that she
found that the judgment had been made public. The appellant said to the judge that the
easiest and best way of dealing with matters was for the judgments in the public domain
to be withdrawn.

The judgment below
8. The judge gave an ex tempore judgment. He set out the relevant background and details
of the medical evidence showing the link between the publication of the judgments and
the appellant’s worries and concerns. The judge referred to the test of necessity set out
in CPR 39.2 and also noted that his decision had to be compatible with the appellant’s
human rights.

9. The judge held that the test of necessity was not met. He considered the appellant’s
rights under articles 2, 3 and 8 of the European Convention on Human Rights and
Fundamental Freedoms (“ECHR”). He found that it was neither necessary nor
appropriate for the court to act retrospectively and make an anonymity order in relation
to the previous judgments. The judge stated that the test of necessity to interfere with
the open justice principle was not met. He also held that it was not appropriate when
balancing article 8 rights to make the order.

10. The judge granted anonymity in relation to the hearing before him and his judgment.
He stated that it might seem odd to have rejected the earlier application for anonymity
for the earlier judgments and yet to maintain anonymity in relation to his ruling. He
said that the appellant had had particular difficulties in attending court because of her
anxiety, that there were considerations of access to justice engaged, and that promotion
of her access to Court enabled him to make the order anonymising the appellant’s name
for the purposes of the application for anonymity only. There has not been an appeal
against this part of the order made by the judge. When granting permission to appeal
Males LJ directed that the proceedings in the Court of Appeal should be anonymised,
and there has been no application to set aside that direction.
The appellant’s case on the appeal

11. Mr Bates submitted that an anonymity order should have been made by the judge
because the medical evidence showed that the effect of the publication of the judgments
had been to worsen the appellant’s mental health. It was submitted that the public
Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
interest in open justice could be satisfied by ordering the anonymisation of the
appellant’s name from the judgments and redacting certain personal details which
would leave the judgments comprehensible and the appellant protected. The appellant
would then be able to contact those law reporting organisations which had the original
judgments and ensure that only the anonymised versions were available, which would
provide a real benefit to the appellant.

12. Mr Bates also submitted that the judge had not adopted the two stage approach to
applications for anonymity suggested in Civil Procedure 2020 (“the White Book”) at
39.2.14. Mr Bates submitted that the Court of Appeal should therefore undertake the
balancing exercise again and take account of section 166(4) of the Housing Act 1996,
which had not been referred to the judge below. This provides that the fact that a person
was an applicant for an allocation of housing accommodation should not be divulged
without consent to any other member of the public. Mr Bates recognised that it was
unusual to order anonymity for a party after the judgment had been published, but he
drew attention to the decision of W v M [2012] EWHC 1679 (Fam) where proceedings
in the Family Division had been anonymised after the proceedings had been
compromised, even though an earlier application for anonymity had been refused.
Relevant legal provisions and principles

13. Section 166(4) of the Housing Act 1996 provides: “the fact that a person is an applicant
for an allocation of housing accommodation shall not be divulged (without his consent)
to any other member of the public”.

14. CPR 39.2 provides that “the general rule is that a hearing is to be in public”. CPR
39.2(3) makes provision for specific situations where a court might sit in private, for
example where publicity would defeat the object of the hearing (CPR 39.3(a)) or to
protect the interests of a child or protected party (CPR 39.3(d)).

15. CPR 39.2(4) provides: “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”.

16. The Human Rights Act 1998 gives domestic effect to the provisions of the ECHR.
Section 12 of the Human Rights Act applies whenever a Court is considering whether to
grant any relief which might affect the exercise of the right to freedom of expression. In
this case the relief sought is a prohibition on publishing certain material so section 12 of
the Human Rights Act is engaged. Section 12(4) of the Human Rights Act directs the
Court to have “particular regard” to: the importance of freedom of expression protected
by article 10 of the ECHR; the extent to which material has, or is about, to become
public; the public interest in publishing the material; and any privacy code.

17. CPR 39.2 reflects the fundamental rule of the common law that proceedings must he
heard in public, subject to certain specified classes of exceptions, see Scott v Scott
[1913] AC 417. In Scott v Scott, which concerned the publication of a transcript
containing details about whether a marriage had been consummated, it was stated that:
“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or
deterrent both to parties and witnesses, and in many cases, especially those of a criminal
Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
nature, the details may be so indecent as to tend to injure public morals, but all this is
tolerated and endured, because it is felt that in public trial is to be found, on the whole,
the best security for the pure, impartial, and efficient administration of justice, the best
means for winning for it public confidence and respect”.
The passage of time has not undermined the importance of open justice: “The principle
of open justice is one of the most precious in our law”, see R(C) v Justice Secretary
[2016] UKSC 2; [2016] 1 WLR 44.

18. In addition to the exceptions set out in CPR 39.2(3) there are also automatic statutory
reporting restrictions, which cover, for example, victims of sexual offences, family law
proceedings and the identities of children in certain situations. As Lord Steyn recorded
in In Re S (A Child) [2004] UKHL 47; [2005] 1 AC 593 at paragraph 20 “the Court has
no power to create by a process of analogy, except in the most compelling
circumstances, further exceptions to the general principle of open justice”. In R v Legal
Aid Board, ex parte Kaim Todner [1999] QB 966 at 977 Lord Woolf MR explained why
courts needed to be careful to prevent extensions of anonymity by analogy saying:
“the need to be vigilant arises from the natural tendency for the general principle to be
eroded and for exceptions to grow by accretion as the exceptions are applied by analogy
to existing cases. This is the reason it is so important not to forget why proceedings are
required to be subjected to the full glare of a public hearing. It is necessary because the
public nature of the proceedings deters inappropriate behaviour on the part of the court.
It also maintains the public’s confidence in the administration of justice. It enables the
public to know that justice is being administered impartially. It can result in evidence
becoming available which would not become available if the proceedings were
conducted … with one or more of the parties’ or witnesses’ identity concealed. It makes
uninformed and inaccurate comment about the proceedings less likely …”.

19. CPR 39.4 recognises that orders for anonymity of parties and witnesses may be made.
The common law has long recognised a duty of fairness towards parties and persons
called to give evidence, see In Re Officer L [2007] UKHL 36; [2007] 1 WLR 2135, and
balanced that against the public interest in open justice in specific cases. Under the
common law test subjective fears, even if not based on facts, can be taken into account
and balanced against the principle of open justice. This is particularly so if the fears
have adverse impacts on health, see In Re Officer L at paragraph 22 and Adebolado v
Ministry of Justice [2017] EWHC 3568 (QB) at paragraph 30.

20. With the advent of the Human Rights Act 1998 the Courts have also been able to give
effect to the rights of parties and witnesses who may be at “real and immediate risk of
death” or a real risk of inhuman or degrading treatment if their identity is disclosed,
engaging articles 2 and 3 of the ECHR. A person’s private life may also be affected by
court proceedings, engaging article 8 of the ECHR. The common law rights of the
public and press to know about court proceedings are also protected by article 10 of the
ECHR, see Yalland v Secretary of State for Exiting the European Union [2017] EWHC
629 (Admin) at paragraph 20. The importance of the press interest in the names of
parties was explained by Lord Rodger in Re Guardian News and Media Ltd [2010]
UKSC 1; [2010] 2 AC 697 at 723. At paragraph 22 of In re S (a child) the House of
Lords affirmed that the inherent jurisdiction of the High Court to restrain publicity was
the vehicle by which the Court could balance competing rights under articles 8 and 10
of the ECHR.

Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
21. Lord Steyn addressed the way in which competing human rights should be balanced in
In re S (A child) at paragraph 17. He stated that when considering such a balancing
exercise four principles could be identified.
“First, neither article has as such precedence over the other. Second, where the values
under the two articles are in conflict, an intense focus on the comparative importance
of the specific rights being claimed in the individual case is necessary. Thirdly, the
justifications for interfering with or restricting each right must be taken into account.
Finally, the proportionality test must be applied to each. For convenience I will call this
the ultimate balancing test”.
It is also necessary to have particular regard to: the importance of freedom of expression
protected by article 10 of the ECHR; the extent to which material has, or is about, to
become public; the public interest in publishing the material; and any privacy code;
pursuant to section 12 of the Human Rights Act 1998. Many of these principles were
rehearsed by Haddon-Cave LJ in paragraphs 20 to 29 of Moss v Information
Commissioner [2020] EWCA Civ 580, a case in which issues not dissimilar to those in
this case arose.

22. It is well-known that the Court of Appeal will interfere only if the judge was wrong,
see CPR 52.21(3). Appellate courts must be cautious about overturning evaluations by
a judge who has had to balance a number of factors. In the absence of an error of law,
it is necessary to show some omission to take into account material factors, a decision
taking account of immaterial factors or an error in principle.
The judge’s approach was correct

23. It is right to record that the White Book does suggest in the notes at 39.2.14 that the
Court undertake a two stage test: first a threshold test showing that the grant of
anonymity was necessary; and secondly, if that threshold is passed, balancing the
interests of the parties and the public interest in open justice.

24. It appears that the notes in the White Book are based on what Turner J. said in Kalma
v African Minerals Limited [2018] EWHC 120 (QB) at paragraph 29, namely that a
threshold of seriousness was required before the court will undertake a balance of the
competing interests to decide whether to make an order for anonymity. In Suez Fortune
Investments v Theo Blake [2018] EWHC 2929 (Comm) at paragraphs 12 and 13 Teare
J. said that the threshold test could only be met if the grant of anonymity was
“necessary”. As Mr Bates pointed out, the notes in the White Book 2020 at 39.2.14
also refer to the first part of the threshold test as being one of “necessity”. In my
judgment it is not helpful to require judges, when confronted with applications for
anonymity under CPR 39.2(4) (which often have to be determined at short notice) to
ask first whether a threshold of “necessity” has been passed before going on to carry
out a balancing exercise of competing interests to determine whether an order for
anonymity is “necessary” under CPR 39.2(4). This is because such a two stage test has
the potential to create confusion by using “necessity” and “necessary” in different ways
at different parts of the test. I agree that a Court may undertake an assessment of
whether the application stands any prospect of success before carrying out a balancing
exercise, but I do not consider that it is necessary to do so, nor do I consider that any
failure to explain in the judgment that any such exercise has been carried out is a ground
for setting aside the determination of the judge at first instance. In my judgment, when
Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
confronted with an application for anonymity pursuant to CPR 39.2(4), the Court
should have regard to the relevant principles set out in the authorities referred to in
paragraphs 17 to 21 above, and carry out the balancing exercise of the relevant interests
under CPR 39.2 to determine whether “non-disclosure is necessary to secure the proper
administration of justice and in order to protect the interests of that party or witness”.
This is what the judge did below.

25. Further I do not accept that the provisions of section 166(4) of the Housing Act 1996
require this Court to come to a different result from that reached by the judge. Section
166(4) prevents the disclosure, without consent, of the fact that a person is an applicant
for an allocation of housing accommodation. This is for understandable reasons given
the scarcity of housing accommodation, and the need for applicants sometimes to
satisfy detailed medical requirements which have been imposed by councils to form a
basis for allocating accommodation. However Parliament did not extend the section to
provide anonymity to claimants seeking judicial review of decisions made by the
councils about the allocation of housing accommodation. It is apparent that many such
claimants challenging decisions are not afforded anonymity, see for example R(Gullu)
v Hillingdon London Borough Council [2019] EWCA Civ 692; [2019] PTSR 1738
where the names of the parties were reported in the Court of Appeal but were not
reported at first instance. Although Mr Bates skilfully argued, by way of analogy with
section 166(4) of the Housing Act, for the extension of anonymity to such claimants
challenging decisions made by councils about housing accommodation, in my
judgment the principled answer to the submission is that provided by In re S (a child).
In re S (a child) the House of Lords warned Courts about extending classes of
anonymity by way of analogy. It may be that there are some cases where it may be
necessary to provide anonymity to such a claimant, but that would be on the basis that
it was necessary to do so under CPR 39.2 rather than simply because the claimant was
an applicant for housing accommodation.

26. In these circumstances there is, in my judgment, nothing to show that the balancing
exercise undertaken by the judge was wrong. Relevant factors considered by the judge
included the facts that: the appellant was a party to the proceedings and not just a
witness; and the appellant had not applied for anonymity at or before the hearings
before the respective judges. In addition it is likely that there would be difficulties for
the law reporting organisations in revisiting publications which they have already made
in order to comply with an order for anonymity.

27. I should address one specific point made by the appellant, when acting in person, in her
“replacement Skeleton Argument”, which Skeleton Argument was itself replaced by
the Skeleton Argument produced by Mr Bates and Mr Shattock. I address this point
because it demonstrated a misunderstanding about the court’s practice when dealing
with medical information relating to claimants which seems to have left the appellant
feeling she has been singled out for unfair and unfavourable treatment by the court
below. The appellant appeared to believe that the courts would not normally publish
medical information relating to claimants. This is not the case, as a reading of Kemp
& Kemp: the Quantum of Damages will show. Such publications of medical
information also extend to providing details of mental health illnesses. A recent
illustration is Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019]
EWHC 552 (QB); [2019] Med LR 250 where the Court refused to grant an anonymity
Judgment Approved by the court for handing down. XXX v Lon Bor of Camden
order to a mother in a clinical negligence case claiming psychiatric injury following the
stillbirth of her first child.

Conclusion
28. For the detailed reasons given above I would dismiss this appeal.
Lord Justice Moylan
29. I agree.
Lord Justice McCombe
30. I also agree.

 

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