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26th Jul 2019
Christopher Loxton (instructed by Kennedys Law LLP) for the Defendant
The Honourable Mr Justice Julian Knowles:
In this action the Claimant, ZC, seeks damages for libel from the Defendant, the Royal Free NHS Foundation Trust (the Defendant/the hospital/the Trust). The words complained of in the Particulars of Claim were contained in an email sent on 12 September 2016 by a solicitor employed by the Defendant. She also claims damages for misuse of private information and breach of Article 8 of the European Convention on Human Rights.
The hearing before me was listed in open court and the names of the parties appeared on the court list in the normal way. Accordingly, they were available to the public at the Royal Courts of Justice and online. Towards the end of the first day of the trial the Claimant applied for an order pursuant to CPR r 39.2(4) that the judgment be anonymised so that she be referred to by her initials and other potentially identifying information be redacted from the judgment. I made a temporary order that the court list for the second day simply refer to the Claimant by her initials and I indicated I would hear submissions on the issue. On the second day I heard submissions from the Claimant and from the Defendant, and I also heard submissions from the Press Association. Both the Defendant and the Press Association opposed the application. There was no application by the Claimant that the trial be heard in private. Although I indicated a tentative view, I reserved my decision.
CPR r 39.2(4) provides:
“(4) 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.”
The test to be applied where a party seeks anonymisation is set out in Vol 1 of the White Book 2019 at p1248:
“The power of the court to order that the identity of any party or witnesses must not be disclosed is a broad power and the ‘interests’ involved may include, although they are not limited to, privacy and confidentiality … The question of whether a court should grant an order under r 39.2(4), or any other anonymity order, is not a matter of the judge’s discretion, but is a matter of obligation under the Human Rights Act 1998, s 6 and ECHR art 8. The test to be applied is whether there is sufficient public interest in publishing a report of proceedings that identifies the party to justify any resulting curtailment of that party’s art 8 rights.”
In Re Guardian News and Media Ltd  2 AC 697, , Lord Rodger said:
“52. In the present case M’s private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann’s formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.”
In Commissioners for Her Majesty’s Revenue and Customs v Banerjee  EWHC 1229 (Ch), , Henderson J said:
“In determining whether it is necessary to hold a hearing in private, or to grant anonymity to a party, the court will consider whether, and if so to what extent, such an order is necessary to protect the privacy of confidential information relating to the party, or (in terms of Article 8 of the Convention) the extent to which the party’s right to respect for his or her private life would be interfered with. The relevant test to be applied in deciding whether a person’s Article 8(1) rights would be interfered with in the first place, or in other words whether the Article is engaged so as to require justification under Article 8(2), is whether in respect of the disclosed facts the person in question had a reasonable expectation of privacy: see Campbell v MGN Ltd  UKHL 22,  2 AC 457, at paragraph 21 per Lord Nicholls of Birkenhead, and Murray v Express Newspapers Plc  EWCA Civ 446,  3 WLR 1360, at paragraph 24 of the judgment of the court. If Article 8(1) is engaged, the court will then need to conduct a balancing exercise on the facts, weighing the extent of the interference with the individual’s privacy on the one hand against the general interest at issue on the other hand. In cases involving the media, the competing general interest will normally be the right of freedom of expression under Article 10 of the Convention. In cases of the present type, the competing interest is the general imperative for justice to be done in public, as confirmed by Article 6(1) of the Convention.”
Having considered the matter further, for the reasons contained in a separate judgment that is confidential to the parties I conclude that this test is not satisfied, and I refuse the application for anonymisation.
However, I have anonymised this judgment on a temporary basis until the time for an appeal against my decision not to order anonymisation has expired, so as not to render an appeal otiose. In the event that no such application is made, or one is made and refused, I will issue a revised judgment identifying the Claimant.
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