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High-profile secrecy orders reveal limits of open justice



A mystery witness gave evidence in a libel trial after a judge granted anonymity to her and her children.

The identity of the woman, who was called as a witness after Austen Ivereigh sued the Daily Mail over claims he was a hypocrite about abortion, could not be reported due to a reporting restriction imposed by Mr Justice Eady.

The order was made under Rule 39.2(4) of the Civil Procedure Rules which, in remarkably plain language, says: “The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.”

The woman’s evidence included information of a sexual nature, medical details and private correspondence.

Her lawyers successfully argued that she and her children required anonymity to protect their privacy rights under Art. 8 of the European Convention on Human Rights.

The judge decided the trial issues would still be subject to adequate public scrutiny and Mr Ivereigh had not managed to articulate exactly why the woman’s name needed to be made public. He weighed the right to freedom of expression under Art. 10 and the right to a fair trial under Art. 6, and concluded there was no risk of a restrictive precedent being set because each case would turn on its facts.

In reality, however, it has set a high-profile precedent. It remains to be seen how often other judges will follow suit using the Rule 39 gag in publicly-heard civil cases.

Another noteworthy secrecy precedent was set by the Employment Appeal Tribunal in Edinburgh following a freelance journalist’s request to set aside a Restricted Reporting Order in a sexual misconduct claim.

Orders in sexual misconduct claims (as opposed to sex offence cases) generally end when the tribunal’s decision is promulgated. But in Dallas McMillan and A v B and Davidson, no decision was ever promulgated because the claimant withdrew her claim after the Order was made.

To try to stop the restriction continuing forever, freelance journalist Fiona Davidson persuaded the initial tribunal to lift the reporting restriction, but Dallas McMillan successfully appealed.

In a restrictive interpretation of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004, the Tribunal said anyone challenging an Order after it has been made must join themselves as a party to the proceedings, enabling other parties to seek costs against them if appropriate.

The Tribunal also said there were no proceedings to be joined in the present case because the claim had been withdrawn.

Fortunately the media face no such obstacles in challenging Orders before they are imposed. Rule 50(7) says “any person” can apply to make representations beforehand if the tribunal considers the applicant has a “legitimate interest” in whether an order is made.

Reporters also found themselves out of the loop at Leicester Crown Court where they were excluded from a discounted-sentence hearing involving a police informant, under relatively new secrecy powers in S.75 of the Serious Organised Crime and Police Act 2005.

Meanwhile, in the cut and thrust of libel law, the editor and publisher of Royalty Monthly have won permission to appeal against a decision that an article claiming that Prince Radu of Hohenzollern-Veringen used a ‘false title’ to gain access to social circles and official roles was unprotected by qualified privilege. (See ‘Responsible journalism’ bid fails in court.

And a preliminary hearing in a “ridiculous vitamin pills” libel claim, being defended by The Guardian, has highlighted that a fair comment defence may succeed even if the comment is based on facts which turn out to be untrue.

The case, Rath v Guardian News & Media, is a reminder that S.6 of the Defamation Act 1952 says a fair comment defence shall not fail merely because the truth of each and every factual allegation isn’t proved – so long as the opinion expressed is fair comment having regard to such of the alleged facts as are proved true.

That at least gives the media some room for manoeuvre on fair comment.


Solicitor Nigel Hanson is a member of Foot Anstey’s media team.
To contact Tony Jaffa or Nigel Hanson telephone 0800 0731 411 or e-mail [email protected] or [email protected]