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Anonymity orders cut to protect public’s rights


At the start of the year, the Supreme Court lamented that its list of cases resembled an “alphabet soup” of initials.

So much of the Court’s caseload involved privacy appeals in cases where judges had banned the reporting of the litigants’ names.

Almost a year on, a casual observer would be forgiven for thinking not much has changed. The titles of many High Court cases over recent weeks have still been listed as instantly-forgettable initials.

But closer inspection shows some judges have taken the Supreme Court’s concerns on board and are scrutinising applications for gagging orders more rigorously to protect freedom of expression rights, trimming restrictions to what is strictly necessary.

In September, Mrs Justice Sharp gave an important ruling in a case known soupily as DFT v TFD.

This was a privacy case in which the claimant was allegedly being blackmailed over the threatened release of private, sexual information. Earlier a different judge had granted a temporary super-injunction banning reporting of any details of the case and of the reporting restriction itself.

However, Justice Sharp refused to extend the super-injunction, and instead made a novel type of anonymity order that kept the parties’ names secret but enabled the press to publish some information about the case as contained in her published judgment.

Two more alphabet soup cases followed in October, decided by Mr Justice Tugendhat.

The first, AMM v HXW, was another sex-information-blackmail case, in which a TV-star claimant alleged his ex-wife was threatening to reveal that they had a sexual affair after he re-married.

The judge followed Justice Sharp’s example and imposed a tailored anonymity order, enabling the public to know the basic information about the case which he included in his judgment.

In Gray v UVW, he went a step farther. The claimant – a businessman, writer and occasional adviser to the Ministry of Defence – had communicated private information to the defendant and feared it may have come to the attention of a third party who might be about to publish it more widely.

The judge lifted the temporary injunction that had previously been imposed, and refused to make any anonymity order in relation to the claimant’s name, which we therefore now know to be Bernard Gray. (However, he did find it strictly necessary to anonymise the defendant as “UVW”, and he limited the publishable information to what was contained in his judgment, as in the DFT case.)

This month, Tugendhat J went even farther to protect the public interest in open justice.

In another privacy case, JIH v News Group Newspapers, he lifted an anonymity order imposed at an earlier hearing, even though the publisher of The Sun and the News of the World consented to the gagging order staying in place until trial. (JIH’s real name will shortly be revealed unless the judge’s decision is appealed within the appeal time limit.)

Again the judge limited what was reportable to the information contained in his judgment, following Justice Sharp’s lead in DFT.

Justice Tugendhat emphasised the names of the parties in court cases should generally be included in orders and judgments of the Court, and should generally be reportable unless an exception to the open justice principle rule is strictly justified.

“Parties to civil litigation can waive or give up their own rights: they cannot waive or give up the rights of the public,” he said, in Gray.

The Supreme Court had made its point well at the start of the year, in Guardian News & Media Ltd & Others, Re HM Treasury v Ahmed.

Lord Rodger said: “What’s in a name? ‘A lot’, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people…A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on.

“Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.”

The press will welcome the fact that a couple of media-specialist judges have been painstakingly trimming wide reporting restrictions to what is deemed strictly necessary.

For reporters on regional newspapers and magazines, though, a real difference on the ground will only be felt when judges sitting in provincial courts show the same respect for open justice and the media’s and public’s freedom of expression rights.

  • Solicitor Nigel Hanson is a member of Foot Anstey’s media team. To contact him telephone 0800 0731 411 or e-mail [email protected] or visit www.footanstey.com.