Neutral Citation Number: [2016] EWHC 1646 (QB)

Date: 16/05/2016
Before :

MR JUSTICE WARBY
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IN AN INTENDED ACTION
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Between :

	DMK	Claimant	
	- and –		
	News Group Newspapers Limited	Defendant	

AND
Case No: HC-2016-000174

IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION

Between :

	Vincent Van Pelt 	Claimant	
	- and –		
	AAA 	Defendant	

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Christina Michalos (instructed by Winckworth Sherwood LLP) for DMK/AAA
Jacob Dean (instructed by NGN Legal) for News Group Newspapers Ltd 

Hearing date: 14 May 2016
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Judgment Approved
Mr Justice Warby : 
1.	On the afternoon of Saturday 14 May 2016 I granted two orders designed to prevent, until the end of this week, the public identification of a woman to whom I shall refer as DMK as being the defendant in case No HC-2016-000174, an action proceeding in the High Court Chancery Division (“the Chancery Action”).  
2.	One of the orders was an interim non-disclosure order or injunction (“the Injunction”), made in an intended privacy action in the High Court Queen’s Bench Division. The Injunction restrains News Group Newspapers Ltd (“News Group”), the publishers of The Sun newspaper, from publishing information that would identify DMK as the defendant in the Chancery Action. It lasts until a Return Date on Friday 20 May 2016, or further order in the meantime. 
3.	The other order (“the Inspection Order”) imposes restrictions on the inspection of the court file in the Chancery Action, until after judgment on an application which DMK has issued seeking orders securing her anonymization in that action. That application is fixed for hearing on Thursday 19 May 2016. My order ensures that the only documents on the court file which shall be open to public inspection in the meantime, without the court’s permission, are copies of the statements of case which have been redacted so as to remove information that would serve to identify DMK as the defendant in the Chancery Action.
4.	The hearing that led to these orders took place by conference telephone call, in private. DMK was represented by Ms Christina Michalos, who submitted a detailed skeleton argument.  News Group was represented by Mr Jacob Dean. News Group did not consent to the Injunction but it did not oppose the grant of an injunction based upon the revised draft that was presented to me at the outset of the hearing. Mr Dean made some technical submissions about its form.  Mr Dean also made submissions in relation to the Inspection Order on behalf of News Group, in its capacity as an interested party.   
5.	To make my orders effective I imposed restrictions on reporting of the hearing. This judgment explaining the factual background and my reasons for making the orders is however public, and nothing in the orders I have made prohibits reporting of any facts set out in this judgment. 
6.	The factual background as set out in the evidence put before me can be briefly summarised. DMK was for some years in a relationship with a wealthy divorcee. He is the claimant in the Chancery Action (“the Chancery claimant”).  The relationship broke down over two years ago.  It is DMK’s case that this happened against a background of domestic abuse.  In the course of the relationship the Chancery claimant transferred substantial sums of money to DMK, in two tranches.  In the Chancery Action he claims recovery of those sums, on the basis that the transfers were by way of loan. DMK resists the claim, asserting that the transfers were gifts. 
7.	The Chancery Action has not progressed far as yet. Particulars of Claim have been served, as has a Defence in which DMK sets out her case of domestic abuse, and a Reply in which that case is denied. There have been no hearings in the action. The statements of case have been open to public inspection, without the need for the court’s permission, as is the norm: CPR 5.4C.  But there has been no media coverage of the case, so far as DMK is aware.
8.	On the evening of Tuesday 10 May 2016 a Sun journalist visited DMK at home. He told her he had seen the court papers in the Chancery Action and that The Sun was proposing to run a two-page centre spread article on Thursday 12 May. He did not say what it was intended to publish.  DMK contacted her solicitors, who wrote to The Sun on 11 May, objecting to publication of any information about the domestic abuse alleged by DMK, on the grounds that this would represent an unjustifiable intrusion into privacy which would cause distress and damage.  The solicitors gave notice that they intended to apply to the court as a matter of urgency for DMK to be anonymised in the Chancery Action “and any other necessary orders to restrict reporting of material that will reveal our client’s identity”.  On the same day, so Mr Dean has informed me, a Sun journalist approached the Chancery claimant who responded that he did not wish to comment.
9.	In the event the Sun decided not to proceed with publication on Thursday 12th.  By letter of that date DMK’s solicitors wrote to the solicitors for the Chancery claimant to notify them of the approach by The Sun, DMK’s objection to her public identification as the defendant in the Chancery Action, and her intention to seek anonymity and other orders. 
10.	At one point it was thought that the paper meant to publish on Saturday 14 May, and DMK’s application was therefore first notified to me on the evening of Friday 13th.  It emerged that the paper did not intend to publish before Monday 16 May 2016, making it possible to deal with the matter on the Saturday.  
11.	A witness statement of DMK sets out some basic features of the case. In a Confidential Schedule she gives (1) details of the private information she seeks to protect from publication, and (2) evidence supporting her contention that publication of that information would represent an unjustified infringement of her right to respect for her private life, which would be likely to cause her substantial harm. I do not propose to set out that evidence in this public judgment, but it is not merely a matter of the claimant asserting that she would be distressed if private information was made public. The evidence is specific, goes into some detail, and includes written corroboration from independent third parties who would appear to be in a good position to make a reliable assessment. The evidence is that publication would be likely to have an adverse impact not only on the claimant’s reasonable expectation of privacy, but also on her health, and on her fair trial rights. 
12.	The principles governing applications for anonymity in litigation are well-established. The general rules, reflected in CPR 5.4C and 39.2, are that the identities of the parties to litigation as well as the allegations they make against one another are public, as are hearings. Hearings may be in private if one or more of the factors specified in CPR 39.2(3) applies.  But the court has power, and may have a duty, to order that the identity of any party or witness must not be disclosed. CPR 39.2(4) gives the court power to make such an order if it considers non-disclosure necessary “in order to protect the interests of that party.”  
13.	In JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645 the Court of Appeal recognised that the grant of anonymity is not a matter of discretion but one of obligation under the Human Rights Act 1998, where the Article 8 rights of an individual are engaged.  The process is the familiar one prescribed by the House of Lords in Re S (A Child) [2004] UKHL 47, [2005] 1 AC 593.  
14.	In JIH the court identified the applicable principles. They include the fact that in seeking to strike a balance it is necessary to recognise that not only are rights under Articles 8 and 10 engaged but also those under Article 6 and the principle of open justice.  An order for anonymity or any other order restraining the publication of normally reportable details of a case is a derogation from open justice which needs justification. Close scrutiny of the application is necessary. The key question is “whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life”.  
15.	An order for anonymity does not necessarily mean that a hearing in the case must be private. It may be a way of ensuring open justice without an unwarranted intrusion into privacy.  Often, the important safeguards secured by a public hearing can be secured without identifying the people involved: R (C) v Secretary of State for Justice [2016] UKSC 2 [18]. But stories that name individuals are more attractive than those that refer only to unidentified people: ibid; In re Guardian News & Media Ltd [2010] UKSC 1, [2010] 2 AC 697. This is not necessarily just a matter of such stories being more interesting to readers; a story which involves a matter of public interest or concern is more likely to serve the public interest if it engages the public. 
16.	It is important on any such application to keep in mind the provisions of s 12 of the Human Rights Act 1998.  No order restricting publication should be made before trial unless the court is satisfied that the claimant is likely to establish that publication should not be allowed. In this context, in this case, I treat “likely” as meaning more likely than not. The assessment that must be made is what would probably happen at a trial.  In making that assessment the court must have particular regard to the importance of freedom of expression; to the extent to which the information has or is about to become available to the public, or is or would be in the public interest; and to any relevant privacy code. 
17.	In this case I was satisfied on the evidence before me that at a trial of the Queen’s Bench claim the privacy rights of DMK would probably prevail over the Article 10 rights that are engaged and the demands of open justice.  To arrive at that conclusion it has not been necessary for me to reach a view one way or the other on the allegations of domestic abuse, and I make clear that I have not formed any such view. I have concluded that the issue is one that concerns the private and family life of DMK and the Chancery claimant, and what took place or did not take place in the home they shared at the time. It is a matter that concerns the two of them, but does not engage in any significant way any issue of legitimate public interest or concern. The information does not appear to be to public, or even known to third parties to any great extent. Its publication would be likely to cause substantial harm. 
18.	The information is known to News Group. But as Ms Michalos points out, the fact that some people know certain information does not place that information in the public domain or deprive it of its character as private information.  That is so whether or not the person in possession of the information has come by it legitimately, as here, and whether or not the possessor is, as here, a media group.  
19.	As was acknowledged in the course of argument there may be others, besides News Group, who have come to know the information as a result of inspection(s) of the court file in the Chancery Action. But there is no information available one way or the other as to whether this is so. If it is, the evidence is that the information has not yet been made public. It may be that the Injunction is effective to prevent that, if it would otherwise have happened. If not, and in any event, the position will need to be reviewed at the Return Date in the light of the information then available.
20.	I was informed that DMK intends to serve the Injunction on the Chancery claimant. He was not present or represented at the hearing. I therefore considered whether it was right to grant the Injunction, having regard to s 12(2) of the Human Rights Act and the Practice Guidance on Interim Non-Disclosure Orders [2012] 1 WLR 1003 which states at [19] that a person to be served with such an order is entitled to the benefit of s 12(2), on the basis that he has “an existing specific interest” in the order.  
21.	The Chancery claimant is not a target of the Injunction. He is not a defendant, nor is he a person said to be threatening or intending to publicise the information which DMK seeks to protect. It is not for that reason that DMK intends to serve him.  It seems questionable, therefore, whether he has the status of a “respondent” within the meaning of s 12(2).  That word is defined by the sub-section to mean “the person against whom the application for relief is made”. But assuming, without deciding, that the Chancery claimant counts as a respondent for this purpose it was my view that in the circumstances all practicable steps had been taken to notify him.
22.	The purpose of the Inspection Order is to avoid the Injunction being undermined by future inspection of documents on that file, and consequent publication, by third parties. That is a plausible consequence of the grant of the Injunction and the intended publication in The Sun.  Third party interest is likely to be provoked, and unless I make such an order the statements of case and orders made in that action will be open to unrestricted inspection. 
23.	I am assigned to the Queen’s Bench Division, and the Chancery Action is proceeding in a different Division, but I made the Inspection Order on the basis that I have power to do so, and it is just and convenient for me to do so. The divisions are for administrative convenience; the jurisdiction of the High Court is, in general, indivisible. Section 4(3) of the Senior Courts Act 1981 provides that “All the judges of the High Court shall, except where this Act expressly provides otherwise, have in all respects equal power, authority and jurisdiction.” The Chancery Action does not fall into a category excluded from this general principle.
24.	The Inspection Order does not affect the rights of the Chancery claimant, who has an unrestricted entitlement to inspect the court file in the Chancery Action. Nonetheless, the Chancery claimant would normally be entitled to notice of DMK’s application for that order. I was happy to dispense with service on him, given his stance, the need to act promptly, his right to apply to discharge or vary the order after the event, and his right in any event to challenge its continuation on Thursday.  Whether to continue the Inspection Order will fall to a Chancery judge to decide.