Reference:  EWHC 1148 (QB);  EMLR 29
Judge: Tugendhat J
Date of judgment: 3 May 2012
Summary: Privacy and Confidence - Anonymity - Pre-action application - Notice to Defendant - CPR Part 16 - CPR Practice Directions 7A and 16 - CPR Rule 5.4C
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Instructing Solicitors: Atkins Thomson for C; RPC LLP for D
C sought to bring proceedings for misuse of private information and/or breach of confidence in relation to a photograph taken of her at an event which was published in the Daily Mirror. Prior to issuing the Claim Form, C applied to the Master for an order permitting her to issue under the alphabetised title “CVB” and to give her address as that of her solicitor. The Master granted the order, as well as other orders relating to access to the court file under CPR r.5.4C. C had already been in pre-action correspondence with D’s legal department but did not give D notice of the application.
D applied to set aside and/or vary the Master’s order on the grounds that it was improperly made without notice and that it was an unjustifiable derogation from open justice. D submitted that the application raised an important issue of principle as to the proper practice to be followed by applicants seeking anonymity in the claim form. C argued that there was little guidance in the rules on the issue but that the practice commonly adopted in the QBD was for pre-action anonymity orders to be sought and obtained without notice in front of a Master.
A number of national media organisations wrote to the court supporting D’s application
(1) Whether, as an issue of principle, claimants should be required to give notice when seeking pre-action anonymity on the claim form.
(2) Whether, in this case, the order made by the Master should be continued, and if so, whether it should be continued in the form in which it was made.
(1) An order permitting C to be referred to by the letters “CVB” is not in itself an injunction or an interim remedy. Rather, it is an order for a dispensation from the requirements of CPR Part 16 that the name and address of the Claimant be given in the claim form (a “r.16 order”). The order is permissive only. The practical effect of r.16 orders is that if D, or anyone else who knows the identity of C, publicly discloses C’s identity, they are unlikely by that fact alone to be in contempt. However, if the disclosure of C’s identity does amount to an interference with the administration of justice, or some other tort, they will not be able to rely by way of defence on the fact that C’s identity is a matter of public record on the claim form.
It therefore cannot be said that relief is granted, or is granted ‘against’ D or anyone else. Accordingly, there is no requirement under s.12(2) HRA 1998 or CPR r.23 to give notice to an intended defendant, or anyone else, of any application to apply for a r.16 order. However, any person affected by a r.16 order made without notice can apply to discharge the order and there is no time limit to this.
(2) The Master’s order was wider than necessary in that it provided that “There be substituted for all purposes in these proceedings in the place of references to the Applicant by name and whether orally or in writing, references to the letters ‘CVB’”. This went beyond the protection envisaged by CPR r.5.4C and Part 16. However, the Judge held that the order that C be dispensed from giving her name and address on the claim form should be continued.
The procedure for applying for dispensation from the requirements of PD 16 and for applying for CPR r.5.4C has hitherto not been addressed by the court and little assistance could be obtained from the rules and guidelines. Tugendhat J advised that the proper procedure should in future be set out in the CPR or a Practice Direction and stated that he had drawn the attention of those responsible for considering such matters to the judgment in this case.