Dismissing the application
The As could not begin to establish by clear and cogent evidence that anonymisation, a derogation from the general principle of open justice, was strictly necessary to secure the proper administration of justice. The Judge based his conclusion on a number of reasons:
(1) Identification of the individuals would not prejudice ongoing criminal investigations. Even if there was a risk of such prejudice, this would have been a point only for the individuals at risk of being the subject of an investigation, not for those whose emails had simply been provided to the authorities.
(2) D had referred to misleading reporting connecting all the names with the manipulation, but, given the clarification given to the in open court about who had in fact been involved, it appeared to the Judge that open justice would make uninformed and inaccurate reporting less rather than more likely.
(3) An analogy with regulatory investigations was inapt: these do not take place in a public forum, and open justice does not apply. Further, none of the individuals had argued that they had been incorrectly named, this fact meeting the concern that allowing them to be named at this stage in proceedings was unfair.
(4) There was no general exception to the principle of open justice, to protect non-parties from identification in proceedings to avoid the risk of reputational harm, this being what the submission on unfairness amounted to. The Judge considered the practical consequences of allowing anonymisation in cases where allegations of wrongdoing are made, suggesting that the approach argued for would soon subvert open justice.
Although the application fell at the first hurdle, the Judge went on to set out three principal additional reasons for which he would still have concluded that the order sought was not necessary for the proper administration of justice.
(5) The order proposed would have impeded the C in its preparation and presentation of the case, and would have been inimical to the overriding objective under the CPR. The C would have suffered prejudice and inconvenience in devising and implementing a suitable code.
(6) The identity of some of the individuals was already in the public domain; an anonymity order in relation to those already named would be absurd.
(7) The litigation was a test case, with the D’s involvement in manipulation of LIBOR only part of a bigger picture involving other banks. There was a legitimate public interest in the true picture emerging.
Finally, the Judge held that the wide-ranging nature of the anonymity order sought was disproportionate.