Hemsworth (formerly ‘SWS’) v Department for Work and Pensions

The Applicant is in receipt of disability living allowance (DLA). In 2017 the Respondent (DWP) investigated his claim but, after interviewing him, closed the investigation and told him that no action would be taken. In the course of the investigation however the DWP had disclosed to the Applicant’s current and former employers a substantial amount of information about his health that he had confided to the DWP when first claiming DLA in 2010.

The Applicant’s solicitors sent a letter of claim alleging that the disclosures amounted to breach of confidence, misuse of private information, breach of the Data Protection Act 1998 and breach of the Human Rights Act 1998. The DWP made a Part 36 offer, which was accepted. The Applicant then proposed that his solicitors should make a statement in open court (“SIOC”). The DWP agreed with this and agreed the wording of the proposed statement but resisted the Applicant’s further proposal that the SIOC should be made under cover of anonymity. The proposed statement included extensive details of sensitive and intimate information about the Applicant’s health problems, and other disclosures about his life that were said to be private and sensitive. The Applicant made clear that he would not make a SIOC at all if he were to be denied anonymity.

In his first judgment, Warby J rejected the application to read the SIOC anonymously. In his second judgment, he considered whether, notwithstanding this outcome, the Court should protect the identity of the Applicant as being the person who had sought the SIOC.

The First Judgment

The Judge said that the Applicant’s task was to persuade him that justice demanded that he be allowed to make a SIOC containing all the intimate detail contained in the draft, whilst derogating from open justice by allowing this to be done anonymously: [37].

Warby J recited the well-known principles concerning open justice. He explained that the passage in JIH v News Group Newspapers Ltd [2011] 1 WLR 1645 [21] (itself citing Re Guardian News and Media [2010] 2 AC 697) stating that “the question is whether there is a sufficient general, public interest in publishing a report of the proceedings which identifies a party…to justify any resulting curtailment of his right…to respect for [his] private and family life”, read in context, does not impose a burden on a respondent, in every case, to identify a public interest in naming a party. The burden is on the party seeking a derogation from open justice, and the question of whether there is a specific public interest in naming a party arises only once that party has shown that the application of the usual principle would result in some interference with their Convention rights going beyond what is generally to be expected by a claimant in litigation: [23].

As to SIOCs, Warby J acknowledged that they may now be applied for in privacy cases under CPR PD53 6.2 but (c.f. Webb v Lewis Silkin LLP [2016] EWHC 1225 (Ch)) expressed unease at the suggestion that they should be routinely permitted, as they are in libel claims, and doubted whether a SIOC was justified in the present case at all: [27]-[43].

Returning to the question he had posed himself, Warby J held that anonymous vindication was not necessary in this case. The Applicant had identified 3 objectives (public acknowledgment of the DWP’s wrongdoing; having something to point to in the event of onward disclosure of the information, to prove that it should no longer be in the public domain; and proof that the DWP had acted unlawfully). All these objectives could be achieved by a public statement which identified the applicant and described the wrongdoing without setting out the detail of the private information: [44]-[48].

Warby J rejected an analogy with privacy injunctions (where the applicant is commonly anonymised). An applicant seeking a privacy injunction has no choice but to come to court and disclose their private information if they want to secure a remedy, and in those cases the conflict between open justice and the legitimate desire for secrecy is usually best resolved by anonymising the claimant, thereby allowing more detail to be given in a public judgment about the nature of the case and the court’s reasoning. In the case of a SIOC, by contrast, the applicant has already secured their principal remedies and the court is performing a supervisory, not an adjudicative role: [49]-[52]

In passing, Warby J noted that the requirement in CPR PD53 6 that an application for a SIOC  be made by a Part 23 application notice is questionable in a case which has settled before the issue of proceedings, and that use of a Part 7 or Part 8 claim form may be more appropriate.

The Second Judgment

The Second Judgment dealt with the Applicant’s submission that he should not be publicly identified as the person who had made the unsuccessful application for an anonymous SIOC. In support of this submission, the Applicant was permitted to adduce further evidence on the likely consequences if his identity were to be revealed.

The question for the court was whether the Applicant had now adduced clear and cogent evidence which established that there were exceptional circumstances showing that it was strictly necessary for his name to be withheld from the public in perpetuity. This was a different issue from the issue raised by the SIOC application itself, and had to be determined on its own merits: [10]-[11].

The content of the First Judgment had already been the subject of submissions before it was handed down, and certain details had been eliminated so as to respect the Applicant’s privacy rights: [3]-[4]. Nevertheless, the Applicant submitted that the contents of the First Judgment were such that identifying the Applicant by name would pose a real risk to his health and private life, whereas there was no significant specific public interest in naming him: [15]-[17].

Warby J dismissed as speculative the Applicant’s concern that his ex-partner might try to use the First Judgment against him in some way. He accepted that the First Judgment contained personal information about the Applicant’s health, his receipt of benefits, his status as a person suspected of a wrongful benefits claim, and his dealings with his employer, the disclosure of which may –  in isolation or combination – engage Article 8. However, he noted that, while the concerns expressed were predominantly reputational in nature, most of these matters could not begin to justify a claim for defamation. They did not reasonably attract any stigma and the applicant’s concern that third parties might unreasonably infer matters that were detrimental to his reputation was speculative and in any case should not be given too much weight. Viewed as private information, the material was anodyne, bland and general, and its disclosure would be minimally intrusive: [24]-[28].

Warby J gave separate consideration to the disclosure of the DWP investigation, which might imply that he was suspected of wrongdoing and thereby engage his privacy rights for a time. However the judgment made clear that the investigation was closed with no further action and no reasonable reader could conclude that any incriminating facts had been found: [29]-[30].

Finally, Warby J considered the evidence about the Applicant’s current health, his prognosis, and the concerns expressed about the impact of identification. He held that it fell well short of the clear and cogent evidence that is necessary to derogate from open justice. The application was therefore dismissed.

In the Second Judgment Warby J again re-iterated his view that the reference in JIH and Guardian News and Media to the question being whether there is a “sufficient general public interest” in naming a party, is not an exhaustive statement of the relevant principles, but a subsidiary principle which only comes into play if and when the party seeking anonymity has shown that the application of the usual rules about open justice would result in some interference with their Convention rights going beyond what is generally to be expected by a party to litigation: [21]-[22].

The Applicant remains anonymised on a temporary basis while there is a possibility of one or both judgments being challenged on appeal.

This is the first case where the Court has considered the circumstances in which a person might make a statement in open court (SIOC) anonymously.