Reference:  EWHC 1229 (Ch);  EMLR 24
Court: Chancery Division
Judge: Henderson J
Date of judgment: 19 Jun 2009
Summary: Confidentiality - Private information - Anonymity - Open justice - Order for anyonymity sought after public hearing - Tax and financial information
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Instructing Solicitors: Applicant, by Direct Access; Respondent, by HMRC solicitor
B challenged a tax assessment and succeeded before the HMRC commissioners. The HMRC appealed to the High Court. The hearing took place in public. The claim was dismissed. Before judgment was handed down B applied for orders anonymising the judgment and forbidding HMRC from identifying her publicly. She asserted that linking her name with a tax dispute would be detrimental to her career and personal life. She did not seek any general reporting restriction. HMRC resisted the application, arguing that the case had been heard in public; no reporting restriction was or could have been obtained in advance; and B’s grounds for anonymity lacked substance.
Whether the court should exercise its discretion to anonymise B and restrain HMRC from identifying her after a public hearing
Dismissing the application:
(1) B had a reasonable expectation of privacy in respect of financial and tax affairs; however
(2) The potent principle of open justice would have led to the rejection of a pre-hearing application for anonymity, had one been made; only in truly exceptional circumstances would taxpayer confidentiality prevail over open justice;
(3) The importance of publicity for a High Court judgment on deductibility of expenses reinforced the case against anonymisation;
(4) B’s grounds for claiming privacy were not exceptional but weak, as there was nothing inherently sensitive or embarrassing about the information in question;
(5) Although there was no evidence the public hearing had attracted actual publicity, the touchstone was whether it was held in public; (6)
The orders sought would be difficult to police.
One cannot help having some sympathy for the applicant in this case. By having asked the court for its assistance in reducing the chances of being identified as the subject of litigation she has ended up with a public judgment which not only names her but draws attention to her attempt to conceal her identity. The lesson for any litigant who wishes to conceal their involvement in litigation is clear: be absolutely sure that you have good grounds for making the application, make it as early as possible and ensure that the order sought is practicable.