CWD v Nevitt & Ors

The claimant (“C”) brought a claim in defamation, misuse of private information and harassment against three defendants. The first and second defendants were sisters (“Ds 1 and 2”/ “the Ds”) and the third defendant (D3) was their brother.

The claim concerned D2’s allegation that, on the night of 24 August 2017, C raped her and D1’s allegation that, earlier on the same night, C sexually assaulted her (together “the first and second defendants’ allegations”). In April 2018, D2 reported the claimant to the police and, in July 2018, D1 did so. Following an investigation, on 4 February 2019 the police told C that they would take no further action.

C denied the first and second defendants’ allegations. The Ds averred that their allegations were true.

Prior to the issue of the claim, on 15 March 2019, C made an application without notice to the defendants for an interim injunction to restrain what was alleged to be the harassment of C by the Ds and the misuse of his private information.

Dingemans J refused to grant an injunction: CWD v MXN and others [2019] EWHC 2553 (QB). However, he granted an anonymity order in the following terms permitting C to issue the proceedings anonymously.

The Ds sent an email to the court asking for their anonymity to be lifted. On 16 October 2019, Warby J made directions for further consideration of the anonymity order. The matter came on for hearing before Nicklin J on 21 November 2019. At that hearing, C made an oral application for a reporting restriction order and opposed the Ds’ request to lift their anonymity. Nicklin J gave directions for the issue and service of applications in respect of those issues, as well as giving case management directions.

Two applications were before the Court: i) an application by the Ds by which they sought to lift their own anonymity as defendants in the proceedings; and ii) an application by C for a reporting restriction order to be made under s.11 of the Contempt of Court Act 1981 to protect his anonymity in these proceedings.

The Judge also addressed the question whether any variation should be made to the order of Dingemans J (as he then was) made on 15 March 2019, insofar as it permitted the pseudonymisation in the proceedings of C and D3.

PA Media opposed the application for a reporting restriction order and submitted that the main thrust of C’s application for anonymity is to protect his reputation rather than his privacy, relying on the rule against prior restraint in Bonnard v Perryman [1891] 2 Ch 269.

1. Should the Order anonymising the Ds be varied?
2. Was continued anonymization of D3 necessary?
3. Should C remain anonymous?
4. Should a reporting restriction order be granted?

1. C initially opposed the lifting of the Ds’ anonymity on the basis of the risk that naming them would indirectly enable readers to identify him (by a process referred to as “jigsaw identification”). By the time of the hearing C accepted that jigsaw identification was no longer a risk because any statements by the Ds identifying him as the person against whom the allegations were made had been removed; and the Ds had given a contractual undertaking, until the court determined the claim, not to identify C in connection with their allegations or these proceedings. The parties agreed that the anonymity order should be varied in such a way as to lift anonymity in respect of the Ds and the Judge made an order that they may be identified.
2. There was no application before the Court for the identification of D3. However, he was identified in Dingemans J’s judgment as the older brother of the Ds and C had accepted that the Ds could be identified in the proceedings without that giving rise to such a risk of jigsaw identification of himself, and the same necessarily applied to D3, given his acknowledged relationship to them.
3. Having regard to the fact that C had a strongly arguable case that his right to private life was engaged, and to the principle now articulated by the CA in ZXC v Bloomberg LP [2020] EWCA Civ 611 that those who have simply come under suspicion by an organ of the state have, in general, a reasonable expectation of privacy in relation to that fact, the r.16 order anonymising C remained a necessary derogation from open justice.
4. The Judge identified the distinction between a CPR r16 order and a reporting restriction order and held that there were three possible tests – (i) the rule in Bonnard v Perryman, (ii) the ultimate balancing test, subject to s.12(3) of the HRA or (iii) the ultimate balancing test alone – applicable in determining this application for a reporting restriction order? Weighing the Convention rights that were in issue, the Judge concluded by reference to (iii) the ultimate balancing test that she should not grant the reporting restriction sought by C. She would have reached the same conclusion with less hesitation, were the test (ii) i.e. the same test subject to s12(3) of the HRA. If, contrary to the Judge’s conclusion, (i) the Bonnard v Perryman rule applied, it would inevitably have followed that C’s application should have been refused.

The context for this decision is an increasing focus by the Court on the terms of, and strict necessity for, any derogations from open justice. While anonymity and accompanying restrictions on the disclosure of information about a claim are typically granted by the Court at the start of proceedings, this ruling underlines the extent to which they will be kept under review, and their effect carefully  scrutinised in the particular circumstances of the proceedings.