Anonymity for pole dancers

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Private hearing; but when to be anonymised?

 

If you have to tell a client whether their family court hearing will be dealt with anonymously or not (ie their names to remain confidential), the best thing they can do is toss a coin – certainly if their hearing is before a High Court judge. Hearings of family cases under Family Procedure Rules 2010 (FPR 2010) are – says a court rule (FPR 2010 r 27.10) – to be ‘in private’. That does not tell you whether your name will be public or not, save in the case of a child and (probably) of parents in children proceedings. Just because your case is heard in private is no guarantee your name will be kept secret.

 

For example, of all the first instance financial relief cases in front of High Court judges, over the past ten months, seventeen were reported; and of those seventeen, only four were anonymised. The remaining thirteen were all between named parties. Because the hearing is in private does not mean the parties will be anonymous. This proposition – the link between a private hearing and anonymity – draws support from CPR 1998 r 39.2 which treats as one step that parties may seek an order for a hearing (or part of it) to be in private (r 39.2(3)). Anonymity is dealt with as a separate application to the court under CPR 1998 r 39.2(4)).

 

In the Court of Appeal your name will unquestionably be public (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426), unless for exceptional reasons – see summary in CPR 1998 r 39.2(3) – you can persuade a Lord/Lady Justice you should be anonymous; or that the appeal is by or on behalf or about, a child or, perhaps other protected parties (CPR 1998 Pt 21).

 

Application for anonymity

 

So, on what basis can a party seek to be anonymous in civil proceedings? This was considered in detail by Nicklin J in AAA (and others) -v- Rakoff (and others) [2019] EWHC 2525 (QB) (30 September 2019). The case concerned claimants, nine of whom were dancers and at a club known as Spearmint Rhino (the tenth claimant).  They brought proceedings seeking to restrain the defendant from using video footage it had obtained within the clubs. The first defendant was the chief executive of the second defendant, a group called ‘Not Buying It’, which campaigns against sexual entertainment venues.

 

The finer CPR 1998 aspects of the case can be found at ‘Service of the claim form issues, anonymity, expedited trials and … Spearmint Rhino’ . This article looks at the question of anonymity which was the preliminary issue in the case dealt with by Nicklin J.

 

Nicklin J explained that any application for anonymisation has two distinct parts: first an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party’s name with a cipher under CPR 1998 r 16.2 (‘a CPR 16 Order’: perhaps PD16A para 2); and, secondly, a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders) of 1 August 2011 [2012] 1WLR 1003 (INDO). Though the law outlined here applies in family proceedings there is no equivalent to CPR 1998 PD16A para 2).

 

Nicklin J draws on the INDO guidance, especially paras 9 to 14. He then moves to a tour de force to summarise the fundamental jurisprudence which underlies the open justice principle:

 

‘[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.’

 

The judge cited recent case law, namely R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 and Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 (considered further here). Both of these cases were concerned with release of court material to non-parties. Elemental to both was the open justice principle on which English courts operate.

 

Open justice principle and anonymity

 

From these two important cases Nicklin J concluded:

 

‘[29] … That there are principally two categories of case in which derogations from open justice can be justified: maintenance of the administration of justice and harm to other legitimate interests. The first category of case is where, without the relevant order being made, the administration of justice would be frustrated: Attorney-General -v- Leveller Magazine Ltd [1979] AC 440, 457E…[and see Scott -v- Scott [1913] AC 417 per Viscount Haldane LC at 437-439].’

 

The second category of derogation – relating mostly to private matters – was summarised by Nicklin J as follows:

 

‘[30] Restrictions on open justice to protect the legitimate interests of others raise more difficult issues. The starting point is the recognition that open justice (and probably of greater practical significance, the privilege that attaches to media reports of proceedings in open court) will frequently lead to some interference with the legitimate interests of parties and witnesses….’

 

The judge has form in this area of work. In AAA he provides a text-book summary of the law on open justice principles. And he refers a couple of times to Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB), (15 February 2018). When you look up that case you discover Nicklin J is the judge there as well. In both cases he shows how firm is his grasp of the relevant case law.

 

The conclusion for AAA and her fellow pole-dancers was that they would be denied anonymity (it does not seem they claimed a private hearing). The anonymity remains pending any appeal, and pending the disposal of that appeal if permission is given for it.

 

Khan and domestic abuse

 

From a family lawyer’s stand-point Khan is instructive. It was a harassment case between two brothers where both were refused anonymity, and were told their case would be heard in open court. Nicklin J made the following comment, which may be instructive when it comes to domestic abuse cases in family courts:

 

[90] … In most harassment claims, the disclosure of private information in open court is simply an incidence of the litigation and that is no different from any other civil case. But, unlike privacy claims, in most harassment claims there is normally no risk that the administration of justice will be frustrated by the proceedings being heard in open court…. An anonymity order therefore cannot be justified on that basis. If there are discrete pieces of the evidence, that engage significant Article 8 rights, then the way to deal with that is not by blanket anonymisation, but by [targeted measures]. Put simply, any greater derogation from the principle of open justice is not necessary.

 

If anonymity is denied to two brothers, why not the same for couples who have been living together, and one (or both) make allegations that the other has been abusive? Unless the privacy interests of children are engaged (concerning which see Keene LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 at [120]-[122]), there is no reason why domestic abuse cases should be heard in secret; and probably every reason why they should be heard in open court.

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