England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/10/2013

Mr Justice Tugendhat:

1. On 4 October 2013 the Judge sitting in the Interim Applications Court granted a nondisclosure order upon the application of the Defendant. It provided that the Order was to last until the morning of 8 October 2013. At that time I heard an application to continue the order. I refused the application to continue it, and the order has accordingly lapsed. I stated that I would give reasons for my decision in writing, as I now do.

THE PROCEEDINGS

2. On 2 March 2012 the Claimant issued a claim form. She claimed damages for assault.
3. On 6 July 2012 the Master made an order that on the court documents there be substituted for the parties' names the initials ABC and DEF respectively ("the anonymity order"), and that there be other derogations from the principle of open justice. The order was made on the application of the Claimant and without notice to the Defendant.
4. On 9 July 2012 the Claimant served Particulars of Claim. On 9 August 2012 the Defendant served a Defence denying the Claimant's allegations.
5. A number of procedural steps were subsequently taken, and a number of case management orders made. On 12 July 2013 an order was made that the parties exchange witness statements by 4pm on 2 August. The Defendant was not willing to exchange witness statements. He gave reasons for this in correspondence, but did not apply to the court for a variation of the order of 12 July 2013.
6. On 16 August 2013 the Claimant obtained an order without notice to the Defendant that unless the Defendant exchanged his witness statement with the Claimant by 4pm on 30 August 2013, the Defence be struck out and the Claimant be at liberty to apply for judgment in default. On 13 September judgment was entered for the Claimant against the Defendant for damages to be assessed.
7. The Defendant's case is that he was unaware that the order of 16 August had been made, and that it ought not to have been made for a number of reasons, both substantive and procedural. Accordingly it is his case that the default judgment of 13 September must also be set aside. Whether he is right about that is not an issue before me today. There is an appointment fixed for that to be decided later this term.
8. On 19 September 2013 the Claimant applied without notice for the anonymity order to be set aside in so far as it relates to the Defendant, and the Master did set it aside to that extent. The Defendant complains that that application should not have been made without notice. I express no view on that.

THE APPLICATION FOR A NON-DISCLOSURE ORDER

9. The effect of the non-disclosure order of 4 October is to prohibit the Claimant from communicating to any third party (not being a legal representative of either party) the fact of the default judgment entered against the Defendant, and of communicating the identity of the Defendant as a party involved in the proceedings.
10. The most notable feature of the non-disclosure order of 4 October, and the application for it, is that the order is not made in the form of the Model Order set out in the Practice Guidance: Interim Non-Disclosure Orders issued by the Master of the Rolls in August 2011 ([2012] 1 WLR 1003) and set out in the White Book (2013) and elsewhere, and the application does not appear to have made in accordance with the Guidance. The reference in the White Book is to Vol 1 para B13-001.
11. In the application before me the Defendant also fails to address the requirements of that Guidance. There is simply no evidence before the court that such an order is necessary, or that the Defendant has considered the guidance of the Master of the Rolls in JIH v News Group Newspapers Limited [2011] EWCA Civ 42; [2011] 1WLR 1645 para [21].
12. The guidance of the Court of Appeal is;

"(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2) There is no general exception for cases where private matters are in issue.

(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.

(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8)... (9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary. (10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one."

13. The only matters which the Defendant refers to in his evidence in support of the application for a non-disclosure order are the sensitivity of the allegations that the Claimant makes and his standing in society. For the guidance on these two matters see principles (2) and (6) referred to by the Court of Appeal in JIH.
14. I am not on this application asked to consider whether the order should have been made without notice on 4 October. However, I record that there is no information before which would have enabled me to consider that question. That is not satisfactory, and it would not have happened if the Model Order had been adopted.
15. The Model Order requires the applicant to undertake to cause a witness statement to be made confirming the substance of what was said to the Court by the applicant's counsel: Schedule B(4) as set out in the White Book at para B13-050. I and other judges have repeatedly expressed concern about applications made without notice in breach of CPR Part 25 and Practice Direction 25A para 4.3. See eg O'Farrell v O'Farrell [2012] EWHC 123 (QB) paras [61]-[70]. The position is all the more important where, as here, the Human Rights Act 1998 s.12 applies. In the absence of the information which should be before the court, I make no finding that there was a breach of those provisions in this case. I simply record that there is nothing in the files before me which could have provided justification for a without notice application.
16. Mr Hill-Smith submitted that there was no need for evidence of the kind referred to in JIH because the anonymity order of 6 July 2012 was the basis on which both parties had proceeded, that the Master had clearly been satisfied of the need for a derogation from open justice, and that order should not have been discharged at all, and in particular it should not have been discharged, as it was, by a further application made by the Claimant without notice to the Defendant.
17. This submission is fundamentally unsound. An anonymity order granted by a Master is not a non-disclosure order. A Master has no jurisdiction to grant an injunction, and that of course includes a non-disclosure order. For a discussion and explanation of the difference between an anonymity order and a non-disclosure order see CVB v MGN Ltd [2012] EWHC 1148 (QB); [2012] EMLR 29 paras [47]-[50]. Even if the anonymity order had not been discharged, but remained in force, it would not have had the effect of a non-disclosure order. So the fact that it was discharged on an application made without notice to the Defendant does not assist the Defendant in his application for a non-disclosure order.

CONCLUSION

18. It is for these reasons that I dismissed the Defendant's application for a non-disclosure order. Nothing in this judgment should be taken as an expression by me of a view on the merits of any of the substantive or procedural issues which remain outstanding between the parties.