SWS v Department for Work and Pensions [2018] EWHC 2282 (QB)

Open justice principle reinforced in a case about application for anonymity of statement made in open court.

Background (numbers in square brackets refer to paragraphs in the judgment)

The initial claim was brought by the Applicant, ‘SWS’, claiming that the Defendant, the Department for Work and Pensions (“DWP”), made wrongful disclosures of information about his health, which the DWP had obtained when he made benefits claims. A Part 36 offer was accepted and the DWP apologised for the damage and distress caused for the breach of his private information.

As part of the settlement, on 25 July 2017 SWS went on to make an application pursuant to PD53 6.1 for permission to make a statement in open court (“SOIC”). The issue was whether the applicant should be allowed to make such a statement anonymously. Pending judgment Warby J made an interim order for the applicant to be given the pseudonym SWS "until after judgment on the application or further order in the meantime".

After hearing argument, Warby J refused permission to make the anonymous statement, on the basis that:

"… I am not persuaded that the derogation from justice which anonymisation of the draft SIOC would involve is a measure that is either necessary to do justice, or proportionate to that or any other legitimate aim pursued by the applicant. A SIOC which names the claimant and explains the facts without going into detail is one that is fair and proportionate."

Although permission to appeal was not granted, the question remained whether anonymity should be preserved pending the determination of an application to the Court of Appeal for permission to appeal. Warby J allowed the anonymity to continue on the basis that “there was little between the parties in that respect” [6].

The issue

The matter at issue was whether anonymity should be preserved “come what may” [7]. Warby J accepted that, as suggested by Aidan Eardley for the Defendant, the question was whether the claimant had adduced "clear and cogent evidence" which establishes that there are "exceptional" circumstances which show that it is "strictly necessary" for his name to continue to be withheld from the public in perpetuity [10].

The application concerned the extent to which the principle of open justice should prevail where competing considerations, such an individual’s privacy, are in play.

Submissions

Ian Helme, acting for SWS, submitted that continued anonymisation was necessary because of a "real risk" to SWS’s health and private life if he was named, whereas "there is no significant specific public interest in naming him". Further, Mr Helme asserted that identification at this stage in these circumstances would represent a breach of his client’s privacy rights. Mr Eardley, acting for the DWP, suggested that the applicant’s identity or health did not even have to be considered at this stage since the starting point is always the open justice principle. This involved naming the parties in litigation unless the applicant has “surmounted the challenging threshold requirements for justifying any derogation from that starting point” [18].

Decision

Considering all the evidence, Warby J held that the anonymity order should be lifted 21 days after judgment. This decision was made on the basis that “open justice is always the starting point”, and that the evidence fell well short of the “clear and cogent” threshold that is necessary to depart from the open justice principle [21]. Warby J considered the evidence of the public knowing about SWS’s dealings with his employer, his health, and receiving state benefits as “anodyne, bland and general”, and its disclosure “minimally intrusive”.

Whilst this was a misuse of private information case, Warby J went on to state that, putting the DWP investigation aside, the information revealed about the applicant in the first judgment – such as suffering poor health, claiming benefits, and finding it hard to gain employment – was likely to be more deserving of sympathy in the eyes of ‘right-thinking people’ than inciting hatred or stigma. The information, combined or otherwise, would be unlikely to reach the threshold of ‘serious harm’ as required in s.1 (1) Defamation Act 2013 [25]. Warby J used the serious harm test in defamation cases to demonstrate the unobtrusive nature of the information, and the unlikely harm of its disclosure to the applicant.

In terms of the DWP investigation itself, Warby J concluded that because the investigation was made clear to be a fact-finding process, this did not include the applicant’s privacy rights. Reasonable members of the public do not equate suspicion with guilt (Khuja v Times Newspapers Ltd [2017] UKSC 49 [2017] 3 WLR 351 [32], Lord Sumption).

Further, Warby J noted that the following statement of principle from JIH v News Group Newspapers [2011] EWCA Civ 42 [2011] 1 WLR 1645 is subsidiary to the open justice principle:

"where the Court is asked to restrain the publication of the names of the parties… 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."

This subsidiary principle should only come 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. The burden of adducing evidence to justify a derogation from open justice was confirmed by the court to always fall on the applicant in such an order. Warby J summed up the position thus: “Open justice is always the starting point; derogations can only be justified to the extent that they are necessary” [22].

Comment

This judgment represents a refusal by the court to allow privacy rights to expand further than they are due. In light of the recent Cliff Richard ruling which has highlighted the significance of privacy, this judgment serves as a reminder that the open justice principle is central to the functioning of our legal system.

The case is unusual in that statements in open court are usually used as a means of vindication for the applicant. Yet in this case, it is unclear what benefit the applicant could have gained by making the statement anonymously. It is somewhat ironic that the applicant is likely to have garnered more attention by making an anonymous application for a statement in open court than if they had not done so and been content with the Part 36 settlement (similar to what is known as the Streisand Effect).