R v Legal Aid Board, Ex parte Kaim Todner (R v Legal Aid Board Ex parte T (A Firm of Solicitors))

The principle of open justice permits anonymity only where it is necessary to secure the proper administration of justice. The applicant must show that, without the restriction, the attainment of justice would be rendered really doubtful or impracticable.

Reputational embarrassment, consequential economic loss, and a claimant’s unwillingness to proceed publicly will ordinarily be insufficient. A court should assess the extent and duration of the proposed restriction, the nature of the proceedings, the person seeking protection, and whether there is an objective foundation for the claim. Solicitors have no special entitlement to anonymity by reason of their profession or Rules of the Supreme Court O.106 r.12.

A firm of solicitors sought judicial review of the Legal Aid Board’s suspension or termination of its franchise. It alleged that the decision was wrongful and unfair. The firm also sought anonymity and an order under section 11 of the Contempt of Court Act 1981, fearing that public allegations of dishonesty by former employees would irreparably damage its reputation.

Kay J refused anonymity, save for an interim restriction pending this appeal, but granted leave to appeal because the issue raised a point of principle. The firm appealed and additionally sought anonymity in relation to the appeal regardless of its outcome. The central issue was when a party initiating proceedings may obtain anonymity as an exception to open justice.

1. Appeal dismissed. The Court held that Kay J had correctly refused the firm anonymity. The firm’s request for continuing anonymity in relation to the appeal was also refused, and the appeal was dismissed with costs.
2. Open justice is the governing rule. Per the judgment of the Court, the exception stated in Scott v Scott [1913] AC 417 and Attorney General v Leveller Magazine [1979] AC 440 applies to anonymity as well as private hearings. A departure is justified only where necessary for the proper administration of justice, because without it the attainment of justice would be really doubtful or impracticable. The Court approved the approach in R v Westminster City Council, ex parte Castelli [1995] 7 Admin LR 840.
3. The issue is fact-sensitive, but restrictions on publicity must be kept exceptional. Relevant considerations include the degree and duration of the interference, the nature and stage of the proceedings, whether protection is sought by a claimant, defendant or witness, and whether the claim has an objective foundation. A person who initiates litigation normally accepts its public character. Parties and witnesses must ordinarily bear the embarrassment, reputational harm and consequential loss inherent in litigation; a public judgment can answer unfounded allegations.
4. The legal profession is not entitled to preferential treatment. Rules of the Supreme Court O.106 r.12 did not justify an analogy between this judicial review and disciplinary proceedings involving solicitors. Nor did the rule itself prevent publication: enforceable protection against identification required an order under section 11 of the Contempt of Court Act 1981.
5. Here, the firm’s wish to avoid permanent association with allegations of impropriety was not a reasonable basis for anonymity. It could not make anonymity a condition of pursuing its appeal. If its judicial review succeeded, the public judgment would substantially mitigate unfair publicity; if it failed, it accepted that continued suppression would not be justified.

• Court of Appeal (Civil Division) — dismissed the solicitors’ appeal against the refusal of anonymity: [1999] QB 966.
• High Court, Queen’s Bench Division (Crown Office List), Kay J — refused the application for anonymity, while making an interim section 11 order pending the appeal; granted leave to appeal on a point of principle.