JIH v News Group Newspapers Ltd

Anonymity in privacy proceedings is a derogation from open justice and cannot be granted merely by consent. At the return date, the court must independently decide whether anonymity and reporting restrictions remain strictly necessary. The court must balance the claimant’s rights under Article 8 against the public interest in an open report of proceedings and the Article 10 rights of the public. The court should disclose as much information as can safely be disclosed without defeating the protective purpose of the order. Where identifying the claimant is compatible with effective protection of the private information, the claimant should be named, although the information itself may remain confidential.

The claimant brought proceedings against a national newspaper publisher seeking an injunction restraining publication of private information. Nicol J granted an interim injunction, anonymity and ancillary reporting restrictions without publishing the judgment. The order was continued by consent. At the return date, the parties sought a further consent order preserving anonymity and withholding all information about the subject matter of the action. The court also considered representations from other media organisations. The central issues were whether the claimant should remain anonymous, whether the subject matter of the injunction could be identified, and what procedural material should be supplied to third parties affected by the order.

1. Consent and open justice. The court cannot make anonymity or reporting orders merely because the parties consent. The parties may compromise their own Convention rights, but cannot waive the rights of the public or determine the court’s duties towards third parties.
2. Independent review. An anonymity order made on an interim or without-notice application does not continue indefinitely. At the return date the court must reach its own view, on the facts then known, as to whether each derogation from open justice remains necessary.
3. Applicable balance. The court must first determine whether Article 8 is engaged. It must then assess whether there is sufficient general public interest in identifying the claimant to justify the resulting interference with the claimant’s and family’s private and family life. Where anonymity is said to be necessary to secure justice, the claimant must satisfy the strict-necessity standard.
4. Extent of disclosure. Information about the subject matter may be disclosed at different levels of generality, ranging from no information, through the general nature of the information, to details. The court should select the least extensive derogation that gives effective protection. In this case, identifying both the claimant and the subject matter would probably defeat the purpose of the injunction. Nevertheless, withholding the subject matter in the confidential schedule was sufficient protection, and anonymity was not strictly necessary.
5. Outcome. The claimant was not granted anonymity. The court made the revised order agreed by the parties, prohibiting disclosure of information identifying or liable to identify the subject matter of the proceedings. The claimant’s name was to remain anonymised pending any application for permission to appeal.

The judgment describes an interim order made by Nicol J on 13 August 2010 and continued on 20 August 2010. This court independently reviewed the derogations from open justice at the return date and refused to continue anonymity.