XJA v News Group Newspapers Ltd

Anonymity in privacy proceedings is an essentially case-sensitive question. The court must balance the claimant’s and family’s rights under article 8 against article 10 rights and open justice, imposing only restrictions necessary for protection. At the interim stage, the court may consider the likely effect of identification on a later public judgment, particularly where revealing the nature of the information would itself disclose the information that the injunction protects. A consent order does not remove the court’s duty to consider the effect of anonymity on open justice and third parties. Where there is no sufficient general public interest in identifying the claimant, anonymity may properly continue.

The claimant sought an interim injunction restraining publication of information said to amount to a misuse of private information. Calvert-Smith J granted relief, including anonymity. At the return hearing before Sharp J, the defendant sought adjournments to investigate the claimant’s contention that the central information was false. The parties subsequently agreed a consent order continuing the interim relief until trial or further order.

The court was asked to approve provisions derogating from open justice, including continued anonymity. The central issue was whether the public interest in identifying the claimant justified the resulting interference with his and his family’s private and family life.

1. Consent order and open justice. The court approved the consent order, but the parties’ agreement did not determine the court’s duties or the rights of third parties. The court was required independently to consider whether the agreed anonymity provisions were justified.
2. Applicable approach. The question was case-sensitive. The court had to consider the competing Convention rights of the parties and impose the least restriction on open justice consistent with protecting the claimant’s rights. The absence of a full return-day hearing did not prevent consideration of the likely future course of the proceedings.
3. Future public judgment. Identification at the interim stage might restrict what could realistically be said in a later public judgment. That consideration was particularly important where, as a matter of reality, describing the nature of the information would reveal the private information itself. The possibility of a later trial therefore formed part of the overall circumstances.
4. Application. The claimant’s article 8 rights were engaged both by the subject matter of the action and by the fact that he had brought proceedings and obtained an injunction. The alleged falsity of the central information was relevant to the seriousness of the interference, although its truth remained unresolved. The bare fact of a privacy injunction served no sufficient public purpose and would instead encourage damaging speculation.
5. Identification would unjustifiably interfere with the claimant’s and his family’s private and family life. Those interests outweighed the public’s article 10 rights and the requirements of open justice. The anonymity and reporting restrictions in the agreed order were therefore continued until trial or further order.