Hirschfeld v McGrath

Anonymity is a derogation from open justice and an interference with Article 10 rights. It should be ordered only where necessary, after considering whether a less restrictive alternative is available and balancing the public interest in identification against Article 8 privacy rights. The court must also ensure that any injunction is clear and precise. An interim judge may apply a lower threshold where the respondent has not been heard, without that affecting the correctness of the interim order. In cases involving confidential marital information, undertakings may protect the substance of the claim, while anonymity may properly be refused where publication of the judgment could facilitate jigsaw identification, particularly in connection with a proposed publication.

The claimant and defendant were formerly married. The claimant obtained an interim injunction and anonymity order from Teare J, sitting out of hours, after learning that the defendant proposed to publish an autobiographical book. The defendant was not heard at that stage but appeared on the return date and offered undertakings concerning the parties’ intimate former relationship, family life, the claimant’s health and information in a confidential schedule.

The issue before Tugendhat J was what information should be made public and whether the anonymity order should continue.

1. The defendant’s undertakings substantially protected the confidential substance of the claimant’s claim. Marital confidences have long been protected by established principles, including those recognised in Argyll v Argyll [1967] 1 Ch 302.

2. The interim order made by Teare J was not criticised. Because the defendant had not been heard, Teare J was entitled to apply a lower test at the interim stage, as recognised in Cream Holdings Ltd v Banerjee [2005] 1 AC 253; [2004] UKHL 44. The return-date court had to apply the ordinary and more exacting approach.

3. The governing principles on anonymity were those stated in JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 and considered in Ntuli v Donald [2010] EWCA Civ 1276. The general rule is that parties’ names are included in judgments and orders. Anonymity is exceptional and must be justified by necessity, with the least restrictive effective measure being selected. Public figures receive no special treatment.

4. The proposed book created a risk of jigsaw identification if further details were published. The court also had to avoid an order lacking the clarity and precision required by Times Newspapers Ltd v MGN Ltd [1993] EMLR 443. Since the claimant did not seek to restrain publication of the book, the order had to avoid unnecessary interference with the defendant’s rights.

5. The anonymity order was therefore not continued. Only the details contained in the judgment and order were made public, and the defendant’s undertakings were accepted.