CVB v MGN Ltd

A CPR r.16 order permitting a claimant to issue proceedings anonymously is permissive, not an injunction or interim remedy. An application for such an order need not ordinarily be served on the intended defendant under Human Rights Act 1998 s.12(2), because the order is not relief granted against that person. The court must nevertheless apply the principles governing derogations from open justice and grant anonymity only where necessary and to the extent necessary. The order must remain under review. Where disclosure of identity in court documents would materially undermine private and family life, a limited anonymity and court-file access order may be continued, while wider restrictions must be separately justified.

The claimant brought a privacy claim against a newspaper publisher concerning photographs allegedly taken and published without consent. Before issuing the claim, she obtained an order from the Master dispensing with the requirement to state her full name and address on the claim form and restricting access to parts of the court file. The defendant applied to set aside or vary that order, arguing that it had been made without notice and derogated unjustifiably from open justice.

The court considered the proper procedure for applications under CPR r.16, the effect of Human Rights Act 1998 s.12(2), and whether the claimant had established a sufficient justification for continuing the order.

1. Nature of the order. A CPR r.16 order permits proceedings to be issued without the claimant’s full name and address appearing in the claim form. It is permissive only. It is not an injunction, a non-disclosure order, or an interim remedy under CPR Part 25. It does not itself prohibit publication or make disclosure contemptuous.
2. Notice and jurisdiction. Because a r.16 order is not relief granted against the intended defendant, Human Rights Act 1998 s.12(2) and CPR r.23 did not require notice to be given before the application. The procedure approved in R v Westminster City Council, ex parte Castelli was appropriate. Any person affected by an order made without notice may apply to discharge it, without a prescribed time limit.
3. Open justice and proportionality. Anonymity and restrictions on access to court documents derogate from open justice and may interfere with freedom of expression. They must be necessary and no wider than necessary. The court applied the balancing exercise described in Re S (A Child) (Identification: Restrictions on Publication) and the guidance in JIH v News Group Newspapers Ltd. The court must consider whether there is sufficient public interest in identifying the claimant to justify the resulting interference with private and family life. Any order must be kept under review.
4. Application to the claim. The claimant demonstrated a real interest in preventing wider knowledge of her family’s connection with a well-known tragedy, notwithstanding that the pleaded claim concerned photographs rather than that underlying fact. At the present stage, the public interest did not justify identifying her or her children. The existing order was continued, but its wider provision concerning all references to the claimant was removed. A CPR r.5.4C order was made restricting non-parties’ access to documents which might identify the claimant or her children as victims of the tragedy.

First-instance decision. No earlier appellate decision is stated.