W v M (TOLATA Proceedings: Anonymity)

Proceedings under the Trusts of Land and Appointment of Trustees Act 1996 are public business. The starting point is an open hearing, without anonymisation, and full reporting by the press. A departure requires clear and convincing evidence engaging competing Convention rights.

The court must conduct an intense, fact-specific and proportionate balance between Articles 6, 8 and 10. Particular weight must be given to the interests of children likely to be harmed by publication, but those interests are not an automatic trump card. The court should be cautious about extending child-protection reasoning into ordinary civil litigation and about assessing journalistic merit. On the facts, the evidence did not establish a sufficient risk or causal link to displace open justice.

The claimant brought proceedings under section 14 of the Trusts of Land and Appointment of Trustees Act 1996 concerning beneficial ownership of two valuable properties acquired during a long cohabitative relationship. The defendant sought anonymisation of the parties, their family members and the properties under CPR 39.2(4).

The application was opposed. The defendant relied on the Article 8 rights of his partner and children, and on Article 6 concerns relating to a proposed witness who feared publicity about a spent conviction. The central issue was whether the evidence and the competing Convention rights justified derogating from the ordinary rule of open justice.

The judge initially refused the application. After the substantive proceedings were settled confidentially, the judge reconsidered publication of the judgment and granted anonymisation because the settlement removed the public-interest value associated with the contested litigation.

1. Initial application refused. Proceedings under the Trusts of Land and Appointment of Trustees Act 1996 were public business under the CPR. The general rule derived from Scott v Scott [1913] AC 417, Article 6 and CPR 39.2(1) was an open hearing, without anonymisation, with freedom for the press to report.
2. The court had to give particular regard to Article 10 under section 12(4) of the Human Rights Act 1998, while also considering the Article 8 rights of the defendant and his family and the Article 6 position of the proposed witness. The engagement of those rights required proper, clear and convincing evidence. Mere assertion was insufficient.
3. The balancing exercise required intense focus on the comparative importance of the rights claimed, the justifications for interference and proportionality. The interests of children likely to be harmed by publication required particular weight, but they did not automatically prevail. The judge was cautious about extending the reasoning in ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 from free-standing privacy proceedings into ordinary property litigation.
4. The court should also be very cautious about assessing the motives or intrinsic journalistic merit of a possible report. It should not become a censor of editorial choices, although the public interest in the particular publication remained relevant to the Article 8 and Article 10 balance.
5. On the evidence, publication might cause distress, but the children did not bear the defendant’s surname and there was no appreciable risk or causative link showing that their interests would be adversely affected. It was also highly implausible that the proposed witness’s evidence would be compromised by being identified and summoned. The starting point was therefore not displaced and the application was refused.
6. After the main action was settled confidentially, the public-interest justification for identifying the parties fell away. The judge held that anonymisation of the judgment was then proportionate and necessary to preserve the agreed confidentiality, and granted the application.

The judgment records that permission to appeal was granted by Hughes LJ on 24 August 2012, with the reporting restriction order continued pending the appeal. The substantive proceedings were subsequently settled and the proposed appeal was not pursued.