ABC v Avtar Lit

Orders restricting publication or anonymity are derogations from open justice and interference with the public’s Article 10 rights. They require close scrutiny, evidence establishing necessity, and consideration of less restrictive alternatives. Private or sensitive allegations, social standing, party consent, or an existing anonymity order do not by themselves justify a non-disclosure order. An anonymity order is distinct from an injunction restraining disclosure. A Master has no jurisdiction to grant a non-disclosure injunction. Applications made without notice must address the applicable procedural guidance and explain why notice was not given.

The claimant brought a claim for damages for assault. The parties were initially anonymised by order of a Master, but that order was later set aside as against the defendant. After judgment in default was entered against the defendant, an interim judge granted a short-term non-disclosure order preventing disclosure of the default judgment and the defendant’s identity.

The defendant applied to continue that order. The application relied principally on the sensitivity of the allegations and the defendant’s standing in society. The central issues were whether the application satisfied the requirements governing reporting restrictions and whether the earlier anonymity order supported the continuation of the non-disclosure order.

1. The application to continue the non-disclosure order was dismissed. The order of 4 October 2013 consequently lapsed.

2. The application did not follow the Model Order in the Practice Guidance: Interim Non-Disclosure Orders and contained no evidence addressing the necessity of the order or the availability of less restrictive alternatives. The Court of Appeal’s guidance in JIH v News Group Newspapers Limited [2011] EWCA Civ 42; [2011] 1 WLR 1645 required close scrutiny because such orders derogate from open justice and interfere with the Article 10 rights of the public.

3. The sensitivity of the allegations and the defendant’s standing in society did not establish the necessary justification. The guidance recognised no general exception for private matters and required that public figures receive the same protection as others.

4. An anonymity order and a non-disclosure order have different legal effects. The anonymity order concerned the names used in court documents and was not an injunction restraining disclosure. A Master had no jurisdiction to grant an injunction, including a non-disclosure order. The earlier anonymity order therefore could not provide the required basis for the defendant’s application, whether or not it remained in force.

5. The court expressed concern about the absence of information that would have justified an application without notice. It made no finding that the relevant requirements of CPR Part 25, Practice Direction 25A paragraph 4.3, or section 12 of the Human Rights Act 1998 had been breached. The judgment did not determine the outstanding substantive or procedural issues between the parties.