Armes v Nottinghamshire County Council

Anonymity for a witness may be ordered under CPR 39.2(4) only where non-disclosure is necessary to protect the witness’s interests. Where identification engages Article 8, the court must balance the seriousness of the interference with the witness’s private or family life against the principle of open justice and Article 10 freedom of expression. The general rule remains open justice; there is no presumption of anonymity. The court must assess the likely consequences of identification, the public interest in the issues raised, and the claimant’s legitimate interest in telling her story. Anonymity should be limited to what is strictly necessary. Findings of abuse made in civil proceedings, the absence of evidence of severe consequences, and the legitimate public concern involved may justify refusing anonymity.

The claimant had previously brought proceedings against the defendant local authority concerning abuse allegedly suffered while in foster care. The court found that she had suffered physical, emotional and sexual abuse, but held that the authority was not legally responsible. An appeal was dismissed, and the claimant’s factual findings were not challenged.

The present application sought to set aside an anonymity order protecting the identities of two former foster parents and other witnesses. The issue was whether continued non-disclosure was necessary to protect those witnesses’ interests, having regard to open justice, Articles 8 and 10 of the European Convention on Human Rights, and the circumstances in which the findings had been made.

1. Power and governing principle. Under CPR 39.2(4), the court could prohibit disclosure of a witness’s identity only where it considered non-disclosure necessary to protect the witness’s interests. In an Article 8 case, the court had to determine whether identification would interfere with private or family life and, if so, balance that interference against Article 10 freedom of expression and the principle of open justice.
2. No presumption of anonymity. The general rule remained that justice was administered openly. The question was not whether anonymity should generally follow once Article 8 was engaged, but whether the consequences of identification were sufficiently serious to justify derogating from open justice. The greater the likely harm to the witness, and the weaker the public interest in identification, the stronger the case for anonymity. Conversely, substantial public interest in the issues and the claimant’s legitimate interest in telling her own story weighed against it.
3. Application. Identification would interfere with the witnesses’ Article 8 rights because it could expose them as perpetrators of abuse and damage their reputations. However, there was no concrete evidence of consequences beyond possible embarrassment, distress, anxiety, reputational damage or hostility. The allegations concerned historic events, but abuse by foster parents remained a legitimate subject of public concern. The witnesses were not parties, had not been criminally convicted, and had been found liable only on the civil standard, but those considerations did not outweigh open justice. The claimant’s Article 10 interest in recounting her life, including findings made in her favour, was significant.
4. Disposition. The factors were finely balanced, but anonymity was not necessary, still less strictly necessary, to protect the witnesses’ interests. The anonymity order was set aside. It was directed to remain in force pending determination of any application for permission to appeal.

1. High Court (Queen’s Bench Division): the claimant’s original claim was determined in [2014] EWHC 4005 (QB). The court found abuse as a matter of fact but held that the local authority was not legally responsible.
2. Court of Appeal (Civil Division): the claimant’s appeal was dismissed in [2015] EWCA Civ 1139.
3. High Court (Queen’s Bench Division): the present application to set aside witness anonymity was granted.