Kalma & Ors v African Minerals Ltd & Ors

Anonymity for non-party witnesses may be ordered under the common law where fairness requires protection from risks such as violence or loss of livelihood. A genuine subjective fear may be considered without deciding whether the feared danger is objectively established. The applicant must first cross a formidable threshold, but doing so does not displace open justice. The court must then balance fairness, the public interest in open justice and any prejudice to the opposing party. A confidentiality club may mitigate prejudice by giving the opposing legal team access to identities and unredacted evidence. The court may also reduce the weight given to evidence if anonymity impairs effective challenge.

Forty-one claimants brought claims arising from alleged assaults and imprisonments during two incidents near an iron ore mine in Sierra Leone. Six claimant witnesses sought anonymity because they feared violence, reprisals or loss of employment if identified. The defendant opposed anonymity, arguing that the evidence of risk was insufficiently cogent and that anonymity would impair investigation and cross-examination.

The application concerned the interaction between open justice, common-law fairness to witnesses and the defendant’s right to a fair trial. The claimants proposed disclosure of unredacted statements to a limited confidentiality club.

1. Application granted. The anonymity of the six non-party witnesses was preserved, subject to mitigation through a confidentiality club.
2. Under CPR 39.2(4), non-disclosure may be ordered where necessary to protect the interests of a party or witness. The common-law jurisdiction is distinct from the Convention-based jurisdiction under Articles 2 and 3.
3. The threshold for considering common-law fairness was formidable, but less onerous for witnesses who were not parties. The court was satisfied in each case that a genuine subjective fear of violence or loss of livelihood had been established. It was unnecessary at this stage to determine the objective validity of those fears.
4. Crossing the threshold did not automatically justify anonymity. The court had to balance the witnesses’ interests and the demands of fairness against the strong public interest in open justice and possible prejudice to the defendant. The public impact of anonymity was relatively modest because the witnesses were not public figures and their names added little to public understanding of the proceedings.
5. The defendant’s potential prejudice could be reduced by a confidentiality club. Its membership and terms required a further balancing exercise, including the severity of the risk, representation of each party, the importance and nature of the confidential information, and practical disruption. The club could be expanded if necessary.
6. If anonymity impaired the defendant’s ability to challenge a witness’s evidence, the court could adjust the weight given to that evidence. The final order therefore preserved anonymity while requiring appropriate confidential disclosure.