Dulgheriu & Anor v London Borough Of Ealing

An anonymity order under CPR rule 39.2(4) requires necessity. The test is demanding and must be established by clear and cogent evidence, balancing open justice against the protection of the party’s interests. An interim order should be reviewed at the return hearing and may properly be limited in duration.

For a protective costs order under the R (Corner House Research) v Secretary of State for Trade and Industry principles, the court must consider public importance, the public interest in resolving the issues, the applicants’ private interests, and the parties’ financial resources. The court may consider the resources of an organisation that is intimately involved in the litigation. It may refuse the order where the evidence does not reveal the true financial resources behind the claim.

The claimants challenged a Public Spaces Protection Order made by the London Borough of Ealing under Chapter 2 of the Anti-social Behaviour, Crime and Policing Act 2014. The order created a safe zone around an abortion clinic and restricted activities by those both opposing and supporting abortion.

At this interim hearing the court considered whether the second claimant, described as the vigil leader, should have anonymity and whether the claimants should receive a protective costs order. The substantive challenge was listed for hearing two weeks later. The court did not determine the application to suspend the operation of the order.

1. Anonymity. CPR rule 39.2(4) permits non-disclosure where it is necessary to protect the interests of the party or witness. Necessity is a high and rigorous threshold. The burden rests on the party seeking departure from open justice, and the evidence must be clear and cogent.
2. The court adopted the approach in Y and Y and others v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin). A person bringing a public law challenge should ordinarily identify himself or herself openly, but anonymity may be justified where publication would create an objectively justified risk and would add little to public understanding or debate. The same approach applies to a challenge concerning a democratically elected local authority.
3. The second claimant had provided evidence of abusive, intimidating and targeted behaviour. Anonymity was therefore necessary for the short period before the substantive hearing. The order was limited to the afternoon of the first day of that hearing and had to be reviewed then. The claimant remained publicly identified by her role as the vigil leader.
4. The court applied the principles stated in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600. The proceedings raised issues of general public importance, and the public interest required their resolution. The phrase no private interest did not exclude a claimant who was personally committed to the public cause. The second claimant’s employment interest was more difficult, but her principal interest was found to be altruistic.
5. The applicants’ financial resources could not be assessed solely by reference to their modest personal means. The evidence suggested that Good Counsel Network, and possibly a connected charity, had income, assets and involvement in the litigation, including payment of the court fee. The court was not satisfied that the applicants’ true financial resources had been established. It therefore declined to make a protective costs order, without dismissing the application, and made no order on it.

First-instance interim decision. The judgment itself does not state any prior appellate decision.