Hemsworth v Department for Work And Pensions (rev 2)

Anonymity for a statement in open court is a derogation from open justice. It may be allowed only where strictly necessary to secure the proper administration of justice, supported by clear and cogent evidence, and where no less restrictive alternative is adequate. A statement in open court following settlement of a privacy claim may ordinarily be permitted if it is fair and proportionate, but there is no inflexible entitlement to one. An anonymous statement is not justified merely because the claimant wishes to publicise detailed private information. The court should consider whether the claimant can be named while omitting unnecessary intimate detail.

The applicant brought settled claims against the Department for Work and Pensions arising from the disclosure of sensitive medical information to two former employers. The settlement included an agreed statement in open court. The applicant sought permission to make the statement anonymously while retaining extensive details of his health problems. The Department accepted the proposed wording but opposed anonymity.

The application was made under CPR Practice Direction 53, paragraph 6, after settlement and before proceedings had been issued. The central issue was whether anonymity was strictly necessary and proportionate to the applicant’s purposes, including public acknowledgment, vindication and deterrence of further disclosure.

1. Application refused. The applicant had not established that anonymisation of the proposed statement was necessary to secure the proper administration of justice or proportionate to any legitimate aim.
2. Open justice is the starting point. Anonymity is exceptional and the burden lies on the person seeking it. Clear and cogent evidence is required. The court must scrutinise whether any restraint is necessary and whether a less restrictive alternative would suffice.
3. A statement in open court may be an appropriate endpoint to settled privacy litigation. The court proceeded on the assumption, reflected in Webb v Lewis Silkin LLP, [2016] EWHC 1225 (Ch), that a fair and proportionate statement would normally be permitted in a privacy case. That assumption created no rigid rule and did not establish a general entitlement to anonymous vindication.
4. The applicant’s objectives could be met by a statement identifying him but describing the wrongdoing without reproducing the intimate medical information. The detailed disclosure in the draft was not necessary to explain the claim, establish public interest, prove the wrongdoing or deter onward disclosure. Indeed, further publication of the sensitive information would undermine the privacy interests relied upon.
5. The SIOC procedure is party-initiated and subject to light judicial supervision. It is not a court-operated freedom-of-information mechanism. The court need not require disclosure of personal information beyond what the parties choose to include. Approval applications involving children or protected parties are materially different and provide no analogy.
6. The interim anonymity order could remain only while any appeal was pursued. The applicant accepted liability for the Department’s costs, assessed in the stated amount.

First-instance application concerning a settled privacy claim. No earlier judgment or appeal decision was stated.