Hemsworth v Department for Work And Pensions No 2 (rev 1)

Open justice remains the starting point for anonymity applications. A claimant seeking indefinite anonymity must provide clear and cogent evidence of exceptional circumstances showing that withholding the name is strictly necessary. The court must first establish whether publication would interfere with Convention rights beyond the ordinary consequences of litigation. Only then does it balance the privacy interference against the public interest in identifying the parties. General health, benefits, employment and relationship information may engage privacy rights, but bland and minimally intrusive material, speculative reputational fears and the possibility of unreasonable third-party prejudice will ordinarily carry little weight. Suspicion must not be treated as guilt, particularly where an investigation was fact-finding and ended without further action.

The applicant had settled a privacy claim against the Department for Work and Pensions concerning wrongful disclosure of health information obtained during benefits claims. He had been permitted to use the pseudonym SWS while seeking permission to make an anonymous statement in open court. The court refused that application in the first judgment, [2018] EWHC 1998 (QB), and retained anonymity pending any appeal.

The applicant then applied on the papers for anonymity to continue indefinitely. He relied on health risks, stigma, reputational harm, possible use of the judgment by his former partner, and the limited public value of identifying him. The issue was whether the further evidence established exceptional circumstances making continued anonymity strictly necessary.

1. The application was refused. The interim anonymity order was not continued or converted into indefinite anonymity. It would lapse after 21 days unless an application for permission to appeal was made, in which event it would continue subject to any order of the Court of Appeal.
2. Open justice is the starting point. The burden lies on the applicant to establish, by clear and cogent evidence, exceptional circumstances showing that anonymity is strictly necessary. The application had to be determined separately from the earlier refusal of permission to make an anonymous statement, although that decision formed part of the context.
3. The court adopted the framework in JIH v News Group Newspapers [2011] EWCA Civ 42 [2011] 1 WLR 1645. The question of whether the public interest in identifying a party justifies interference with private and family life is subsidiary. It arises only after the applicant shows that ordinary open justice would cause Convention interference beyond what litigation ordinarily entails.
4. The information about poor health, benefits, dismissal and difficulty finding work was bland and general. It might engage Article 8, but disclosure was minimally intrusive. Such circumstances would generally attract sympathy rather than deprecation and could not, without more, satisfy the serious-harm requirement in section 1(1) of the Defamation Act 2013.
5. Reputational fears and possible online misreporting were speculative and overstated. The court should not give excessive weight to unreasonable third-party prejudice, especially where any stigma would be undeserved. The investigation was fact-finding, had ended without further action, and reasonable readers would distinguish suspicion from guilt.
6. The evidence concerning present and future health consequences was conditional and insufficiently cogent. It did not justify derogation from open justice. The anonymity order subsequently lapsed when no Court of Appeal application was made.

The judgment itself states that permission to appeal the first judgment, [2018] EWHC 1998 (QB), was refused. Anonymity was maintained pending any application to the Court of Appeal. No such application was made, so the order later lapsed. This judgment was a further first-instance determination of anonymity.