Suez Fortune Investments Ltd & Anor v Talbot Underwriting Ltd & Ors

Anonymity for a witness in civil proceedings requires a two-stage assessment. First, non-disclosure must be necessary to protect the witness, based on a legitimate fear of danger and a direct link between disclosure and increased risk. A genuine subjective fear may suffice, but anonymity is unlikely to be necessary where the witness’s identity is already known, or readily discoverable, by those said to pose the threat. Only if necessity is established does the court balance the witness’s interests against the parties’ right to a fair trial and the public interest in open justice. The burden lies on the party seeking non-disclosure.

The defendants, war-risk underwriters, sought an order under the court’s case-management powers and CPR 39.2(4) permitting them to disclose the real identity of a witness known as Theo Blake. The witness resisted disclosure, supported by the City of London Police, on the assumed basis that disclosure might expose him and his mother to danger. The claimant bank supported the application because identification would assist its investigation of the witness’s credibility.

The central issue was whether disclosure of the witness’s identity was necessary to protect him, given evidence that his identity was already known to those said to threaten him.

1. The defendants’ applications were granted. The witness’s true identity could be disclosed to the claimant bank, and emails referred to in his statement were ordered to be disclosed in soft-copy or native format.

2. The court applied the two-stage test for anonymity. The applicant must first establish that non-disclosure is necessary, based on a legitimate fear of danger. If that threshold is met, the court must balance the witness’s interests against the parties’ interests in a fair trial and the public interest in open justice. The burden rests on the party seeking anonymity.

3. Necessity requires a direct connection between disclosure of identity and increased danger. A genuine subjective fear can suffice even without objective verification. However, where the identity is already known to, or readily discoverable by, those who pose the threat, disclosure will generally not increase the risk sufficiently to make anonymity necessary.

4. The court assumed that the threats to the witness and his mother were genuine. Nevertheless, the events in Greece, including callers asking for the witness by his real name, established that his identity was already known to the alleged threats. Disclosure to the claimant would therefore create no additional risk. The court consequently did not proceed to the balancing stage.

5. Any separate risk arising from disclosure of the witness statement, or from knowledge of when he would attend court, did not justify anonymity. The appropriate response could include protective arrangements for transporting him to and from court. The possibility of later criminal proceedings did not alter the conclusion, particularly since no charges had been brought.

First-instance decision. No appellate history was stated in the judgment.