Lupu & Ors v Rakoff & Ors

Applications for anonymity and expedition in privacy proceedings require clear and cogent evidence. A derogation from open justice must be strictly necessary and no more extensive than required to secure the proper administration of justice or protect a legitimate interest. Anonymity is not justified merely because proceedings may later require consideration of private material. The court must assess the actual issues and available protective measures. Parties who commence proceedings ordinarily accept the public nature of litigation, including the ordinary consequences of publicity. Expedition requires a particular and demonstrated urgency; a remote or fanciful risk of unauthorised disclosure is insufficient.

The claim concerned alleged misuse of private information and breach of the Data Protection Act 2018 arising from covert footage recorded at sexual entertainment venues. The individual claimant performers sought permission to issue proceedings anonymously and to use initials. They did not seek a reporting restriction preventing identification of their status as claimants or performers. They also sought an expedited trial, relying on the risk that details from the footage might enter the public domain and on undertakings given by some defendants.

The court considered whether anonymity was necessary and proportionate at this early stage, and whether the proceedings should be advanced ahead of other pending civil claims.

1. Anonymity. The applications were refused. Open justice is the starting point. Any derogation, including anonymisation, requires clear and cogent evidence and must be the least restrictive measure strictly necessary in the particular circumstances.
2. There are principally two justifications for derogating from open justice: preventing the administration of justice from being frustrated, and protecting the legitimate interests of others. The court must conduct a fact-specific balancing exercise, considering the purpose and value of open justice, the competing Convention rights and the risk of harm.
3. A CPR 16 order anonymising a party and a reporting restriction order are distinct. Anonymisation alone does not prohibit publication of the party’s identity. The proposed order therefore did not address the concern advanced by the claimants. In any event, the possibility that evidence concerning the footage might later require consideration was premature. The court could adopt targeted protective measures if the need arose at trial.
4. Parties who initiate proceedings ordinarily accept the normal public nature of litigation. Embarrassment, reputational harm and consequential loss do not ordinarily justify anonymity. The claimants had not shown that public proceedings would frustrate the administration of justice or destroy the subject matter they sought to protect.
5. Expedition. The application was also refused. The undertakings provided interim protection, and there was no particular urgency justifying priority over other litigants. The suggested risk of computer hacking was too remote and fanciful to warrant accelerated case management. The claim would proceed through the usual case-management stages and to trial if necessary.