XXX v Camden London Borough Council

An application for anonymity under rule 39.2(4) of the Civil Procedure Rules 1998 requires a balancing of the relevant interests to determine whether non-disclosure is necessary for the proper administration of justice and the protection of the party or witness. A preliminary threshold of necessity, followed by a second necessity assessment, is neither required nor helpful.

Open justice remains the fundamental rule. Statutory confidentiality for applicants seeking housing allocations does not create automatic anonymity in judicial review proceedings concerning allocation decisions. Subjective fears and their effects on health may be weighed, but they do not displace the required balance. Prior publication, failure to seek anonymity earlier and practical difficulties in altering existing reports are relevant considerations.

The appellant had unsuccessfully sought judicial review of the council’s decision concerning housing-allocation points. She did not seek anonymity when permission or the substantive claim was determined. After publication of the judgments, she applied for retrospective anonymity and redaction of her name, country of origin, ethnicity and sensitive health information.

A deputy High Court judge dismissed that application in [2019] EWHC 2638 (Admin), although he anonymised the proceedings concerning the anonymity application itself. The appellant relied on psychiatric evidence showing that publication had worsened her psychotic disorder, anxiety and subjective fears.

The appeal concerned the proper approach under rule 39.2(4) of the Civil Procedure Rules 1998, including whether a two-stage test was required and whether section 166(4) of the Housing Act 1996 supported anonymity for housing-allocation claimants.

1. The appeal was dismissed. The deputy judge had applied the correct principles and undertaken the necessary balancing exercise. No error of law, omission of a material factor, reliance on an immaterial factor or error of principle justified appellate intervention.

2. Rule 39.2(4) of the Civil Procedure Rules 1998 does not require a mandatory two-stage inquiry in which the court first decides whether a threshold of necessity has been crossed and then balances the competing interests to decide necessity again. That formulation risks confusion by employing necessity in different senses. A court may assess initially whether an application has any prospect of success, but it need not do so or record such an assessment.

3. The court must consider the principles governing open justice, fairness to parties and witnesses, and applicable Convention rights. It must then balance the relevant interests and determine whether non-disclosure is necessary to secure the proper administration of justice and protect the party or witness. Subjective fears may be considered, especially where they adversely affect health, even if the fears lack an objective foundation.

4. Where articles 8 and 10 of the Convention conflict, neither has automatic precedence. The court must focus intensely on the comparative importance of the particular rights, consider the justification for interfering with each right, and apply proportionality to each. Section 12 of the Human Rights Act 1998 also requires particular regard to freedom of expression, existing or imminent publicity, the public interest in publication and any relevant privacy code.

5. Section 166(4) of the Housing Act 1996 prohibits disclosure, without consent, of the fact that a person has applied for an allocation of housing. Parliament did not extend that protection to grant anonymity to claimants challenging housing-allocation decisions by judicial review. Any such claimant must establish necessity under rule 39.2(4); a new class of anonymity cannot be created merely by analogy with the statutory protection.

6. The deputy judge was entitled to consider that the appellant was a party, had not sought anonymity before or during the earlier hearings, and sought alteration after judgments had entered the public domain. The likely practical difficulties for reporting organisations asked to revisit existing publications were also relevant. The medical evidence and the appellant’s subjective fears did not show that the resulting balance was wrong.

1. Court of Appeal (Civil Division): The court unanimously dismissed the appeal and upheld the refusal of retrospective anonymity and redaction: [2020] EWCA Civ 1468.

2. High Court, Queen’s Bench Division: A deputy High Court judge dismissed the application to anonymise and redact earlier published judgments, but anonymised the proceedings concerning that application: [2019] EWHC 2638 (Admin).

3. Earlier judicial-review proceedings: Permission was granted following a renewed application, but the substantive claim concerning housing-allocation points was subsequently dismissed. No anonymity application was made at either stage.