Moss v Information Commissioner

The Court of Appeal applied orthodox open justice principles and the established "necessity" test when considering an application for an anonymity order. The central legal task was the ultimate balancing exercise between the appellant's Article 8 and Article 6 European Convention on Human Rights (ECHR) interests and the Article 10 and Article 6 ECHR rights of the press and public. The court accepted that Article 8 was engaged but concluded that the weight to be attached to the appellant's privacy was limited, there was no appreciable risk of "jigsaw" identification and the principle of open justice prevailed. The court therefore dismissed the appeal and refused anonymity, confirming the Upper Tribunal and First-tier Tribunal decisions which had applied sections 1 and 40(2) of the Freedom of Information Act 2000 only as background to the dispute.

Background and parties:

• The appellant, Derek Moss, a litigant with asserted physical and mental health conditions, challenged a Decision Notice of the Information Commissioner upholding a public sector body's reliance on sections 1 and 40(2) of the Freedom of Information Act 2000. The appellant sought anonymity and other confidentiality measures in his appeal to the First-tier Tribunal (FTT), which were refused by Judge McKenna. The Upper Tribunal (Administrative Appeals Chamber) dismissed the appellant's appeal against that interlocutory ruling. The appellant obtained permission to appeal to the Court of Appeal on a point of law about the proper basis for anonymity rulings.

Nature of the claim / relief sought:

• The appellant sought an anonymity order, sealing of the court file and related reporting restrictions so that he could pursue his FTT appeal without disclosure of his identity or sensitive medical material.

Issues before the court:

1. Whether the Upper Tribunal erred in the balancing exercise by treating Article 10 and Article 6 rights of the press and public as engaged when determining an anonymity application.
2. Whether the refusal to anonymise unlawfully interfered with the appellant's Article 6(1) right to a fair hearing.
3. Whether the refusal to anonymise unlawfully interfered with the appellant's Article 8 right to respect for private life.

Court's reasoning and disposition:

• The Court of Appeal held that Articles 10 and 6 are plainly engaged when an anonymity order is requested because such an order derogates from open justice and restricts the public's and the press's rights to receive and impart information. Authorities including JIH, Re S, Khuja and others underpin that position.
• Applying the ultimate balancing test, the court found Article 8 engaged but of limited weight on the facts: the appellant had initiated the proceedings; there was no appreciable risk of identification by "jigsaw" inference from other judgments; the medical evidence was not shown to be necessary to establish that the decision under appeal was unlawful; and any Article 6 arguments mirrored the Article 8 analysis.
• The court also emphasised necessity as the touchstone for derogating from open justice and rejected arguments that tribunals enjoy a weaker obligation of publicity sufficient to justify anonymity absent necessity.
• The appeal was dismissed, the anonymity application and related requests (sealing, reporting restrictions) were refused, and a temporary anonymity order previously made was discharged.

The appeal is dismissed. The Court held that anonymisation is a derogation from the open justice principle engaging Articles 10 and 6 ECHR, and that on the facts the appellant's Article 8 and Article 6 rights did not outweigh the public and press interest in open justice. The FTT and Upper Tribunal had applied the correct legal tests and there was no error of law warranting intervention.

FTT (Judge McKenna) refused anonymity in interlocutory rulings of 1 December 2017 and 21 December 2017. Upper Tribunal (UTJ Wikeley) dismissed the appeal on 21 December 2018, reported at [2018] UKUT 441 (AAC), granting permission to appeal to the Court of Appeal on a point of law. This Court heard the appeal and dismissed it on 15 May 2020: [2020] EWCA Civ 580.