CWD v Nevitt & Ors

A reporting restriction order supporting a procedural anonymity order is conceptually distinct from an interim injunction restraining publication. The rule in Bonnard v Perryman does not directly govern such an application, although its policy remains relevant where the order may restrain publication of allegations. Section 12(3) of the Human Rights Act 1998 applies because the order may affect freedom of expression. The court must balance the Convention rights and open justice, grant only what is necessary, and ordinarily require the claimant to show that final relief is more likely than not. A procedural anonymity order may remain necessary even where an associated reporting restriction is refused.

The claimant brought claims in defamation, misuse of private information and harassment against three siblings concerning allegations of sexual assault and rape. An earlier order anonymised the parties. The first and second defendants sought to have their anonymity lifted, while the claimant sought a reporting restriction order under section 11 of the Contempt of Court Act 1981 preventing publication of his identity as the claimant.

The court also reviewed whether the third defendant’s anonymity remained necessary. The central issues were the distinction between a CPR rule 16 anonymity order and a reporting restriction order, the applicable threshold under the Human Rights Act 1998, and the balance between privacy, reputation, freedom of expression and open justice.

1. Anonymity. The first and second defendants had expressly waived their statutory anonymity under sections 1 and 2 of the Sexual Offences (Amendment) Act 1992. The risk of jigsaw identification had also fallen away. Their anonymity was therefore lifted. The same reasoning applied to the third defendant, whose continued anonymity was no longer necessary.
2. Nature of the order. A CPR rule 16 order withholds a party’s name within the proceedings. It is permissive and does not itself prohibit publication outside the proceedings. A reporting restriction order is a distinct, more intrusive derogation from open justice and operates as a peremptory prohibition.
3. Applicable test. Section 11 of the Contempt of Court Act 1981 is ancillary. It permits directions prohibiting publication only where the court has power to withhold the relevant name or matter. The rule in Bonnard v Perryman was not directly applicable because the order sought was ancillary to the court process rather than an interim injunction restraining the allegations themselves. Its policy remained relevant because the proposed order might have that practical effect.
4. Section 12(3) of the Human Rights Act 1998 applied. The proposed order was relief capable of affecting freedom of expression. The claimant therefore had to establish, in the context of the balancing exercise, that it was more likely than not that he would obtain a final order restraining publication. The order had to be necessary and no more than necessary.
5. The competing rights were finely balanced. Factors favouring protection included the seriousness of the allegations, the claimant’s strongly arguable privacy interest, the risk that publication would defeat the principal purpose of the proceedings before trial, and the limited duration and scope of the proposed order. Factors against it included the peremptory interference with freedom of expression, the ordinary expectation that parties’ names will be public, the interests of the first and second defendants in telling their story, and the public importance of reporting allegations of sexual offending and the response of the criminal justice system.
6. The claimant had not shown on the untested evidence that he was more likely than not to obtain final relief. The reporting restriction application was therefore refused. The claimant remained anonymised within the proceedings under the existing CPR rule 16 order.

First-instance applications in the High Court. The judgment records an earlier interim application before Dingemans J and subsequent directions before Warby J and Nicklin J, but this was not an appeal.