Dr TF Piepenbrock v London School of Economics & Political Science

An appellate tribunal may restrict disclosure of a non-party’s identity where this is necessary to protect Convention rights or the interests of justice. It must give full weight to open justice and freedom of expression, and balance those interests against the individual’s Article 8 rights.

Where publication would seriously damage a vulnerable person’s privacy and reputation, and there is a substantial risk that a litigant will misuse court material to identify, vilify or harass that person, the balance may justify anonymisation, restrictions on access to the file, and a prohibition on identifying disclosure. An order may be indefinite where necessary, subject to later variation or revocation.

The Respondent applied for an order protecting the identity of “Ms D”, a non-party referred to in the Appellant’s employment proceedings and appeal. The EAT had dismissed the Appellant’s appeal on 21 December 2021 from an employment judge’s refusal to permit amendments to his claims. Permission to appeal that EAT decision was later refused on the papers.

Following a lengthy merits hearing, the employment tribunal rejected all of the Appellant’s claims. It found his allegations against Ms D untrue and malicious. The Respondent relied on evidence of the Appellant’s past and continuing publication of allegations identifying Ms D, and on the serious distress and reputational harm likely to follow further identification.

The central issue was whether the EAT should derogate from open justice by making an anonymisation and reporting-restriction order.

1. Application granted. The EAT had jurisdiction, analogous to that under rule 50 of the Employment Tribunals Rules of Procedure, by virtue of section 30(3) of the Employment Tribunals Act 1996. The jurisdiction permitted restrictions necessary in the interests of justice or to protect Convention rights.
2. The court applied the required balancing exercise. Full weight had to be given to open justice, the Appellant’s Article 6 rights and the Article 10 freedom of expression rights of the Appellant, the press and others. The person seeking a derogation bore the burden of establishing it.
3. Ms D’s Article 8 rights were engaged. Protection of reputation formed part of private life, and naming a person in a judgment in connection with disreputable allegations could engage that right even if the allegations were true. Here, the central allegations had been found untrue, and the evidence established a substantial risk of serious harm if Ms D were identified.
4. The EAT found that the Appellant bore strong animus towards Ms D and was likely to use court documents to identify, vilify and harass her. That prospective misuse of the court process was contrary to the interests of justice and supplied an independent basis for intervention.
5. The practical effect on open justice, Article 6 and Article 10 was limited. The appeal had been heard publicly, the judgment remained comprehensible without Ms D’s name, and the public could report the case except for information identifying her. The Article 8 and interests-of-justice considerations substantially outweighed the competing interests.
6. The EAT ordered that the earlier judgment remain anonymised; non-parties could not inspect or obtain EAT-file documents without permission; no person could publish or disclose Ms D’s identity or identifying information; and the order would continue indefinitely, subject to an application to revoke or vary it.

• Employment Appeal Tribunal: The Appellant’s appeal from the employment judge’s refusal to permit amendments was dismissed on 21 December 2021. This later application concerned protection of a non-party’s identity in those appeal proceedings.
• Court of Appeal: Permission to appeal the EAT’s dismissal was refused on the papers by Warby LJ on 30 March 2022.
• Employment Tribunal: The Appellant’s substantive claims were rejected in a judgment promulgated on 8 June 2022.