Stephanie Rebecca Hayden v Associated Newspapers Limited & Anor

A request by a non-party for a publicly accessible court document is not itself ordinarily a “record of the court” merely because it is retained temporarily in an electronic case-management system. Under CPR 5.4B(2), the relevant question is whether the material is kept as a long-term record of what happened in the litigation.

A Norwich Pharmacal order requires arguable wrongdoing, necessity, and a respondent sufficiently involved in or connected with the wrongdoing to be more than a mere witness. Supplying a publicly accessible court order, without knowledge that it may be misused, does not ordinarily amount to facilitation. Open justice, privacy, the risk of identifying an innocent person, and alternative police investigation may also justify refusing relief.

The claimant had brought libel and harassment proceedings arising from an article published by Associated Newspapers Limited. The defamation claim was dismissed and the proceedings were later stayed following settlement, although an unpaid costs order remained.

After an order requiring the claimant to attend court for questioning was obtained, an anonymous user posted a copy of it on KiwiFarms. The claimant applied against HMCTS for documents identifying the person who had obtained the copy. She relied on CPR 5.4B(2), the Norwich Pharmacal jurisdiction and, alternatively, the inherent jurisdiction.

The central issues were whether the request for the order was a communication forming part of the records of the court, whether HMCTS was sufficiently involved in the alleged wrongdoing, and whether disclosure was necessary and proportionate.

1. CPR 5.4B(2). The completed request form was a communication between the court and another person. It was not, however, part of the “records of the court”. Applying Dring, the request was an administrative document wholly unconnected with the litigation. It was retained only to facilitate public access to documents and was no longer available on CE-File after the request had been satisfied. Temporary retention did not alter its character.
2. The open justice principle supported that conclusion. Persons exercising the right under CPR 5.4C(1) to obtain documents required to be publicly available should not ordinarily have to give reasons or face disclosure of their identity to the parties. That position was analogous to members of the public attending an open hearing without identifying themselves.
3. Norwich Pharmacal. The claimant could not establish arguable harassment arising from the post itself. Even assuming that the anonymous poster and the purchaser were the same person, obtaining the order would not itself prove that identity. More fundamentally, HMCTS had neither participated in nor facilitated the publication. Providing a publicly accessible order in discharge of a statutory duty was insufficient involvement.
4. Various Claimants v News Group Newspapers Ltd was confined to its narrow facts: a police force which had investigated alleged wrongdoing and thereby obtained relevant information could be ordered to disclose it. HMCTS had conducted no investigation and was merely a witness to one step in an evidential chain. The application therefore fell outside the ratio of that decision.
5. Even if jurisdiction existed, discretion would have been exercised against disclosure. Relevant considerations included the public interest in open justice, the risk of identifying an innocent person, privacy and data-protection interests, the absence of HMCTS’s knowledge of any likely misuse, and the availability of police investigation as a safer alternative.
6. There was no residual inherent jurisdiction permitting the order where the requirements of CPR 5.4B(2) and Norwich Pharmacal relief were not met. The application was dismissed.