Robin Simon Graham Makin v Ministry of Justice

The court exercised its case management power under CPR Part 3.1(7) to revisit an anonymity order made by Jeremy Baker J in 2014. The decision applied the well-established principle that open justice is the default, and any derogation (including anonymity) must be strictly necessary and supported by clear and cogent evidence. The judge balanced the Claimant’s Article 8 interests (and alleged Equality Act concerns) against the very strong public interest in transparency, the public interest in investigation of professional misconduct by the Solicitors Regulation Authority/Solicitors Disciplinary Tribunal, and the impact of the Claimant’s egregious conduct in subsequent costs proceedings (including detailed findings by Costs Judge James and the making of an ECRO). The sealed documents put before the court (AB1 and AB2) were considered; AB1 was taken into account but did not outweigh the public interest, and AB2 was inspected de bene esse but its content did not justify continuing anonymity. The court concluded that continued anonymity was not justified and directed that anonymity be lifted while safeguarding the continued non‑disclosure of any material which the 2014 proceedings had properly suppressed.

Background and procedural posture:

• The Claimant’s wife died in 2003. The Claimant issued subject access and related proceedings against the Ministry of Justice, which culminated in a 2014 judgment of Jeremy Baker J in which an anonymity order was made to protect family privacy and the suppression/destruction of certain sensitive material.
• Extensive subsequent costs litigation arose. Costs Judge James made findings of serious misconduct by the Claimant in costs proceedings, reduced the Claimant’s bill by 70% for misconduct and gave consequential directions. Applications and appeals were made and refused, including by Murray J ([2023] EWHC 72) and others. An Extended Civil Restraint Order was made against the Claimant.
• The Ministry of Justice applied on 21 October 2021 to revisit and remove the 2014 anonymity order. The application was heard in July 2023.

Nature of the application and relief sought:

The MoJ sought an order revisiting and removing the anonymity order originally made in 2014 and continued into subsequent costs and collateral proceedings.

Issues framed by the court:

1. Whether there has been a material change of circumstances or other reason to vary/revoke the 2014 anonymity order (CPR Part 3.1(7), and authorities on revisiting orders such as Tibbles v SIG PLC and Roult).
2. How to balance the Claimant’s Article 8 rights and asserted Equality Act protection against the public interest in open justice, transparency and investigation of alleged professional misconduct.
3. Whether late-sealed material (AB1 and AB2) should be considered and whether their contents justify maintaining anonymity.

Court’s reasoning and disposition:

• The court reiterated that anonymity is an exceptional derogation from open justice and must be supported by clear and cogent evidence. The public interest in exposing and enabling investigation of serious professional misconduct by an officer of the court was given very substantial weight.
• Costs Judge James had found serious instances of misconduct (including disruptive conduct in court, failure to disclose relevant authorities, excessive and improper charging and signing misleading bills). Those findings were upheld on permission-to-appeal applications and supplemented by the ECRO. The cumulative effect of the Claimant’s conduct and the public interest in proper regulation strongly favoured lifting anonymity.
• Material put before the court in sealed envelopes was considered. AB1 (seen by MoJ) did not establish Article 8 or Equality Act interests sufficient to outweigh open justice. AB2 (not seen by MoJ) was inspected de bene esse; its content was malicious and offensive in character but did not alter the balance because the original judgment had not disclosed that material and lifting anonymity would not itself publish suppressed documents. The pervasive extension of the anonymity order into multiple collateral proceedings demonstrated its inappropriate breadth.
• The judge concluded that continued anonymity was not justified and directed counsel to agree an order lifting anonymity, while preserving protection against disclosure of the suppressed material itself.

This first instance application was allowed: the court concluded that continued anonymity was not justified and ordered the anonymity order lifted. The rationale was that the public interest in open justice and in enabling proper investigation and reporting of serious professional misconduct, supported by clear findings by Costs Judge James and the existence of an ECRO, outweighed the private Article 8 and Equality Act interests relied on by the Claimant; the sealed documents did not supply the clear and cogent evidence necessary to maintain anonymity.