Josephine Mary Hayes v The Liberal Democrats & Anor

The court dismissed the appellant's appeal against Master McCloud's refusal to make Norwich Pharmacal orders requiring the Liberal Democrats and Mr Dudhill to disclose the identities of anonymous complainants and anonymous Twitter users. The judge held that the appellant had not established a good arguable claim in malicious falsehood or conspiracy because she had not demonstrated actionable loss or the requisite state of mind (malice or intention to injure). The court also held that it was not just and proportionate to order disclosure at this early stage given the interference with Article 10 rights and the possibility of obtaining the information by other means in the course of the proceedings or from third parties.

Key principles applied include the Norwich Pharmacal test (Collier v Bennett and Norwich Pharmacal Co), the Article 10/Article 8 balancing exercise (In re S and authorities on protection of anonymous expression), the requirement to plead and provide evidence of damage in malicious falsehood (Tesla Motors v BBC and Ratcliffe v Evans) and the minimum threshold of seriousness for harassment claims (Hayes v Willoughby).

Background and parties. The appellant, a practising barrister and Liberal Democrat member, alleged a co-ordinated campaign of online harassment and false complaints by a number of anonymous complainants to the Liberal Democrats and by anonymous Twitter accounts. She sought Norwich Pharmacal relief requiring the Liberal Democrats to identify anonymous complainants (cases 719, 720, 721) and Mr Dudhill to identify the operators of certain Twitter accounts. Master McCloud refused to grant the orders and the appellant appealed.

Nature of the application. The appellant sought pre-action and early disclosure (Norwich Pharmacal orders) to identify anonymous persons whom she intended to sue for causes of action including malicious falsehood, conspiracy and harassment, damages (including exemplary damages) and injunctive relief. An order had been made against the Bar Standards Board (which consented) but not against the Liberal Democrats or Mr Dudhill.

Issues framed by the court.

• Whether the appellant had a good arguable cause of action against the unknown persons sufficient to satisfy the first limb of the Norwich Pharmacal test;
• Whether the respondents were "mixed up" in the alleged wrongdoing so as to have facilitated it;
• Whether a Norwich Pharmacal order was just and proportionate having regard to Article 10 rights and other factors; and
• Whether the judge erred in procedure, in particular by treating the Bar Standards Board differently and by awarding costs against the appellant.

Court's reasoning and conclusion. The court concluded the appellant had not established a good arguable claim. The pleaded claim did not properly particularise actionable damage for malicious falsehood or conspiracy (and there was no persuasive evidence of malice or intention to injure). The statutory exception in section 3 of the Defamation Act 1952 might apply to the complaint to the Bar Standards Board, which assisted the grant against that body, but it did not assist the application against the Liberal Democrats. The court further held that ordering disclosure at that stage would unjustifiably interfere with Article 10 rights of anonymous speakers and was disproportionate when alternative routes of disclosure remained available (service, substituted service, disclosure in ordinary proceedings, or disclosure from social media platforms). The court therefore dismissed the appeal. The judge's costs orders were held to be within ordinary practice.

Wider context. The court emphasised that Norwich Pharmacal relief requires a careful, case‑by‑case balancing of the strength of the underlying claim, the extent to which the respondent was involved, alternative avenues for obtaining the information, and interference with privacy and free expression rights.

The appeal is dismissed. The court held that the appellant had not shown a good arguable claim in malicious falsehood or conspiracy because she had not pleaded or evidenced actionable loss or the necessary state of mind, and that Norwich Pharmacal relief would be neither just nor proportionate at this stage given the interference with Article 10 rights and the availability of other means to obtain the information. The judge's case management discretion and costs orders were upheld.