Josephine Mary Hayes v The Liberal Democrats & Anor

A Norwich Pharmacal order is exceptional and discretionary. The applicant must show a good arguable claim in law against the persons whose identities are sought, together with the other established conditions. Alleging pseudonymity, distress, reputational harm or possible wrongdoing is insufficient without evidence of an actionable wrong, loss, malice or intention to injure where those matters are required.

Disclosure must also be necessary and proportionate. The court may properly require the claimant first to serve an identifiable claim, plead the case, pursue ordinary disclosure and consider whether information remains necessary. Anonymous expression engages Articles 8 and 10 ECHR, and the open justice and fair trial principles do not create an absolute right to early identification.

The appellant, a barrister and Liberal Democrat, sought Norwich Pharmacal orders against the Liberal Democrats and Stephen Dudhill for information identifying anonymous party complainants and Twitter-account operators. She intended to pursue claims including malicious falsehood, conspiracy and harassment.

Master McCloud granted relief against the Bar Standards Board but dismissed the applications against the respondents. She concluded that the alleged conduct did not meet the necessary threshold and that disclosure was premature and disproportionate. The appellant appealed, alleging errors concerning the good arguable case requirement, anonymity, fair hearing rights, alternative means of identification, the respondents’ involvement and costs.

1. Appeal dismissed. The appellant had not shown a good arguable claim sufficient to justify Norwich Pharmacal relief.
2. For malicious falsehood and conspiracy, the pleaded and evidential case did not establish actionable damage or loss. Reputational injury alone was insufficient for those causes of action. The assertion that a person was pseudonymous did not establish malice or an intention to injure. The same facts did not establish the minimum seriousness required for harassment, and merely mentioning other possible torts, offences or statutory wrongs did not establish a good arguable claim.
3. The governing Norwich Pharmacal conditions were those identified in Collier v Bennett: a good arguable claim, respondent involvement in the wrongdoing, possession of information enabling pursuit of the wrongdoer, and justice and proportionality. The discretionary factors identified in The Rugby Football Union v Consolidated Information Services Ltd applied. The remedy was not limited to cases where disclosure was a last resort, but it had to be a necessary and proportionate response.
4. Anonymous complaints and online communications engaged freedom of expression and potentially privacy rights under Articles 8 and 10 ECHR. The court had to balance those rights with the appellant’s Article 6 rights using the approach in In re S (a child). Neither Article 6 nor open justice created an absolute entitlement to disclosure.
5. Even if the threshold issue had been satisfied, the refusal was independently justified. The appellant could seek an extension of time, serve the identified defendants, plead and particularise her claim, and pursue disclosure in the substantive proceedings. Waiting to see whether disclosure became available by those means was a proper case-management decision. The different outcome against the consenting Bar Standards Board was not illogical, and the costs orders followed the ordinary rule.

High Court (King’s Bench Division): Appeal from orders of Master McCloud dismissing Norwich Pharmacal applications against the Liberal Democrats and Stephen Dudhill. The appeal was dismissed.