Denny Taylor & Ors. v David Evans & Ors.

The claimants sued in respect of a leaked internal Labour Party report, alleging breaches of the GDPR, misuse of private information, breach of confidence and unlawful discrimination under the Equality Act 2010. The court applied the established open justice/anonymity principles (see JIH and CPR provisions) and held that two claimants (the second and fifth) should remain anonymous in public versions of claim forms and statements of case, and that all claimants may withhold addresses from publicly available documents because disclosure would risk their safety and wellbeing. The court refused the third parties' application for an 'unless' order but directed amended pleadings so the defendant must set out the factual and legal bases on which Mr Evans is entitled to bring the Part 20 claim on behalf of the Party or members. Finally, applying the Coco confidentiality test and recent authorities about waiver and disclosure (including Jinxin), the court held that an email from Ms Murphy to her solicitor found on a Party-owned laptop remained confidential and privileged and refused the defendant's declaration that it was not privileged.

Background and parties:

• The claimants are nine individuals named in an internal report of the Labour Party's Governance and Legal Unit; the report was leaked and published online. The original defendant named as 'the Labour Party' was re-styled by order as 'David Evans (as representative of the Labour Party)'. Third parties alleged to have leaked the report were joined and the Party brought a Part 20 claim against them.

Nature of the applications:

• Anonymity application: the second and fifth claimants sought permission to remain anonymous (use ciphers) in the claim form and statements of case and all claimants sought to omit addresses from publicly accessible court papers.
• Third parties' 'unless' application: they sought an order striking out the Part 20 claim unless the defendant applied to substitute a different party; by the hearing they sought instead that the defendant be ordered to amend its Particulars of the Additional Claim to explain the basis on which Mr Evans could bring the claim for the Party.
• Defendant's privilege application: the defendant sought a declaration that an email dated 8 April 2020 from Ms Murphy to a solicitor was not privileged and could be used in the proceedings.

Issues framed by the court:

1. Whether anonymity orders were justified despite the principle of open justice, having regard to CPR, relevant authorities (JIH, Lupu, Re Officer L) and the Article 8/10 balancing exercise.
2. Whether the Part 20 claim was properly pleaded in the name of Mr Evans and, if not, whether an unless order striking out the claim was required or whether pleadings should be amended to set out the legal basis (including the argument by analogy with trade union cases such as Taff Vale and Bonsor) for a representative/nominee claim by an unincorporated political party.
3. Whether the 8 April 2020 email remained confidential and therefore privileged despite being discovered on a Party-owned laptop examined during an internal investigation; in particular whether disclosure to non-lawyers or storage on the employer’s device destroyed confidentiality (applying Coco and recent authority such as Jinxin).

Court’s reasoning and conclusions:

• On anonymity, the court concluded that the limited derogations sought were necessary to secure the proper administration of justice under CPR 39.2(4). On the facts the court saw real risks from extremist online publication and adverse effects on adoption and sensitive employment prospects for the second and fifth claimants; anonymity and non-disclosure of addresses were granted, but the orders were limited in scope and subject to future reconsideration.
• On the third parties' application, the court found it arguable that an unincorporated political party could bring proceedings by analogy with unions, but the pleadings lacked clarity. Rather than strike out the claim, the court refused the unless order and directed that the defendant amend to plead the primary and any alternative bases on which Mr Evans claims to act for the Party or a class of members, so issues are clear at trial.
• On privilege, the court applied the Coco test and the Jinxin guidance: although the laptop was Party-owned and examined by non-lawyers during an internal inquiry, the overall circumstances showed the communication was imparted in circumstances importing an obligation of confidence and a reasonable recipient would have understood that. The email remained confidential and privileged and the declaration sought was refused.

This is a first-instance judgment. The court granted limited anonymity to the second and fifth claimants and permitted all claimants to withhold addresses from public documents, because on the facts the risk from online extremist publication and the impact on adoption/employment justified a derogation from open justice. The court refused the third parties' unless order but directed amendment of the Particulars of the Additional Claim to set out the legal and factual basis on which Mr Evans is said to sue for or on behalf of the Party or members. The court refused the defendant's declaration that Ms Murphy's 8 April 2020 email was not privileged, holding that confidentiality was not lost.