Denny Taylor & Ors. v David Evans & Ors.

The open justice principle may be derogated from only where non-disclosure is necessary to secure the proper administration of justice and protect the interests of a party or witness. Anonymity may be justified by evidence of a real risk of extremist abuse or physical harm, and by unusual consequences for adoption or employment. The court need not investigate anonymity for a represented party who has made no application. A strike-out application should not determine an arguable representative or nominee claim unless the pleaded case is unwinnable; however, the legal and factual basis of the claim must be pleaded clearly. Legal professional privilege is lost only where the circumstances of communication would have caused a reasonable recipient to understand that confidentiality was absent. Ownership of the storage device and unrestricted forensic access do not, by themselves, destroy confidentiality.

The claimants brought claims concerning the publication of their personal data in a report relating to antisemitism within the Labour Party. They sought anonymity for two claimants and permission for all claimants to withhold their addresses from public documents. The Labour Party, represented by David Evans, brought a Part 20 claim against individuals alleged to have leaked the report and faced an unless-order application concerning its capacity to bring that claim.

A separate application concerned whether an email sent by Karie Murphy to her solicitor, and later found on a Labour Party laptop during a forensic investigation, remained privileged. The court therefore determined issues concerning anonymity, pleading and representative capacity, and confidentiality and privilege.

1. Anonymity. The applications by EZE and EHL were granted. The court applied the open justice principles in JIH v News Group [2011] EWCA Civ 42. EZE’s adoption proceedings created an unusual risk that online threats or abuse could prejudice the assessment of suitability or deter continuation of the claim. EHL faced a particular risk of extremist abuse generating professional difficulties. The orders were limited and could be reconsidered if circumstances changed.
2. The court was not required to consider anonymity of another represented claimant who had made no application. A represented litigant’s autonomy, and the practical burden of proactive investigation by the court, weighed against imposing such a duty.
3. The claimants’ addresses could be withheld. Material appearing on extremist websites, combined with the appreciable risk of attacks and distress to the claimants and their families, justified that limited restriction.
4. Part 20 claim. The unless-order application was refused. The argument that the Labour Party could sue in its own name or through a nominee by analogy with Taff Vale Railway Co v Amalgamated Society of Railway Servants [1901] AC 426 and Bonsor v Musicians’ Union [1956] AC 104 was arguable. It could not be determined summarily because the case was not shown to be unwinnable. The pleadings nevertheless had to identify the primary and alternative factual and legal bases on which David Evans was said to be entitled to sue.
5. Privilege. The email was prima facie privileged because it was a request for legal advice made within a solicitor-client relationship. Applying the approach summarised in Jinxin Inc. v Aser Media Pte Ltd [2022] EWHC 2856 (Comm) and the test in Coco v AN Clark (Engineers) Ltd [1968] FSR 415, confidentiality depended on an intensive assessment of the circumstances. The Labour Party laptop, the absence of search restrictions, and review by a non-lawyer did not destroy confidentiality. The email’s contents and the heading of the solicitor’s reply made its privileged character apparent. The declaration sought was refused.