JWS v JZX

Anonymity is an exceptional derogation from open justice. The court must balance the individual’s Article 8 rights against Article 10 freedom of expression and the public interest in open justice. An order may be justified at an early stage where compelling, specific evidence shows that identification would create serious risks to health, private and family life, reputation or associated financial interests, particularly where the underlying claim faces significant evidential difficulties. Each factor must be assessed proportionately; embarrassment, stigma or reputational concern alone will rarely suffice. The order should be no wider than necessary and may be revisited if circumstances change or new evidence emerges.

The claimant brought a claim alleging a single historic sexual assault when the claimant was a minor. The defendant, a well-known public figure, applied for anonymity before the claim form had been served. The claimant did not oppose the application, and the defendant agreed that anonymity could be waived if the claim ultimately succeeded against him.

The court determined the application on the papers and considered the defendant’s Article 8 rights, the claimant’s vulnerability and the risk of jigsaw identification, against Article 10 and open justice. The central issue was whether the exceptional evidence justified anonymising the defendant at this early stage without imposing an unfettered restriction on reporting.

1. Anonymity order granted. The court granted an order anonymising the defendant, previously made on the papers and later amended under the slip rule. The order was limited to identification and did not prohibit full reporting of the proceedings.
2. The starting point was the precious principle of open justice, requiring justification for any derogation. The court balanced the defendant’s Article 8 rights against Article 10 and the public interest in open justice, taking account of the risk that identifying the defendant would permit jigsaw identification of the claimant.
3. The defendant’s Article 8 rights were engaged by the nature of the allegation. Identification would likely expose him to derogatory opinions and imply criminality, although the police investigation had concluded that there was no realistic prospect of conviction. That conclusion was relevant but not conclusive.
4. The court gave substantial weight to compelling evidence of three risks. First, documentary material raised significant evidential difficulties for the claim, including a substantial issue as to whether the defendant could have committed the alleged assault. Secondly, specific medical evidence established a defined and non-speculative risk to the defendant’s health. Thirdly, identification created a real risk of irreparable reputational and financial damage extending to associated businesses and individuals.
5. No single reputational or financial concern would have justified anonymity alone. Taken together with the health evidence, the evidential challenges, the early procedural stage and the absence of sufficient countervailing public interest, the interference with open justice was necessary and proportionate.
6. The order remained subject to later reconsideration. The court could remove or vary anonymity if new evidence justified it, and any interested party could apply on seven days’ notice. The court also acted in accordance with the overriding objective in CPR 1.1 and its duty under section 6 of the Human Rights Act 1998.