A mass outbreak of anonymity: CDE and FGH v MGN and LMN

20 January 2011. Published by Keith Mathieson, Partner

It is not unusual for claimants in privacy cases to be anonymised. It is less common for defendants and distinctly unusual for non-parties.

The effect of Eady J's order in CDE v MGN [2010] EWHC 3308 is that we do not know the identity of the two claimants, the second defendant, her solicitor, her two PR advisers or the journalist with whom she had a number of meetings and conversations.  The only party identified in Eady J's lengthy judgment is the first defendant MGN Ltd, publisher of the Sunday Mirror.  Although the solicitor for the second defendant (who also represented MGN) is not identified, the solicitor representing the claimants is identified, as are Counsel for the parties.

This was a misuse of private information claim in which the two claimants sought an interim injunction preventing the two defendants from publishing private information about them.  The first claimant is described in the judgment as someone who often appears on television.  The second claimant is his wife.  The second defendant is described as a single mother on disability benefit who had "a kind of quasi-relationship" with the first claimant which seems to have been conducted mainly by phone, text messages, emails and tweets.  The second defendant wished to sell her story to the Sunday Mirror.

Eady J granted an injunction to the claimants, being satisfied that they were likely to obtain an injunction at trial preventing "intrusions of the kind contemplated by the defendants".  On the question of whether the parties should be anonymised, he ruled that it was necessary and proportionate to withhold the identities of the parties (apart from MGN's):

There is no point in any longer anonymising the First Defendant, since I have identified MGN Ltd in paragraph [5] above and throughout the judgment. As to the individual parties, however, it seems to me self-evident that to identify either of them would entirely defeat the court's purpose in granting the injunction. That which it is intended should be kept private, until the trial, would to all intents and purposes become public: there would be no point in having a trial. [86]

Eady J then had to consider whether to anonymise certain other individuals in his judgment.  In the course of his judgment, Eady J had made observations which, in his words, "might be thought not to reflect every well" on the second defendant's solicitor, her PR adviser and his assistant and the journalist concerned.  Before he made his judgment public, the judge was asked by Counsel for the defendants to consider anonymising those four individuals.  (The solicitor was, according to the judgment, introduced to the second defendant by her PR adviser with whom the PR adviser had worked before.  It seems that the same solicitor then proceeded to act for MGN as well.)

Eady J agreed with the "very unusual" request for anonymity, but he did so "not without hesitation" [86].  He explained his reasons as follows:

The reason for taking such an unusual course really springs from the nature of the exercise a judge is required to carry out under s.12(3) of the Human Rights Act. Although it might be thought that my conclusions do not reflect very well on those people, I have been at some pains to emphasise that I am not making findings about them at this stage. These hearings have not been part of a trial. All I am required to do is to try to decide on incomplete (and untested) evidence what is "likely" to be the outcome at trial.

Meanwhile, says Mr James Price [counsel for the defendants], it might give rise to unfairness if casual observers interpret my observations as though they were the ultimate findings. It is true that much of what I have said is based on recordings and facts which are incontrovertible but, even so, upon closer examination facts sometimes emerge in a different light. That is why I was prepared to go along with counsel's suggestion for the time being. I was reminded of the decision in R v Legal Aid Board, ex parte Kaim Todner [1999] QB 966 and I bear in mind the important policy considerations addressed in that case but, for the reasons canvassed by Mr James Price, I will grant the anonymity to the non-parties on a temporary basis. [88 and 89]

The judge made it clear that the issue of anonymity is, on the authorities, a case-sensitive matter and it does not follow from Eady J's judgment that a person about whom adverse remarks are made in a judgment on an interim matter would necessarily have a case for anonymity in any future case.  Having regard to the fact that Eady J was at pains to make it clear in his judgment that his findings were interim findings only and the position might well be different at trial, it is not immediately clear why he found it appropriate to grant anonymity in this case, thereby departing from the normal open justice rule.  It would of course be different if disclosing the identity of non-parties might of itself lead to the identification of the parties.

See further section 10.3 of the Privacy Law Handbook

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