Dr Piepenbrock v London School of Economics & Political Science case note

The Employment Appeal Tribunal (“EAT”) granted an indefinite anonymity order which (i) anonymised Ms D in the EAT judgment; (ii) controlled public access to documents lodged with the EAT; and (iii) prevents any disclosure of Ms D’s identity.

In Dr Piepenbrock v London School of Economics & Political Science [2022] EAT 119 (“Piepenbrock v LSE” or “Piepenbrock”), the EAT granted an indefinite anonymity order to protect Ms D’s identity, holding that her right for private life under Article 8 of the European Convention of Human Rights (“ECHR”) were engaged and that, balancing the principles of open justice, the Appellant’s right to a fair trial under Article 6 ECHR and the right of freedom of expression under Article 10 ECHR, the balance came firmly in favour of Ms D’s Article 8 right.

We at Farore Law often deal with cases which gives rise to issues of privacy and anonymity, including orders under rule 50 of the ET Rules. Piepenbrock v LSE is an interesting case as the EAT granted an indefinite anonymity order. Piepenbrock also illustrates how a court balances the competing interests between upholding the principles of open justice and protecting the ECHR rights of an individual that would benefit from an anonymity order.

Facts

This was an application for an anonymity order sought by the Respondent, LSE, to protect the identity of Ms D, a young woman whom the appellant, Dr Piepenbrock, had made lurid allegations which the Employment Tribunal (“ET”) found to be untrue.

In summary, Dr Piepenbrock had brought claims against the LSE in the ET for discrimination and unfair dismissal and in the High Court for personal injury. He alleged that on 12 November 2012, “Ms D sexually harassed and exposed herself to her supervisor, the innocent, unsuspecting and happily-married Dr Piepenbrock, during the course of her employment at the LSE.” Dr Piepenbrock went on to state that Ms D committed “gross sexual misconduct” and had made false and malicious complaints and a “false grievance” against him. The way in which the LSE dealt with that grievance resulting in Dr Piepenbrock having a “major autistic meltdown”, which led to him taking sick-leave for 20 months and having his employment terminated on 2 September 2014.

Following Dr Piepenbrock’s High Court claim being dismissed in 2018, the LSE applied to strike out his claims in the ET, partly in reliance of the contents of a website which he had effective control of. The website named and identified Ms D, quoted selectively from the High Court judgment to cast her in a negative light, referring to her as a “stalker”, posting numerous photos of her and making sexual references of her.

In 2019, Dr Piepenbrock started another High Court claim against the LSE for defamation. Ms D was a named defendant in that matter. An anonymity order was made for Ms D’s benefit in that case. Dr Piepenbrock then brought another claim against the LSE and 14 other named defendants (including Ms D) in the High Court. The High Court again granted an anonymity order for Ms D’s benefit.

The ET proceedings were stayed between January 2016 to November 2019, as Dr Piepenbrock had brought High Court proceedings during that period which covered similar grounds to his ET claim.

The ET judgment of 8 June 2022 dismissed Dr Piepenbrock’s claim and described him as an unreliable witness and someone who demonstrated “manipulative and dishonest” behaviour. The ET further stated that his “vilification” of Ms D and others on a public website demonstrates “his willingness to seek to destroy her reputation” and that his antipathy towards Ms D “deepened and intensified with time”. Dr Piepenbrock appealed the judgment (which the EAT had dismissed on 21 December 2021), which prompted the LSE to make an anonymity order to protect Ms D’s identity.

In the application for anonymity at the EAT, Dr Piepenbrock vigorously sought to resist the making of the anonymity order, arguing that the principle of open justice must prevail.

Legal Background

Relevant to Piepenbrock is rule 50 of the ET Rules, which provide that:

“(1) A Tribunal may at any stage of the proceedings, on its own initiative or on application, make an order with a view to preventing or restricting the public disclosure of any aspect of those proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person or in the circumstances identified in section 10A of the Employment Tribunals Act.

(2) In considering whether to make an order under this rule, the Tribunal shall give full weight to the principle of open justice and to the Convention right to freedom of expression.

(3) Such orders may include—

[…]

(b) an order that the identities of specified parties, witnesses or other persons referred to in the proceedings should not be disclosed to the public, by the use of anonymisation or otherwise, whether in the course of any hearing or in its listing or in any documents entered on the Register or otherwise forming part of the public record;

(c) an order for measures preventing witnesses at a public hearing being identifiable by members of the public;

(d) a restricted reporting order within the terms of section 11 or 12 of the Employment Tribunals Act.

[…]

(5) Where an order is made under paragraph (3)(d) above—

(a) it shall specify the person whose identity is protected; and may specify particular matters of which publication is prohibited as likely to lead to that person’s identification;

(b) it shall specify the duration of the order;

(c) the Tribunal shall ensure that a notice of the fact that such an order has been made in relation to those proceedings is displayed on the notice board of the Tribunal with any list of the proceedings taking place before the Tribunal, and on the door of the room in which the proceedings affected by the order are taking place; and

(d) the Tribunal may order that it applies also to any other proceedings being heard as part of the same hearing.

(6) “Convention rights” has the meaning given to it in section 1 of the Human Rights Act 1998”.

When a Tribunal determines an application under rule 50, the principle of open justice is always the starting point and rule 50(2) states that the Tribunal must take into account this principle when considering granting a privacy order, as well as the right to freedom of expression under Article 10 ECHR.

The Supreme Court in Cape Intermediate Holdings Ltd v Dring [2019] UKSC 38 stated at paragraphs 42 and 43 that the principle of open justice is two-fold: “[t]he first is to enable public scrutiny of the ways in which court decide cases” and “the second goes beyond the policing of individual courts and judges. It is to enable the public to understand how the justice system works and why decisions are taken.”

The Supreme Court in Cape also stated at paragraph 41 that this constitutional principle “applies to all courts and tribunals exercising the judicial power of the state” and that “unless inconsistent with statute or rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question.”

The principle of open justice, can, however, be derogated. As made clear by rule 50(1) of the ET Rules, this includes circumstances where a Tribunal decides to grant a privacy order to protect an individual’s ECHR rights or where the interests of justice requires the Tribunal to do so.  In Fallows v News Group Newspapers Ltd [2016] ICR 801 at paragraph 48, Simler J summarised the following principles relevant to an application under rule 50:

“(i) That the burden of establishing any derogation from the fundamental principle of open justice or full reporting lies on the person seeking that derogation. It must be established by clear and cogent evidence that harm will be done by reporting to the privacy rights of the person seeking the restriction on full reporting so as to make it necessary to derogate from the principle of open justice.

(ii) Where full reporting of proceedings is unlikely to indicate whether a damaging allegation is true or false, courts and tribunals should credit the public with the ability to understand that unproven allegations are no more than that. Where such a case proceeds to judgment, courts and tribunals can mitigate the risk of misunderstanding by making clear that they have not adjudicated on the truth or otherwise of the damaging allegation.

(iii) The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the employment tribunal proceedings are essentially private and of no public interest accordingly.”

Furthermore, a Tribunal may grant an anonymity order in favour of a non-party. TYU v ILA Spa Ltd EA-2019-000983-VP, provides a summary of key principles applicable in determining an anonymity order in favour of non-parties (including instances where the individual which would benefit from the anonymity order is not a witness to the proceedings):

·       The EAT in TYU stated at paragraph 62 that a relevant consideration that the Tribunal should take into account is that whether the person to whom the anonymity order will benefit is a non-party is a relevant consideration, “in particular where Article 8 is relied on in relation to the protection of reputation”.

·       In conducting a balancing exercise under rule 50, “some identification of the competing rights in play, including the alleged basis of the Article 8 engagement and the nature and extent of the impact relied upon; the reasons for the potential interference with each of the competing rights and the relative proportionality of the same will usually be required” (at paragraph 76).

·       The EAT went on to state at paragraph 81 that in assessing proportionality, the Tribunal should take into account factors, such as: “[t]he fundamental importance attached to open justice”, “[t]he nature and extent of the restriction sought”, “[t]he extent to which naming the Appellant is in the public interest and relevant to the contents of the…Judgment, including whether the intelligibility of the judgment would be impacted upon by taking the steps she seeks” and the “reason for the proposed interference, that is to say the nature and strength of the Article 8 rights in play”.

EAT Judgment

Although the EAT rules does not contain any express provision similar to rule 50 of the ET Rules, HHJ Shanks stated in Piepenbrock that “there is no doubt that the EAT has a jurisdiction analogous” to rule 50 of the ET Rules, by virtue of section 30(3) of the Employment Tribunals Act 1996.

On the facts, HHJ Shanks was satisfied that Ms D’s rights under Article 8 ECHR were engaged and that unless an anonymity order was made, there would be a substantial risk that her rights under Article 8 would be contravened in a serious way.

The judge took into account Ms D’s relative youth and vulnerability, the fact that the central allegations made by Dr Piepenbrock against here were found to be untrue and the length of the dispute between Dr Piepenbrock and the LSE. The judge also took into account Dr Piepenbrock’s broader conduct, such as publishing derogatory statements against Ms D on a website.

On the facts, these matters outweighed the principle of open justice and Dr Piepenbrock’s rights under Article 6 ECHR and the rights to freedom of expression given to him and others (eg the press) under Article 10 ECHR. HHJ Shanks commented that it was hard to see how granting an anonymity order in favour of Ms D would seriously undermine the principles of open justice, given that the hearing of Dr Piepenbrock’s appeal was perfectly comprehensible without including the detail of Ms D’s identity. Likewise, it was hard to see how his right under Article 6 ECHR would be undermined on the facts.

HHJ Shanks was also satisfied that the right to freedom of expression under Article 10 ECHR would not be seriously undermined, given that it would remain open to anyone to describe the case in all its details, save for identifying Ms D. The fact that Dr Piepenbrock’s allegations against Ms D were lurid and found to be untrue substantially lessened the weight to be attributed to the right under Article 10 ECHR, insofar as it covers the details of her identity.

At any event, HHJ Shanks held that it was in the interests of justice to grant an anonymity order. The judge commented at paragraph 16 that Dr Piepenbrock “continues to bear a very strong animus against Ms D” and that, without an anonymity order, he would “very likely use any document associated with this appeal (including the judgment) in an attempt to “name and shame”, vilify and harass her and that he will not stop doing so voluntarily.”

In granting an order, HHJ Shanks stated that it would be insufficient to simply anonymize the judgment to protect Ms D’s rights and the interests of justice. Rather, the judge granted a broad anonymity order which also: (i) limits access to documents lodged with the EAT which may contain Ms D’s details in order to prevent third parties from obtaining details of her identity and (ii) prevents any disclosure of Ms D’s identity by Dr Piepenbrock or anyone else. The judge also considered it appropriate to make the order indefinite in length, with the possibility of Dr Piepenbrock or any other third party being allowed to apply to the Tribunal to revoke or vary the order if any compelling reasons later emerge.

What to take away

Although the EAT Rules do not contain any express provision similar to rule 50 of the ET Rules, HHJ Shanks was satisfied that the EAT nonetheless had a jurisdiction analogous to that of the ET. At any event, Piepenbrock demonstrates that one of the grounds that the EAT may grant an anonymity order is where it is in the interests of justice to do so.

Piepenbrock is also an interesting case as it illustrates how a court carries out the balancing exercising set out in rules 50(1) and (2) of the ET Rules. The EAT decision shows that such balancing exercise is fact-sensitive and that a Tribunal may be persuaded to grant an anonymity order where the Applicant can demonstrate that such order would not substantially undermine the principle of open justice or the Respondent’s Article 6 and/or Article 10 rights.

The EAT decision can be accessed here.