1 February 2023|
Litigation, Disclosure and ADR Procedure
Applying for anonymity in the County Court or the High Court
Written by: Lucas Nacif
As a law firm we are very experienced in making anonymity applications in the Employment Tribunal and in the Civil Courts. Here we focus on the High Court.
This post provides an overview of how a party can apply for anonymity in the County Court or the High Court pursuant to CPR 39.2(4). This post also explores whether a party should apply for anonymity under CPR 39.2 in circumstances where the Employment Tribunal has already granted that party an anonymity order pursuant to rule 50 of the ET Rules 2013.
Anonymity under CPR 39
CPR 39.2(4) provides that “[t]he court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person”.
The Court of Appeal in XXX v Camden LBC  EWCA Civ 1468 summarised the principles applicable to CPR 39.2(4) (at §17-19):
•It is a fundamental rule of the common law that proceedings must be heard in public, subject to certain specified classes of exceptions;
•The court should be careful of creating exceptions to open justice by a process of analogy, except in the most compelling circumstances;
•The common law has long recognised a duty of fairness towards parties and persons giving evidence, and balanced that against the public interest in open justice;
•With the advent of the Human Rights Act 1998, the courts have also been able to give effect to the rights of parties and witnesses who may have their Convention rights engaged, such as the person’s right to private life under Article 8 ECHR (balanced with the rights of the public and the press to know about court proceedings under article 10 ECHR); and
•Lord Steyn held in Re S (A child)  UKHL 47 at §17 that: “where the values under the two articles [of the ECHR] are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary…the justifications for interfering with or restricting each right must be taken into account” and “the proportionality test must be applied to each”.
In addition, victims of sexual offences have the right to life-long anonymity under section 1 of the Sexual Offences (Amendment) Act 1992. Such right applies where the victim makes an allegation of a sexual offence, meaning that a police report should suffice for section 1 to be engaged. However, just because a police complaint has been made and the life-long right exists, a Claimant should still make an application for anonymity to the court – it will not be given automatically.
An application under CPR 39.2(4) should be made using Form N244, accompanied by a draft anonymity order and a witness statement made in support of the application.
Should I apply for anonymity under CPR 39 if the Employment Tribunal has already granted me an anonymity order?
In practice, the approach an Employment Tribunal takes under rule 50 of the ET Rules 2013 is not dissimilar to how a County Court or High Court approaches an anonymity application under CPR 39.2(4). Simler J held in BBC v Roden  IRLR 627 (an EAT decision) that the starting point under rule 50 is that the Employment Tribunal should uphold the right to freedom of expression under article 10 ECHR and the principle of open justice, which is of “paramount importance and derogations from it can only be justified when strictly necessary as measured to secure the proper administration of justice” (at §22).
However, in our experience, parties should apply for a separate anonymity order under CPR 39.2(4) even if the Employment Tribunal has granted them anonymity under rule 50 of the ET Rules 2013 in related proceedings. This is because the County Court and the High Court might take the view that an anonymity order under rule 50 solely applies to proceedings in the Employment Tribunal. This might be the case even if a Claimant begins proceedings in the County Court to enforce an Employment Tribunal award.