CVB v MGN Ltd
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat,THE HONOURABLE MR JUSTICE TUGENDHAT |
| Judgment Date | 03 May 2012 |
| Neutral Citation | [2012] EWHC 1148 (QB) |
| Docket Number | Case No: HQ12X00440 |
| Court | Queen's Bench Division |
| Date | 03 May 2012 |
[2012] EWHC 1148 (QB)
The Honourable Mr Justice Tugendhat
Case No: HQ12X00440
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Hugh Tomlinson QC (instructed by Atkins Thomson) for the Claimant
Gavin Millar QC (instructed by Reynolds Porter Chamberlain) for the Defendant
Hearing dates: 19 April 2012
CPR Part 16 and the Practice Directions 7A and 16 to the CPR give effect to what have long been some of the requirements of open justice. PD16 para 2.2 provides that "The claim form must include an address at which the claimant resides or carries on business", (although para 2.5 refers to the court dispensing with that requirement). PD16 para 2.6 provides that
"The claim form must be headed with the title of the proceedings, including the full name of each party. The full name means, in each case where it is known: (a) in the case of an individual, his full unabbreviated name and title by which he is known; …"
CPR Part 7 .1 provides that "Proceedings are started when the court issues a claim form at the request of the claimant".
If a claim form is to be issued and served which does not comply with the requirements of PD 16 on identifying the claimant, then the intending claimant must apply to the court for a dispensation from those requirements before the claim form is issued.
A defendant to an action must be served with a claim form, and will be entitled to production of documents from the court pursuant to CPR r.5.4B.
The rights of a non-party to see documents from the court records are more restricted than the rights of a party. The rights of a non-party are set out in CPR r.5.4C:
"(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of – (a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;…
(3) A non-party may obtain a copy of a statement of case or judgment or order under paragraph (1) only if – (a) where there is one defendant, the defendant has filed an acknowledgment of service or a defence;… (c) the claim has been listed for a hearing; or (d) judgment has been entered in the claim.
(4) The court may, on the application of a party or of any person identified in a statement of case – (a) order that a non-party may not obtain a copy of a statement of case under paragraph (1); (b) restrict the persons or classes of persons who may obtain a copy of a statement of case; (c) order that persons or classes of persons may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court; or (d) make such other order as it thinks fit.
(5) A person wishing to apply for an order under paragraph (4) must file an application notice in accordance with Part 23.
(6) Where the court makes an order under paragraph (4), a non-party who wishes to obtain a copy of the statement of case, or to obtain an unedited copy of the statement of case, may apply on notice to the party or person identified in the statement of case who requested the order, for permission."
A further provision of the CPR which may be invoked to protect the private lives of parties and others is CPR 31.22(2). The Claimant asks for an order under this rule for that purpose in respect of the witness statement of her solicitor. This rule reads:
"The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public."
CPR r.23 provides:
"23.1 In this Part –
'application notice' means a document in which the applicant states his intention to seek a court order; and
'respondent' means –
(a) the person against whom the order is sought; and
(b) such other person as the court may direct….
23.2 … (4) If an application is made before a claim has been started, it must be made to the court where it is likely that the claim to which the application relates will be started unless there is good reason to make the application to a different court…
23.3(1) The general rule is that an applicant must file an application notice.
(2) An applicant may make an application without filing an application notice if –
(a) this is permitted by a rule or practice direction; or
(b) the court dispenses with the requirement for an application notice.
23.4(1) The general rule is that a copy of the application notice must be served on each respondent.
(2) An application may be made without serving a copy of the application notice if this is permitted by – (a) a rule; (b) a practice direction; or (c) a court order.
23.9(1) This rule applies where the court has disposed of an application which it permitted to be made without service of a copy of the application notice.
(2) Where the court makes an order, whether granting or dismissing the application, a copy of the application notice and any evidence in support must, unless the court orders otherwise, be served with the order on any party or other person – (a) against whom the order was made; and (b) against whom the order was sought.
(3) The order must contain a statement of the right to make an application to set aside or vary the order under rule 23.10.
23.10(1) A person who was not served with a copy of the application notice before an order was made under rule 23.9, may apply to have the order set aside or varied.
(2) An application under this rule must be made within 7 days after the date on which the order was served on the person making the application".
CPR Practice Direction 25A para 5 provides:
"All applications made before a claim is commenced should be made under Part 23 of the Civil Procedure Rules. Attention is drawn in particular to rule 23.2(4)".
On 3 February 2012 the Claimant applied to the Master for a dispensation from each of the requirements that the name and address of the Claimant be given in the claim form. The Master gave the dispensation in the form of an order. The order of the Master also contained a provision relating to access to the court file, including that an application made by a non-party to the court be made on notice to the Claimant. The substance of the order was that the Claimant, who was at that time an intending claimant, be permitted to issue the Claim Form in which the title named her as "CVB" and in which her address is given as that of her solicitor.
The issue in this application now before the court is whether the order made by the Master on 3 February 2012 should be continued, and if so whether it should be continued in the form in which it was made.
Orders to this effect are commonly referred to as "anonymity orders". But there are other orders that the court has power to make to prevent publication of the identity of a party or a witness, and since they too are commonly called anonymity orders, I shall refer to the order made on 3 February as "the 3 February order" or as a "r.16 Order".
The order of 3 February also includes provisions which appear to be wider than any envisaged by CPR r.5.4C and r.16, including that
"2. There be substituted for all purposes in these proceedings in the place of references to the Applicant by name and whether orally or in writing, references to the letters CVB".
The Master did not himself draw up the order, and it was his requirement that there be added to it the reference to the right to apply to set it aside. I shall consider the form of the order separately from the issue of principle as to how such orders should be applied for.
The claim form was issued on 6 February 2012 and Particulars of Claim served on 20 February 2012. The Application Notice now before the court was issued on 28 March 2012. In it the Defendant asks that the court set aside or vary the 3 February order on the grounds that it was unjustifiably made without notice to the Defendant and that it is an unjustifiable derogation from open justice.
The 3 February order was made without notice to the (then) intended Defendant. The Defendant submits that that was wrong, and that notice should have been given to it as the intended defendant. The Defendant does not now submit that the fact that the order was made without notice is an independent ground for this court to refuse to continue the order. But the Defendant submits that what has occurred raises an issue of principle as to the proper practice to be followed by applicants for r.16 orders. It is for that reason that this application has been listed before me, instead of before the Master, who could otherwise have heard the application to vary or discharge his own order.
It is to be noted that there is no application or order in this action for an interim injunction of any kind. If there had been, then that application would have had to have been made to a judge, not a Master. It may well be that any r.16 order would also have been made by the judge who heard that application.
There is no dispute that the court has jurisdiction to make an order that the title to the proceedings need not contain the full name of each party as would otherwise be required.
It is to be noted that an order under CPR r.16 or r.5.4C is not in itself an injunction or order that the identity of a claimant referred to anonymously in the title to the action must not be disclosed. A non-disclosure order relating to the identity of a claimant may also be made by the court....
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