CWD v Verity Nevitt
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Steyn,Mrs Justice Steyn DBE |
| Judgment Date | 21 May 2020 |
| Neutral Citation | [2020] EWHC 1289 (QB) |
| Date | 21 May 2020 |
| Docket Number | Case No: QB-2019-000939 |
| Court | Queen's Bench Division |
[2020] EWHC 1289 (QB)
THE HONOURABLE Mrs Justice Steyn DBE
Case No: QB-2019-000939
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Gervase de Wilde (instructed by Cohen Davis Solicitors) for the Claimant
Catrin Evans QC and Emma Foubister (instructed by Hodge Jones & Allen Solicitors) for the First and Second Defendants
Sam Tobin appeared on behalf of PA Media (intervening)
The Third Defendant did not appear and was not represented
Hearing date: 30 April 2020
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
THE HONOURABLE Mrs Justice Steyn DBE
A. Introduction
The claimant has brought a claim in defamation, misuse of private information and harassment against the three defendants. The first and second defendants are sisters and the third defendant is their brother.
The central core of the claim concerns the second defendant's allegation that, on the night of 24 August 2017, the claimant raped her (“ the second defendant's allegation”) and the first defendant's allegation that, earlier on the same night, the claimant sexually assaulted her (“ the first defendant's allegation”, together “ the first and second defendants' allegations”). In April 2018, the second defendant reported the claimant to the police and, in July 2018, the first defendant did so, too. Following an investigation, on 4 February 2019 the police told the claimant that they would take no further action.
The claimant denies the first and second defendants' allegations. The first and second defendants aver that their allegations are true. Where the truth lies will be a matter for determination on the evidence at the trial of this claim.
This judgment addresses two applications, both made by notices dated 29 November 2019, namely:
i) An application by the first and second defendants by which they seek to lift their own anonymity as defendants in these proceedings (“the application to vary the anonymity order”); and
ii) An application by the claimant for a reporting restriction order to be made under s.11 of the Contempt of Court Act 1981 to protect the claimant's anonymity in these proceedings (“the application for a reporting restriction order”).
In addition, as all derogations from open justice must be kept under review by the court, and varied or discharged if they cease to be necessary, I have also addressed the question whether any variation should be made to the order of Dingemans J (as he then was) made on 15 March 2019, insofar as it permitted the pseudonymisation in these proceedings of the claimant and the third defendant.
B. The nature of the hearing
The hearing of the applications was public. It took place remotely, as a video hearing, in accordance with the Protocol Regarding Remote Hearings dated 26 March 2020 and Practice Direction 51Y, paragraph 3. Members of the press and the public were able to obtain access to this hearing.
In accordance with paragraph 2 of the order of Nicklin J made on 21 November 2019, the claimant served the application for an RRO on PA Media (formerly the Press Association).
I am grateful to Counsel for the claimant, Mr de Wilde, and Counsel for the first and second defendants, Ms Evans QC and Ms Foubister, as well as to PA Media, for their excellent written and oral submissions on the applications.
C. The history of the proceedings
Prior to the issue of the claim, on 15 March 2019, the claimant made an application without notice to the defendants for an interim injunction to restrain what is alleged to be the harassment of the claimant by the defendants and the misuse of private information belonging to the claimant by the defendants. At that stage, the proposed claim did not include a defamation claim. The application was supported by a witness statement dated 13 March 2019 made by the claimant (“ the claimant's 1 st statement”).
Dingemans J refused to grant an injunction: see CWD v MXN and others [2019] EWHC 2553 (QB). In doing so, he referred to s.12 of the Human Rights Act 1998 (“the HRA”), the rule in Bonnard v Perryman [1891] 2 Ch 269 and the observation of Warby J in LJY v Persons Unknown [2017] EWHC 3230 [2018] EMLR 19 at [14] that if the court detected “ cause of action shopping, meaning that if the court concluded that the claimant's true purpose was to prevent damage to his reputation”, the court would apply the more demanding Bonnard v Perryman rule. Dingemans J expressed some concern that there was an element of cause of action shopping in this case, noting that some passages in the claimant's evidence “ indicate that his real concern is to prevent the wider publication of material which he says is untrue rather than which is private”.
However, Dingemans J granted an anonymity order in the following terms:
“2. Pursuant to section 6 HRA and/or CPR r.39.2 the Judge, being satisfied that it is strictly necessary, ordered that:
a) the Claimant be permitted to issue these proceedings naming the Claimant as CWD and giving an address c/o the Claimant's solicitors;
b) the Claimant be permitted to issue these proceedings naming the Defendants as (1) MXN (2) QYR (3) TZU (4) UAV and notifying the Defendants' home addresses once obtained by filing the same in a sealed letter which must remain sealed and held with the Court office subject only to the further order of a Judge or the Senior Master of the Queen's Bench Division;
c) there be substituted for all purposes in these proceedings in place of references to the Claimant by name, and whether orally or in writing, references to the letters CWD; and
d) if necessary, there be substituted for all purposes in these proceedings in place of references to the Defendants by name whether orally or in writing, references to the letters (1) MXN, (2) QYR, (3) TZU, (4) OAV.”
Dingemans J gave the following reasons for making the anonymity order at [3]:
“I am, however, satisfied that it is necessary at this stage to anonymise the identity of the claimant. This is so that this judgment can be given in open court without rendering the proceedings futile. I am also satisfied that it is necessary at this stage to anonymise the identities of the defendants, again to avoid rendering the proceedings futile and because two of the defendants assert that they are the victims of sexual offences and therefore have the benefit of lifelong immunity.”
Dingemans J also ordered that no copies of the statements of case, witness statements and applications will be provided to a non-party without further order of the court; and any non-party seeking such access must make an application on proper notice to the parties.
The claim was issued and served on 18 March 2019. The claim form indicated that the claimant intended to pursue the two causes of action identified at the hearing before Dingemans J, namely, misuse of private information and harassment. There were four defendants identified by ciphers on the claim form, however the claim against the fourth defendant has been discontinued.
The first and second defendants (then acting in person) sent an email to the court asking for their anonymity to be lifted. On 16 October 2019, Warby J made directions for further consideration of the anonymity order. The matter came on for hearing before Nicklin J on 21 November 2019. At that hearing, the claimant made an oral application for a reporting restriction order and opposed the first and second defendant's request to lift their anonymity. Accordingly, Nicklin J gave directions for the issue and service of the two applications which are now before me, as well as giving case management directions.
The first and second defendants' application to vary the anonymity order was filed and served on 29 November 2019, supported by two witness statements made the same day by the first defendant and the second defendant (respectively, “ Verity Nevitt's 1 st statement” and “ Lucy Nevitt's 1 st statement”). The claimant served evidence in response in the form of a witness statement dated 19 December 2019 made by Ms Filiz Kiani, a solicitor in the firm acting on behalf of the claimant (“ Ms Kiani's 2 nd statement”).
The claimant's application for a reporting restriction order was also filed and served on 29 November 2019, supported by a witness statement made by Ms Kiani, dated 27 November 2019 (“ Ms Kiani's 1 st statement”). The first and second defendants served a document entitled “ Defendants' evidence in answer to the Reporting Restriction Order”, dated 13 December 2019, signed by the first defendant (“ Verity Nevitt's 2 nd statement”).
On 9 January 2020, PA Media filed written submissions, drafted by Mr Mike Dodd (legal director), on the issues of anonymity and reporting restrictions.
The claimant served particulars of claim on 16 December 2019. Whereas, when the matter came before Dingemans J, the claimant's stated intention was to bring a claim for misuse of private information and harassment, a defamation claim has now been pleaded and pursued in the particulars of claim.
The first and second defendants served a defence on 17 January 2020, at a time when they were acting in person. On 15 April 2020, they served an Amended Defence, settled by Counsel, by way of substitution.
The claimant's Reply is due to be served by 25 May 2020.
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