Denny Taylor v David Evans (as Representative of the Labour Party)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Chamberlain |
| Judgment Date | 24 April 2023 |
| Neutral Citation | [2023] EWHC 935 (KB) |
| Docket Number | Case No: QB-2021-001074 |
| Court | King's Bench Division |
and
[2023] EWHC 935 (KB)
Mr Justice Chamberlain
Case No: QB-2021-001074
QB-2021-001513
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
MEDIA AND COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Jonathan D.C. Turner and Natasha Hausdorff (instructed by 3D Solicitors Ltd) for the Claimants
Anya Proops KC, Zac Sammour and Michael White (instructed by Greenwoods Legal LLP) for the Defendant
Jacob Dean and Ben Hamer (instructed by Carter-Ruck LLP) for the Third Parties
Hearing dates: 21–23 February 2023
Approved Judgment
This judgment was handed down remotely at 10.30am on 24 April 2023 by circulation to the parties or their representatives by e-mail and by release to the National Archives.
Introduction
Following its election defeat in December 2019 under the Rt Hon. Jeremy Corbyn MP, the Labour Party (“the Party”) set about electing a new leader. Some members wanted to see Mr Corbyn's policies continued; others wanted a change. The election of the Rt Hon. Sir Keir Starmer MP was announced on 4 April 2020.
These claims arise out of the publication on 9 April 2020 of a report entitled The work of the Labour Party's Governance and Legal Unit in relation to antisemitism 2014–2019 (“the Report”). The Report was written by Party staff.
The claimants, individuals named in the Report, say that the inclusion in it of their personal data was a breach of their rights under the General Data Protection Regulation (“GDPR”), a misuse of their private information, a breach of confidence and unlawfully discriminatory contrary to the Equality Act 2010. They filed a claim, identifying the defendant as “the Labour Party”. That was subsequently changed, by order of Master Dagnall, to “David Evans as representative of the Labour Party”. David Evans is the General Secretary of the Party.
The defendant says that the Report was not published under its authority but leaked by the third parties for the purpose of undermining the Party's new leadership. The Party incurred substantial costs in dealing with the leak and has brought a Part 20 claim against the third parties.
There are three applications before me:
(a) The claimants' anonymity application. The claimants seek an order that the second and fifth claimants be permitted to remain anonymous and refer to themselves by ciphers in the claim form and statements of case and that all the claimants be permitted to omit their addresses from publicly accessible court papers. The defendant and third parties are neutral on this application, though they point out that derogations from the principle of open justice must be strictly justified.
(b) The third parties' unless order application. The relief sought on this application was originally an order that, unless the defendant applies to substitute for himself a person or persons other than those proposed so far, the Part 20 claim be struck out. The relief sought evolved during the course of the hearing. By the end of the hearing, the third parties sought an order that unless the defendant amends the Particulars of the Additional Claim to explain the basis on which it is said that the claim can be brought by Mr Evans on behalf of the Party, the claim be struck out.
(c) The defendant's privilege application. The relief sought is a declaration that an email sent by Ms Murphy to a lawyer, Martin Howe, on 8 April 2020, is not privileged and accordingly may be deployed in the proceedings.
(a) The claimants' anonymity application
The anonymity application before Johnson J
Before they filed the claim, the claimants sought permission to issue the claim form and file statements of case that identified them by cipher only. That permission was granted by Nicklin J pending a hearing and then confirmed by Johnson J after a hearing. He gave careful and detailed reasons, setting out the law and the applicable principles: see [2021] EWHC 3821 (QB). What follows is a summary of those principles, taken from his judgment. None of the parties suggests that these are wrong or incomplete.
The principle of open justice ( Scott v Scott [1913] AC 417, 463; R (Mohammed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 65, [2011] QB 218, [38]) gives rise to the “general rule that the names of the parties to an action are made public when matters come before the court and included in orders and judgments of the court”: JIH v News Group [2011] EWCA Civ 42, [2011] 1 WLR 1645, [21(1)]. These principles are reflected in the requirement in CPR 16 PD that the claim form must include an address at which the claimant resides or carries on business (para. 2.2) and must be headed with the title of the proceedings, including the full unabbreviated name of each party and the title by which he or she is known (para. 2.6). Para. 3.8(3) requires that statements of case also include the full name of the claimant. Statements of case are available for inspection by a non-party under CPR 5.4C(1).
However, the court has power to permit a claim form to be issued without it containing the claimant's name or address and to prevent public access to an unredacted statement of case: CPR 39.2(1) and ( 4), CPR 16 PD para. 2.5 and CPR 5.4C(4). The procedure for applying for such permission was explained in R v Westminster ex p. Castelli (1995) 28 HLR 125, 131 (Latham J). The application can be made without notice: CVB v MGN Ltd [2012] EWHC 1148 (QB), [48]–[50].
The principles to be applied were set out in JIH, at [21]:
“(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.”
CPR 39.2(4) provides:
“The court must order that the identity of any party or witness 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 party or witness.”
Johnson J noted that the order the claimants were seeking was a limited one. They were seeking permission for the claim form and statements of case to remain anonymous, but they were not seeking injunctive relief to prevent disclosure of their names by anyone who happened to know them. In a previous case ( Lupu v Raycoff [2019] EWHC 2525 (QB), [2020] EMLR 6, [21]), where a similar order had been sought, Nicklin J had said this:
“I struggle to see what the point of such an order would be in this case. Either there is justification for withholding the claimants' names from the public in these proceedings or there is not. If there is not, the court should not artificially place obstacles in the way of reporting of the case by adopting measures that simply make it more difficult for the media to report information upon which the court has placed no restriction…”
However, Johnson J distinguished Lupu because, in that case, it was likely that the identities of the claimants would be disclosed without an order preventing disclosure; here, by contrast, nobody other than the defendant would know them and the defendant could be trusted not to disclose them. He went on to say that the fact that there might be a degree of hostility towards the applicant was not...
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