Neil Charles Money (as Liquidator of (1) CSL Global Solutions Ltd (in Creditors Voluntary Liquidation) v AB (by his Litigation Friend, the Official Solicitor)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Bacon |
| Judgment Date | 10 November 2021 |
| Neutral Citation | [2021] EWHC 2999 (Ch) |
| Court | Chancery Division |
| Docket Number | Case No: BL-2020-000115 |
[2021] EWHC 2999 (Ch)
IN THE HIGH COURT OF JUSTICE
BUSINESS AND PROPERTY COURTS OF ENGLAND AND WALES
BUSINESS LIST (ChD)
Rolls Building
Fetter Lane
London, EC4A 1NL
Mrs Justice Bacon
Case No: BL-2020-000115
and
Kenneth Hamer (instructed by Freeths LLP) for the Claimant
Shazia Akhtar (instructed by Hodge Jones & Allen Solicitors) for the Defendant
Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
This is my ruling on an application by the Defendant for anonymity pursuant to CPR 39.2(4), in the context of contempt of court proceedings brought by the Claimant, Mr Money, following breaches by the Defendant of court orders made in April and October 2020. Irrespective of my decision on this application, I have followed the course taken by the court in XXX v Camden London Borough Council [2020] EWCA Civ 1468 of anonymising the Defendant in this judgment in order to facilitate its handing down and any subsequent applications that may be made.
The contempt proceedings that have given rise to this application have been ongoing since October 2020, and I gave judgment on liability at a hearing on 26 January 2021. Following various adjournments of the proceedings thereafter in order to enable the Defendant to obtain legal representation and medical evidence, the sentencing hearing finally took place on 5 October 2021 and I circulated my draft judgment to the parties on 22 October 2021. Upon receipt of that draft judgment the Defendant's solicitors indicated that they would be seeking the anonymisation of the judgment when it was handed down, and a formal application for anonymity was made on 27 October 2021.
The application is supported by a witness statement from Ms Susan Hardie of the Official Solicitor. The Official Solicitor has been acting as the Defendant's litigation friend since early September 2021, following a report provided on 1 September 2021 by Professor Sensky, a consultant psychiatrist, which considered the Defendant's capacity to conduct the present proceedings as well as his mental capacity at the time of the acts that gave rise to the finding of contempt. The basis of the present application is that the Defendant is a protected party under CPR 21.1(2)(c) and (d), and there is a concern that the judgment that I am due to hand down will have a serious impact on his mental health and relationships with his children, engaging his rights under Article 8 ECHR.
In addition to the application notice and witness statement, I have received written submissions from Ms Akhtar for the Defendant and Mr Hamer for Mr Money. Both parties were content for the application to be dealt with on the papers on the basis of those submissions, without a further hearing.
Mr Money's position is that he does not formally object to the making of an anonymity order. However he does not consider that there is anything in the draft judgment that justifies anonymisation, and notes that the hearing on 5 October 2021 was a public hearing (albeit conducted remotely via Microsoft Teams) and that no request for anonymisation was made at any stage until the draft judgment was circulated.
The law
CPR 39.2(4) provides that “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.”
In XXX v Camden London the Court of Appeal considered the principles applicable to an application for anonymity, which may be summarised as follows (with references to the paragraphs of the Court of Appeal's judgment):
i) The test has a single stage: the Court must decide whether non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness: §24.
ii) In determining that issue, the starting point is that it is a fundamental rule of the common law that, subject to limited exceptions, proceedings must be heard in public and justice done openly, even if that entails discomfort or distress to the parties: §17.
iii) Given the fact that there are statutory reporting restrictions in particular circumstances, as well as exceptions set out in CPR 39.2(3), further exceptions to the general principle of open justice are likely to require compelling circumstances §18.
iv) The common law has, however, long recognised a duty of fairness towards parties and witnesses called to give evidence, and their fears about the publication of their identities and the impact of that on their health are relevant factors to take into account. Articles 2 and 3 of the ECHR may also be engaged where parties or witnesses are at risk if their identity is disclosed, and court proceedings may affect a person's right to private and family life, protected by Article 8 ECHR. On the other hand, the rights of the public and the press to know about the content and result of proceedings is protected by Article 10 of the ECHR, and the press has an important and legitimate interest in knowing the identities of the parties to litigation: §§19–20.
v) The approach to balancing competing human rights is as set out by Lord Steyn at §17 of In re S (A child) [2005] 1 AC 593:
“First, neither article has as such...
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