R v Legal Aid Board, ex parte Kaim Todner (A Firm)
| Jurisdiction | England & Wales |
| Judgment Date | 10 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0610-15 |
| Docket Number | Case No: QBCOI97/1001 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 June 1998 |
[1998] EWCA Civ J0610-15
The Master Of The Rolls
Lord Justice Auld
and
Lord Justice Buxton
Case No: QBCOI97/1001
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN's BENCH DIVISION FROM AN ORDER OF MR JUSTICE KAY
Royal Courts of Justice
Strand, London, WC2A 21L
MR EDMUND LAWSON QC & MISS CHRISTINA RUSSELL (instructed by Kingsley Napley for the Appellant)
MISS PRESILEY BAXENDALE QC & MISS JANE MULCAHY (instructed by The Legal Aid Board for the Respondent)
MR JOHN MCGUINNESS (instructed by The Law Society)
The Background to the Appeal
This is the judgment of the Court. This is an appeal by a firm of solicitors in respect of a judgment of Mr Justice Kay which was given on 25 June 1997 on an application for leave to apply for judicial review. The judge gave leave to appeal because his decision involved a point of principle. The principle is as to when it is appropriate to grant a party who has initiated proceedings anonymity.
The appellants are a firm of solicitors. They held a franchise from the Legal Aid Board. The Board has suspended or terminated that franchise. The firm in their application for judicial review contend that the termination was wrongful and unfair. The merits of that contention are disputed by the Legal Aid Board.
In addition to seeking leave to apply for judicial review, (which they have obtained) the firm made an application for anonymity, that is that they should be allowed to keep their identity secret and the court should make an order under Section 11 of the Contempt of Court Act 1981 forbidding the disclosure of their identity. The ground for claiming anonymity was that the action of the Board was not justified, but if the reasons on which the Board rely for cancelling their franchise were to be made public, this is likely to cause the firm incalculable damage. It is suggested that this will be the consequence because the Board have acted on allegations involving dishonesty made by former employees of the firm. These are denied by the firm, but if they were to be given publicity, this would seriously prejudice the reputation of the firm.
Although Kay J refused the application for anonymity, he made an order under s.11 of the Contempt of Court Act 1981 prohibiting the publication of the firm's identity or anything leading to their identification other than by the letter "T" until the hearing or abandonment of this appeal.
Because of the interest of the profession generally in the outcome of the appeal, the Law Society applied to be heard on the appeal although it accepted that it could not be joined as a party. At the outset of the hearing of the appeal the Court indicated that it would welcome the assistance of the Law Society and we have been grateful for the assistance that has been provided by Mr McGuinness. In general Mr McGuinness firmly endorsed the submissions made on behalf of the firm.
Mr Edmund Lawson QC who appeared on behalf of the firm accepted that if the application for judicial review was unsuccessful, any order made prohibiting the identification of the firm should cease to have effect. He accepted that in those circumstances it would not be in the public interest for the identity of the firm to be suppressed. However, he made a separate application in this court for a direction that irrespective of the outcome of the appeal, in relation to the appeal the firm should retain its anonymity. An additional reason for this further application is that his firm feared that the judgment in this case could become a leading authority and as a result permanently associate the firm with the alleged impropriety which has given rise to these proceedings. Put colloquially, Mr Lawson submits that his clients do not want to become in this field the " Rondel v Worsley". He indicates that his instructions were that unless this court granted such a direction before hearing the argument on the appeal, he would be instructed to withdraw the appeal or consent to its dismissal. Having considered this application, the court decided that it should be refused for reasons to be given later and indicated that they would not give their consent for the appeal to be withdrawn and would in any event give a judgment. In these circumstances the firm decided to continue its appeal.
The Appellants Case
There is no internal appeal mechanism which applies to the decision of the Legal Aid Board to suspend or terminate the franchise. The only way the firm contend that they can challenge the decision of the Legal Aid Board is to seek judicial review. As leave has been given to make the application for judicial review, Mr Justice Kay clearly regarded the firm's application as one which had a reasonable prospect of success. The firm contends if it is not granted anonymity, the effect would be to unjustly deprive the firm of the prospect of attaining justice. This, the firm said, would be the position because without the cloak of anonymity, at least until the outcome of the application for judicial review is known, the firm would not feel able to pursue its application because of its fear of the damaging consequence of the publicity to which the appeal would give rise. Damage, which it says will not be remedied by the application for judicial review being successful.
Mr Lawson contends there are two ways of looking at this case. There is a narrow approach which involves asking whether the firm should in respect of this particular judicial review application be granted anonymity and there is a broad approach which involves considering whether there is some special principle which applies to solicitors which entitles them to be granted anonymity when anonymity would not be granted to any other profession.
Mr Lawson accepts that there is a general presumption in favour of open justice and that ordinarily a litigant's name will be published. However he contends that the general principle set out in cases such as Scott v Scott [1913] AC 417 and the Attorney General v Leveller Magazine [1979] AC 440 has to be applied with caution when what is being sought is no more than the suppression of the name of one or more of the parties to an action. In a case such as the present, the litigant's identity has no relevance to the issue to be determined. If the proceedings are conducted in public and only the name of one of the parties is withheld this will not prejudice the administration of justice since revelation of the litigant's identity will do no more than satisfy prurient curiosity.
Mr Lawson develops his argument on the sound foundation that the courts have jurisdiction to grant anonymity when it is appropriate to do so. Support for this is to be found in the Rules of the Supreme Court O.106 r.12. O.106 deals with proceedings relating to solicitors under the Solicitors Act 1974 and O.106 r.12(1) provides :
"The notice of the originating motion by which an appeal is brought must be entitled in a matter of a solicitor, or, as the case may be, a solicitor's clerk, without naming him, and in the matter of the Act."
A similar provision has appeared in the Rules since at least 1962.
In addition to decisions such as Scott v Scott [1913] AC 417 and Attorney General v Leveller Magazine [1979] AC 440 Mr Lawson referred to R v Westminster City Council, ex parte Castelli [1995] 7 Admin. LR 840. In that case Latham J was dealing with a very different situation. There an applicant, who was HIV positive, wished his identity to be concealed. Some publicity had already occurred and Latham J decided that it would not be right to accede to the application for anonymity. He referred to Scott v Scott and the Leveller Magazine case and cited from the speeches of both Lord Scarman and Lord Diplock in the latter case. The citation from Lord Diplock is in these terms :
"However, since the purpose of the general rule is to serve the ends of justice it may be necessary to depart from it where the nature or circumstances of the particular proceeding are such that the application of the general rule in its entirety would frustrate or render impracticable the administration of justice or would damage some other public interest for whose protection Parliament has made some statutory derogation from the rule."
(At p.450)
Latham J said those quotations were "guiding statements of principle which should be applied to any application such as the present. Although Scott v Scott was concerned with the power to hold hearings in camera, Attorney General v Leveller Magazine was concerned with the power to permit a witness to remain anonymous. The House of Lords in the latter case clearly considered that there was no difference in principle between the two situations".
Mr Lawson rightly acknowledges that in Castelli the guidance which Latham J gave, was that there is a presumption in favour of "open" justice and that, ordinarily, a litigant's name will be published.
Latham J, having examined the authorities, does indicate that while he has no doubt that the courts have the power to give anonymity "in exercise of the court's inherent jurisdiction and to support it with an appropriate order under the Contempt of Court Act 1981" that the power is only to be exercised when "the applicant can establish the basis of that power, namely that the failure to grant anonymity would render the attainment of justice really doubtful or, in effect, impracticable."
Mr Lawson submits that the approach of Latham J is too restrictive, in so far as it involves anonymity only being granted where not to extend anonymity "would render the...
To continue reading
Request your trial
-
Donald v Ntuli
...of the general rule in its entirety would frustrate or render impracticable the administration of justice …” 49 More recently, in ex parte Kaim Todner [1999] QB 966 Lord Woolf MR explained the principle in a contemporary context and added (at page 977): “Any interference with the public nat......
-
EGC v PGF NHS Trust
...the media. Any interference with the public nature of court proceedings is to be avoided unless justice requires it: R v Legal Aid Board, ex parte Kaim Todner (A Firm) [1999] QB 966, 978g. No doubt there will be many litigants in the courts who would prefer that their names, addresses and ......
-
Paul William Miller v General Medical Council
...frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked …" — see R v. Legal Aid Boardex parte Kaim Todner [1998] EWCA Civ 958 [1999] 1 QB 966. 11 However, neither the Convention nor the common law rule is absolute. Article......
-
AB v College of Physicians and Surgeons of Alberta,
...per Earl of Halsbury (“every Court of justice is open to every subject of the King”); The Queen v. Legal Aid Board, ex p. Kaim Todner, [1999] Q.B. 966, 969 per Lord Woolf, M.R. (“Justice should be administered in public”); Daubney v. Cooper, 109 Eng. Rep. 438, 440 (K.B. 1829) per Bayley, J.......
-
Regulators' Hearings - Should they be in Private or Public?
...to a private hearing if there would be unfairness caused by holding a hearing in public (see eg R v Legal Aid Board ex p Kaim Todner [1999] QB 966) or possibly if a public hearing might infringe some other Convention In Eurolife the Tribunal held that generally, if the unfairness or prejudi......
-
The principle of open justice and the judicial duty to give public reasons.
...25 Canadian Bar Review 721. (44) Russell v Russell (1976) 134 CLR 495, 520 (Gibbs J); R v Legal Aid Board; Ex parte Kaim Todner (a firm) [1999] QB 966, 977 (Lord Woolf MR for Lord Woolf MR, Auld and Buxton LJJ); Chief Justice Spigelman, 'Seen to Be Done' (Pt I), above n (45) On the relation......
-
OPEN JUSTICE, 'BACK-TO-BACK' TRIALS AND JUROR PREJUDICE: EXAMINING THE SUPPRESSION ORDER IN THE TRIAL OF GEORGE PELL.
...Burger CJ agreeing at 394, Powell J agreeing at 397, Rehnquist J agreeing at 403) (1979). (50) R v Legal Aid Board; Ex parte Kaim Todner [1999] QB 966, 977 (Lord Woolf MR for the Court). See also Russell v Russell (1976) 134 CLR 495, 520 (Gibbs (51) See, eg, Bank Mellat v Her Majesty's Trea......
-
Reforming Police Powers of Stop And Search: Voluntary Action
...and Publishers Ltd, ex p A-G [1975] QB 637 at 651, and those of Lord Woolf MR in R v Legal Aid Board, ex p Kaim Todner ( a firm) [1999] QB 966 at 977.17. See R (on the application of Roberts) v Metropolitan Police Commissioner [2012] EWHC 1977 (Admin) (DC); [2014] EWCA Civ 69 (CA).18. Hans......
-
Scots Law News
...that was when the court had to be most vigilant.” Lord Woolf MR quoted the warning with approval in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E. The application challenging the anonymity orders in these appeals provides an opportunity for reviewing the position.In the end th......