The Queen (on the application of Ruba Imam) v The London Borough of Croydon
| Jurisdiction | England & Wales |
| Judge | Mathew Gullick |
| Judgment Date | 26 March 2021 |
| Neutral Citation | [2021] EWHC 736 (Admin) |
| Docket Number | Case No: CO/889/2020 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 March 2021 |
[2021] EWHC 736 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mathew Gullick QC
(sitting as a Deputy High Court Judge)
Case No: CO/889/2020
Martin Westgate QC (instructed by Deighton Pierce Glynn) for the Claimant
Kelvin Rutledge QC (instructed by Browne Jacobson LLP) for the Defendant
Hearing date: 11 March 2021
Approved Judgment
Deputy Judge Mathew Gullick QC:
Introduction
This is my judgment on the Claimant's application for an order under CPR 39.2(4) that her name be anonymised in these proceedings by the use of a cipher and that restrictions should be imposed on the reporting of her identity. That application was initially made in written submissions filed at 4:08 pm on 3 March 2021, on the afternoon of the day before my reserved judgment on the Claimant's Claim (“the Trial Judgment”) was scheduled to be handed down. As a result of the application being made, I deferred handing down the Trial Judgment and invited the Defendant's submissions in response. Having received them, I considered that it was necessary to have the application determined at a hearing.
The hearing took place on 11 March 2021 as a remote video hearing using the Microsoft Teams platform, in accordance with the arrangements adopted during the COVID-19 pandemic. Mr Westgate QC represented the Claimant, due to the unavailability of Counsel who had appeared at the trial. Mr Rutledge QC represented the Defendant, as he had at the trial. This judgment is being handed down at the same time as the Trial Judgment, which has the neutral citation [2021] EWHC 739 (Admin) and should be read in conjunction with it.
Background
The Claimant's claim for judicial review concerns the Defendant's performance of its statutory duties as a local housing authority under Parts 6 and 7 of the Housing Act 1996, and in particular for present purposes that the property in which she is being housed is not suitable accommodation, as required under Part 7 of that Act, something which is accepted by the Defendant. The Claimant is a wheelchair user and is disabled within the meaning of section 6 of the Equality Act 2010. The history of the case is set out in more detail in the Trial Judgment at [3–22].
The Claimant has been legally represented throughout. The Claim Form was issued on 5 March 2020. No application for anonymity was made in the Claim Form or in the accompanying Statement of Facts and Grounds, which identified the Claimant by her full name. Permission to apply for judicial review was granted on the papers, in an order also referring to the Claimant by her full name. The claim proceeded to a trial before me on 6 October 2020. That trial was also conducted by way of a remote video hearing using the Microsoft Teams platform in accordance with the arrangements adopted in consequence of the COVID-19 pandemic, which provide for representatives of the media to have access to the video hearing on request. The trial was a public hearing and was not held in private. No issue was then raised in relation to anonymity. Having heard the submissions of the advocates for both parties, I reserved judgment.
The draft of the Trial Judgment was circulated by email to the parties' legal representatives on the morning of 1 March 2021, in accordance with Practice Direction E to CPR 40. They were requested to provide proposed corrections to the draft judgment, their draft orders and to make any consequential applications (including in relation to costs and permission to appeal) in writing. I asked that all these matters should be addressed by 4:00 pm on 3 March, at the latest, so that the Trial Judgment could be handed down on the morning of 4 March.
Shortly after 4:00 pm on 3 March, Ms Steinhardt, Counsel who had appeared for the Claimant at the trial, sent her written submissions on a number of issues. These submissions included a request that the Claimant's name should be anonymised in the Trial Judgment and that an order should be made under CPR 39.2(4) in that regard. Ms Steinhardt referred me to the decision of the Court of Appeal in XXX v London Borough of Camden [2020] EWCA Civ 1468, [2020] 4 WLR 165 (“ XXX v Camden”) and submitted that the publication of the Claimant's name in the Trial Judgment when handed down would be a disproportionate interference with her rights under Article 8 of the ECHR. Shortly afterwards, Ms Steinhardt informed me in a further email that the Defendant, having seen the Claimant's request, was content to agree that such an order should be made.
The application arose from what was set out at [8] of the draft judgment, which read as follows:
“8. The Defendant wrote to the Claimant's Solicitors on 24 February 2015, stating that it was minded to decide that the Property remained suitable and giving its proposed reasons. The Defendant gave the Claimant an opportunity to comment on the proposed findings. On 23 April 2015, the Claimant's Solicitors responded. In that letter they raised an additional argument as to why the Property was not suitable, which was that there was no upstairs toilet and that the Claimant, due to difficulties with continence, was unable to reach the ground floor toilet, located in the bathroom, in time during the night. It was stated that the Claimant had experienced accidents, on an unspecified number of occasions, which she had found humiliating and distressing.”
It was and is not suggested, on behalf of the Claimant, that this paragraph in the draft judgment was in any respect inaccurate. Nor, at that stage, did those representing the Claimant propose any amendment to the text of the paragraph.
Having considered the Claimant's written submissions on this issue, I did not consider that it was appropriate that I should simply accede to the request for anonymity and an order restricting disclosure of her identity. I decided to defer handing down the Trial Judgment and to request that the Defendant provide a more detailed response to the application. That was provided by Mr Rutledge QC on the afternoon of 5 March. The Defendant maintained its position that it was neutral on the issue.
I did not consider that it was possible for me to determine the Claimant's application for anonymity without a hearing, bearing in mind that such an order should not be made simply because the parties to the litigation consent to it. In particular, I considered that a number of potentially relevant issues had either not been addressed, or not sufficiently addressed, in the written submissions that had been made. The hearing was then listed, by agreement, for 11 March. I heard oral argument from Mr Westgate QC for the Claimant and from Mr Rutledge QC for the Defendant. They had both filed very helpful submissions in writing in advance of the hearing. I am grateful to them for their assistance.
The Legal Principles
CPR 39.2(1) provides that the general rule is that hearings are conducted in public. CPR 39.2 also contains provisions regarding hearings in private and, materially for present purposes, the non-disclosure of the identities of parties and witnesses. CPR 39.2(4) and (5) provide:
“(4) 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.
(5) Unless and to the extent that the court otherwise directs, where the court acts under paragraph ( 3) or (4), a copy of the court's order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.”
XXX v Camden was also a case involving a challenge in the Administrative Court by way of judicial review to decisions taken by a local authority under the Housing Act 1996. The claimant applied for an anonymity order not only after the trial had taken place in this Court, but after two judgments had been given at public hearings – the first granting her renewed application for permission to apply for judicial review and the second being the substantive decision given after the trial. In her application, she contended that sensitive personal information about her contained in the published judgments should be removed, and that her name should be anonymised. Her application was rejected by Mr Michael Fordham QC, sitting as a Deputy High Court Judge: see [2019] EWHC 2638 (Admin). However, the Deputy Judge did make an order that the claimant should be anonymised in relation to the application for anonymity itself; that order was not challenged by the local authority on appeal. The claimant appealed to the Court of Appeal against the Deputy Judge's refusal to grant her application in relation to the main proceedings. Her appeal was dismissed.
In the Court of Appeal, Dingemans LJ gave the only reasoned judgment, with which McCombe and Moylan LJJ agreed. At [16–21], Dingemans LJ set out the applicable principles:
“16. The Human Rights Act 1998 gives domestic effect to the provisions of the ECHR. Section 12 of the Human Rights Act applies whenever a Court is considering whether to grant any relief which might affect the exercise of the right to freedom of expression. In this case the relief sought is a prohibition on publishing certain material so section 12 of the Human...
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