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High Court grants anonymity of judgment in TOLATA dispute

Mr Justice Mostyn reviews law on anonymisation and freedom of expression

Mr Justice Mostyn has granted an order for anonymisation of his judgment in TOLATA proceedings.

In W v M (TOLATA Proceedings: Anonymity) [2012] EWHC 1679 (Fam) the Claimant ("C") commenced proceedings against the Defendant ("D") pursuant to s14 Trusts of Land and Appointment of Trustees Act 1996 concerning two valuable properties in Surrey. 

D applied for an order under CPR 39.2(4) that in the proceedings at the main hearing, and in the final judgment, all relevant people and places should be anonymised.

In D's witness statement [set out in para 4 of the judgment], he set out his family circumstances and concluded:

"I accordingly ask for an order in a form that protects my children and A [the mother of three of his children] from the threats to their health, well-being and family life I have identified above. In particular I seek an order that my own surname and my children's surname in its full and shortened form, using either their mother's or my own surname only, are anonymised as are the identities of all three of my properties, as they would readily be connected to A and my children now or in the near future."

He also argued that an important witness would refuse to give evidence if his evidence could result in his previous conviction, which is now spent, coming out.

The application was resisted by C who disputed that she opposed the application for any improper reason. She said that the case began in 2010 and she could at any time have gone to the press if she wanted to see D pilloried, but she has not.

"The reason why she wants the case heard in the fullest way is that this is a case which will turn on which witnesses are believed. Each party asserts the other is a liar. Such hearings are especially well suited to being heard in public where "daylight is disinfectant" and the lying witness need fear exposure more than the truthful one."

Mostyn J reviewed the law and concluded [para 55]:

"Drawing the threads together as best I can it seems to me that the following principles inform the disposal of this application:

i) These Trusts of Land and Appointment of Trustees Act 1996 proceedings are public business under the CPR.

ii) The starting point or general rule, derived from Scott v Scott, Article 6 and CPR 39.2(1) is that the proceedings will be heard in public, without anonymisation, and the press will be free to report them fully. Freedom of expression is an ancient common law right now expressed in Article 10, and I must by virtue of s12(4) HRA 1998 have particular regard to the importance of that right.

iii) The starting point or general rule will only be derogated from for good reason. While CPR 39.2(3) gives a number of examples where derogation may be granted, the only relevant ones for my purposes are the engagement of Article 8 rights by D and his family viz "the right to the right to respect for his private and family life and his home", and also Article 6 in relation to B .

iv) Where, as here, the Article 8 rights engaged are not only those of adults but also of children, then I must have particular regard to the children's interests given the best interests principle enshrined in the United Nations Convention on the Rights of the Child and other international instruments to which this country has subscribed.

v) Subject to these two "particular regards" I must conduct a highly fact-specific and focused balancing exercise between the competing claims or rights.

vi) The engagement of the competing claims or rights must be proved by clear and convincing evidence. Mere assertion is not enough.

vii) In conducting the balancing exercise I should be very wary of either extending the children's best interests principle into realms where they arguably ought not properly sound or of making value judgments about the journalistic merit of any proposed report of the proceedings.

viii) The fact that the proceedings would likely be anonymised if they were under the Matrimonial Causes Act 1973 should not intrude into the balancing exercise. Reform of the rules in this regard is a matter for the Government and Parliament."

He continued:

"I have not found this an easy issue to determine. The balancing exercise is close to equilibrium.

68. When conducting the balancing exercise the following aspects seem to me to be key:

i) I have to assume that the proceedings and the result will be reported fully and, in some papers at least, sensationally.

ii) This will probably cause great distress and upset to D and A and possibly a deterioration in A's health. I am prepared to accept D's evidence notwithstanding its questionable aspects as identified by Mr Todd QC.

iii) However, like all media reports of this nature their currency will be ephemeral and likely forgotten in a comparatively short period of time.

iv) In contrast, I must further assume that there will be also be serious and responsible reporting of the case, involving an area of law which is controversial, and which will contribute to an authentic public debate. The content of that reporting would be appreciably diminished and disembodied were the case to be anonymised.

v) Given that the children do not bear D's surname, I regard it as unlikely (but not impossible)  that their school-fellows will register a report about a property dispute in which their father is involved with his former partner and as a result bully them in the playground. Unlike the children in K v L there is no security concern that would arise from the proceedings being held without anonymisation.  I cannot see any appreciable risk, or indeed causative link, that the children's interest would be adversely affected by the publication of these proceedings.

vi) In any event I am very reluctant to extend the principle in ETK from free-standing privacy proceedings into what are conventional civil property proceedings where I am doubtful that an equivalent order would be made if the proceedings were about employment or professional negligence.

vii) I acknowledge and rely on the differences between this case and ETK as referred to in para 63 above both in relation to the underlying facts and the nature of the proceedings.

viii) I regard it as highly implausible that if B's identity were not anonymised and he was summonsed to attend that the quality of his evidence would be compromised.

69. I have concluded, after having conducted the balancing exercise on the specific facts of this case in the way set out above, that the starting point or general rule is not displaced. The application is therefore refused.

70. Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed."

On 12th January the parties settled the main action and signed Heads of Agreement. By clause 20 of the Heads of Agreement C agreed to support D in an application to Mostyn J to anonymise his judgment or to prohibit its publication. The application to anonymise the judgment was granted.

The judgment is here.

Richard Todd QC and John Wilson QC, both of 1 Hare Court, (instructed by Manches Solicitors) represented C. John Martin QC of Wilberforce Chambers  and Rebecca Bailey-Harris of 1 Hare Court (instructed by Miles Preston & Co Solicitors) represented D.