In AAA -v- Rakoff [2019] EWHC 2525 (QB) Mr Justice Nicklin set out the importance of claimants (and their lawyers) setting out a clear and consistent basis for seeking anonymity in civil proceedings.
Facts
The First and Second Defendants Dr Sasha Rakoff and Not Buying it Limited ('NBL') campaign against sexual entertainment venues (SEVs), commonly known as strip clubs, particularly where they breach the regulatory framework (e.g. where they breach conditions to licences that prohibit physical contact between the performers and customers, prostitution or solicitation and/or sexual activity or simulated sexual activity undertaken by the performers themselves, with other performers or with customers). They state they do this out of concern for the harm caused to performers and society generally.
Dr Rakoff and NBL engaged the third and fourth defendants, private investigators Philip Rashbrook and Jeffrey Hill, to obtain evidence - in the form of covert video recordings - to establish suspected breaches by two SEVs: Spearmint Rhino in Camden and Sheffield owned by the Tenth and Eleven Claimants Spearmint Rhino Companies (Europe) Limited and Sonfield Developments Limited. Footage was captured in February of this year, which Dr Rakoff and NBL contend shows breaches of licensing conditions.
NBL states that the footage is intended to be used in evidence at SEV licence renewal hearings. More generally, it wishes to publish its findings in order that the matter receive public scrutiny. NBL has stated that it will not, without consent, disclose any footage or include in written evidence anything which identifies any individual performer.
The SEVs' corporate owners and nine performers - specified as AAA, BBB, CCC, DDD, EEE, FFF, GGG, HHH and III on the claim form - issued proceedings against Rakoff, NBL and the private investigators for the misuse of private information and breach of the Data Protection Act 2018. Pausing here, it is not immediately clear how a company can advance such claims, but this may be clarified in the Particulars of Claim and/or an additional cause of action such as breach of contract or breach of confidence may be included.
The hearing
Interim injunction
The Claimants issued an application for an interim injunction restraining disclosure/dissemination of the footage, anonymity (for the performers only) and an expedited trial.
It was unnecessary for the Court to determine the application for an interim injunction as prior to the hearing Dr Rakoff and NBL undertook not to publish/disclose the footage without pixellation, save to council investigators, ahead of the trial/until further order.
Anonymity
The judge was critical of the Claimants for failing to have made an application for an order for anonymity to the Practice Master prior to issuing the claim form. The claim form had effectively been embargoed by the court office. This was because CPR 16.2 and Part 16 PD §§2.2 and 2.6 require the address and name of each claimant to be stated in the claim form. Paragraph 2.5 of the Practice Direction provides that if the claim form does not show a full address, including postcode, “the claim form will be issued but will be retained by the court and will not be served until the claimant has supplied a full address, including postcode, or the court has dispensed with the requirement to do so.”
Given the background, one might have thought that the performers had a good argument for anonymity at least at the outset of the case. The defendants had acknowledged that they were not the target of the campaign (indeed, they were seeking to protect them from exploitation). Indeed, several of the claimants had given evidence that their employment at Spearmint Rhino was itself private and confidential. For instance, AAA's evidence stated:-
“I have many friends and acquaintances who do not know what I do for a living. If I had to be named as a claimant in this case, I would be devastated at the attention it may bring me. My right to a private life (which I try to keep as private as possible) would be violated. I would not want my reputation damaged in that way as I would certainly suffer a loss of my reputation if anyone could find out what I did for a living. My dancing which was done in private should stay private as should my identity”
Unfortunately, for AAA and others, some of the Claimants' alleged conduct and, more importantly their lawyers' submissions, were inconsistent with this evidence. As Nicklin J summarised:-
"[40]...Reading these witness statements before the hearing, I had gained the impression that the principal basis on which they sought anonymity was the harm that would be caused to them (and their family lives) if they were to be revealed as performers at Spearmint Rhino. That impression seems to have been shared by some of the Defendants as an issue that had been raised at the hearing on 11 July 2019 was the extent to which any of the Claimants had engaged in public protests about having been filmed without their consent (conduct that was said to be inconsistent with the desire to keep private the fact that the individual was a performer at Spearmint Rhino). At the hearing, however, Mr Quinn stated that the Claimants were not concerned about being identified as Spearmint Rhino performers. Their concern was that, during the proceedings, details from the secretly recorded footage would come into the public domain."
Moreover, the performers had not sought a more general order restricting the reporting of their names in the proceedings. As Nicklin J explained:-
"[41/42]...The Claimants’ position is difficult to understand. They seek only an order permitting them to issue the Claim Form anonymising their names (and thereafter for initials to be used in place of their names in the proceedings) but do not seek an order that would prohibit their real names being published or being identified as claimants in the proceedings. I struggle to see what the point of such an order would be in this case. Either there is a 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. Here, the Claimants have stated that they do not seek any restriction on reports of these proceedings that identify that they are the Claimants in the proceedings and are Spearmint Rhino performers. I have not been required to make a decision whether an anonymity order would have been justified on this basis...The short answer to this argument is that it is premature, and it does not justify anonymity. An anonymity order is neither a necessary nor proportionate response to the identified concerns."
In his judgment, Nicklin J helpfully sets out the relevant authorities and provisions relating to the anonymisation of parties, reminding us that that whilst such orders are common in privacy cases, the starting point in every case is that the open justice principle recognises that there is a public interest in knowing the names of parties and witnesses.
The anonymity application was therefore rejected, although the parties' identities will remain anonymised in the judgment pro tem, pending any application for permission to appeal.
Expedited trial
The Judge saw no need for an expedited trial. The Claimants were content with the undertaking provided and Nicklin J considered any suggestion that there was a risk the footage could be obtained by a third party as a result of hacking was fanciful.
Comment
If this claim reaches trial, the Court will have to grapple with competing privacy and public interest arguments, whilst side-stepping a wider moral debate. The significance of this interim judgment is the procedural guidance and robust application of the principles surrounding anonymisation. The Court has again highlighted the importance of open justice, and that it will guard against unjustified attempts for it to be displaced. What is perhaps striking in this case is that all the necessary ingredients for anonymity (at least at the outset) appeared to floating about. Put another way, commentators would not have batted an eyelid had the performers been granted anonymity. The Claimants failed in their application because they were not presented in a logical or consistent manner.
The judgment shows an increasing intolerance on the part of the judiciary towards anonymity applications where claimants treat them as a 'box ticking' exercise. The clue perhaps is in the fact that there is no box on a claim form. Practitioners need to consider very carefully whether there is a good argument for anonymity. In circumstances like this it should normally be accompanied by reporting restrictions which prohibit the identification of the party party (a 'Rule 16' order does not prohibit a party from doing this). Cogent evidence must then be presented which is consistent with any submissions. If anonymity is not likely or in question, litigants need to think very carefully about whether they are happy to proceed with the litigation in any event. The authorities make it clear that any litigation may involve some embarrassment and compromise over matters that would normally be considered private.