Non party applying for copy of court order can keep anonymity

The identity of a person who applied for - and then apparently circulated - copies of a court costs order in a defamation case can remain secret, the presiding judge of the High Court media & communication list has ruled. In Stephanie Rebecca Hayden v Associated Newspapers & Anor, Mr Justice Nicklin turned down an application for an order requiring HMCTS to identify the individual, known as X. 

Rejecting three lines of argument, Nicklin noted that a person attending proceedings in open court is not required to identify themselves. Granting the order sought might discourage people from exercising their right to obtain copies of documents from the records of the court. 'It would not be in the public interest to discourage that activity as it would undermine open justice,' the judge ruled.

The hearing, in May, arose from an unsuccessful libel action brought against the Mail on Sunday by Stephanie Hayden, a campaigner on transgender issues. In costs proceedings following the case, a costs master made an order requiring Hayden to attend court and provide information. 

A copy of this order was posted to a controversial internet forum, KiwiFarms. Applying for an order requiring HMCTS to identify X, Hayden said the post formed 'part part of a longstanding thread of posts on the KF website, which are calculated to harass, smear, abuse and intimidate me.’ The abuse is 'relentless and includes homophobic and transphobic slurs'. 

Nicklin noted that the poster, who used the name 'Notso jolly Halliday', had misgendered Hayden in a way that 'would have been deliberate'. He also commented: 'For someone who complains about harassment, visiting the website on which this alleged harassment is posted is not altogether easy to understand.'

Nicklin said Hayden's application raised an important point of principle: 'In what circumstances can HMCTS provide information about the identity of a person who has obtained a copy of a document required to be open for public inspection from the court file in civil proceedings?'

The application cited three grounds: that X's request for a copy of the order formed part of the 'records of the court' and should thus be made public under the civil procedure rules; that X's identity came under the Norwich Pharmacal jurisdiction under which third parties inadvertently 'mixed up' in wrongdoing may be forced to disclose information, and finally that that the court had 'inherent' jurisdiction to make the order. 

On the CPR argument, Nicklin found that, although HMCTS held the details requested, the document is not part of the 'records of the court' but an administrative document received by the court in order to enable the discharge of an obligation. On the second argument, the judge found that the KiwiFarms Post did not, itself, disclose wrongdoing sufficient to sustain a Norwich Pharmacal order. Meanwhile, X's privacy, confidentiality and data protection rights 'are certainly engaged'. On the third argument, he ruled 'There is no inherent jurisdiction to make the order sought'. 

Hayden has indicated on social media that she will appeal.