Tribunal procedure and practice – anonymity – whether practice of anonymising decisions appropriate
The appellant had appealed to the Upper Tribunal (UT) against the assessment of his liability for child support maintenance and, in accordance with its usual practice, the UT had anonymised the names of the parties and referred only to the child’s forenames in its decision: CA v (1) The Secretary of State, (2) EG (CSM)  UKUT 359 (AAC). Its practice represented a default judicial approach as the UT had not made an order prohibiting publication of the names of the parties involved in the proceedings under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. The appellant appealed against the UT’s practice, arguing that subject to exceptional circumstances all litigants had a common law right to insist on no anonymisation of cases, particularly those heard in public, unless it was removed by primary legislation. Before the UT could consider that appeal the CA decision was published on the Fathers4Justice website in an unanonymised form and the UT issued an interim anonymity order under rule 14 requiring the decision to be taken down. Among the issues before the UT was whether a final anonymity order should be made and whether it should continue its practice of anonymising parties in child support cases.
Held, allowing the appeal, that:
the fundamental common law principle was applied to promote, and therefore was qualified by, the promotion of the public interest on which it was founded and so it had always been recognised that in some limited circumstances the interests of justice would be better served by a private hearing or anonymisation (with or without a reporting restrictions order) and so a litigant could not insist on a public hearing and unanonymised publication (paragraph 49);
when a court was determining an open justice issue by weighing competing Convention rights it must have regard to the fundamental common law principle of open justice and the weight given to it, and thus the public interest reasons for it, by the courts in England and Wales. The exercise was fact and circumstance sensitive and, on this approach, a departure from open justice must be justified. Accordingly, an approach of the UT that was based primarily on an analogy with that taken by the Family Courts or the Court of Protection at first instance would be wrong (paragraphs 66 to 67);
the UT concluded that in this case there should not be a final anonymity reporting restriction order having decided that the interests of open justice outweighed the harm arising from embarrassment, worry or distress to the child (and his mother) subject to extending the existing anonymity order for a limited time to enable the current position to be preserved if there was an appeal (paragraphs 101 to 102);
the UT’s practice of anonymising decisions would continue on the basis that it was explained to all the parties to the appeal that, subject to further order by the UT, the practice of anonymising decisions would only be applied if no party objected to it, and (i) that its effects were that: (a) non-parties who obtained decisions either directly or indirectly from the UT would do so in an anonymised form, and (b) if someone asked the UT for the identity of the anonymised persons the parties would be notified and given an opportunity to object, (ii) that the UT’s practice did not prevent publication by a party or anyone else of the identities of the individuals involved in the case, and accordingly (iii) if a party wanted an injunctive order they should ask for one (paragraphs 127 to 132).