Meghan Markle and her five friends

Anonymity and non-parties

Though parties to family proceedings, and perhaps their lay witnesses, are entitled to expect anonymity in first instance proceedings, professional witnesses do not have the same protection. But what of non-parties to proceedings who are not even, necessarily, witnesses. Their names may in some way be referred to in court documents but they are only involved for reasons which may treated as confidential. This question was considered by Warby J in the latest instalment of Meghan Markle’s litigation against the Daily Mail, this time in Duchess of Sussex v Associated Newspapers Ltd [2020] EWHC 2160 (Ch) (5 August 2020).

Five of Meghan Markle’s friends or supporters gave interviews anonymously and subject to guarantees of confidentiality to a US magazine People. This article, but not their names – then unknown – was referred to by the Mail in its defence to Meghan Markle’s claim. In reply, she said she did not know of the interview and that, anyway, the Mail’s summary of the article was ‘completely wrong’. The Mail replied asking for ‘the friend’ or friends to be identified (Civil Procedure Rules 1998, Pt 18). The lawyers for Meghan Markle filed a reply to the Part 18 request. The reply identified the friends in a ‘confidential schedule’. The Mail proposed to publish information about this. Could the newspaper be prevented from publication?

In Re J (Reporting Restriction: Internet: Video) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523, [2014] 2 FCR 284, Sir James Munby P explained the limits of restraint of publicity – anonymity – in family, mostly children, proceedings:

[24]     The court may likewise, by an appropriate injunction, afford anonymity to other participants in the process, for example, an expert, a local authority, or a social worker. Such injunctions, however, will not readily be granted: see the discussions in A v Ward [2010] EWHC 16 (Fam), [2010] 1 FLR 1497…. Any such application in relation to an expert or a social worker must be justified by reference to ‘the particular circumstances or particular vulnerabilities of specific individuals’…. Anonymity should not be extended to experts, local authorities and social workers unless there are compelling reasons….

In that case, however, he emphasised the importance of publicity if family proceedings:

'[34] … The remedy, even if it is probably doomed to only partial success, is – it must be – more transparency; putting it bluntly, letting the glare of publicity into the family courts'.

Sussex and the balance: open justice against confidentiality and anonymity

In the Sussex case, Warby J created an important assessment of the balance to be adopted in a decision of whether non-parties – including witnesses and experts – should have anonymity. The starting point must always be open justice; but this must be approached through ‘the prism of confidentiality’ (see [51]). Where a party provides information under Part 18 (there is not direct equivalent to Part 18 in Family Procedure Rules 2010 but a Family Court can probably order production of information as part of its case management powers); or that party tenders evidence which implies a duty of confidence particular considerations apply, said Warby J:

'[51] (2) The defendant has, as it seems to me, acquired the information in circumstances importing an obligation of confidence, subject only to any public interest that overrides that obligation. The claimant has expressly designated the information as confidential and clearly identified in her statement of case and, now, in evidence, the factual basis for doing so. I agree with the authors of Toulson & Phipps on Confidentiality (4th ed) when they say (at 20-081): "So far as the protection of third parties is concerned, a party may be required to disclose information in respect of which he owes a duty of confidence to someone else, if such information is relevant to the issues in the action. … The law would be deficient if the receiving party did not in such circumstances owe an obligation to the relevant third party not to use such confidential information otherwise than for the purpose for which it was provided."'

In an assessment of the competing demands of open justice on the one hand, as against anonymity:

'[54] The key question, therefore, is how to resolve the competing demands of confidentiality and open justice…. The preservation of anonymity must be shown to be necessary in the interests of the administration of justice. But there is more to it than that. This is not an exercise in assessing competing generalities. As ever, it is necessary to consider the weight of the specific factors that are engaged, applying an intense focus to the particular facts of the case.'

In the final analysis, after ‘intense focus to the particular facts of the case’ the question must be whether the public interest in open justice and administration of justice was outweighed by issues of confidentiality. In Sussex Warby J said that, yes, as an ‘interim’ measure, confidentiality outweighed open justice and therefore it trumped any right of the Mail to publish the names of the five friends:

'[3] I have concluded that for the time being at least the Court should grant the claimant the orders she seeks, the effect of which will be to confer protection on the sources' identities. That is confidential information, the protection of which at this stage is necessary in the interests of the administration of justice….'

David Burrows

Written by David Burrows

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