Alex Ustych represents HMCTS in a novel application for third party disclosure

Alex appeared for the Respondent, HMCTS, in Hayden v Associated Newspapers Ltd [2022] EWHC 2693 (KB), a significant decision by Mr Justice Nicklin (Judge in Charge of the Media and Communications list) about: (a) the meaning of a ‘record of the court’ under CPR 5.4B (2) (b) the application of Norwich Pharmacal principles to documents held by HMCTS and (c) the existence of any ‘inherent jurisdiction’ to make a third party disclosure order. The judgment also contains important comments on the application of open justice principles and the interplay with data protection duties. 

The Claimant applied for an order requiring HMCTS to provide documents (from the Court file) that will disclose the identity of a person who obtained a copy of a Court order (‘the order’) made in the defamation proceedings.  A copy of the order was anonymously posted on a website outside the jurisdiction, with posts misgendering and allegedly harassing the Claimant. The Claimant indicated her potential intention to bring a claim against the person who obtained the order (‘Person X’) as well as to report Person X to the police for harassment.

In a detailed judgment, Mr Justice Nicklin rejected the contention that the document sought amounted to a ‘record of the court’ under CPR 5.4B (2), but reiterated the Supreme Court’s invitation (in  Dring -v- Cape Intermediate Holdings Limited [2020] AC 629) to the Civil Procedure Rules Committee to provide a definition of the term, noting that “there are important questions of principle and practice relating to what records are kept by the Court and access to them in the interests of open justice.”

Mr Justice Nicklin considered the somewhat conflicting case law about the participation/facilitation requirement as part of the Norwich Pharmacal principles, interpreting the decision in Various Claimants -v- News Group Newspapers Ltd [2014] Ch 400 narrowly (limiting it to situations where police have carried out an investigation into alleged wrongdoing, possess information that would assist the claimant with a civil claim and where there is no other practicable way of obtaining that information).  He went on to find that HMCTS’s role in this situation was that of a ‘mere witness par excellence’, such that the Norwich Pharmacal jurisdiction does not arise.

Mr Justice Nicklin indicated that he would have, in any event, refused to exercise his discretion to make the order sought, having regard to matters such as the privacy/data protection interests of Person X and the availability of an alternative means for the Claimant to pursue the matter (via the police). Finally, he confirmed that there is no ‘inherent jurisdiction’ to make the order sought (outside Norwich Pharmacal principles).

The case has been referenced by the Civil Procedure Rules Committee’s sub-committee which is currently considering the rules governing access to Court documents and in the Law Gazette.

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Authors

Alex Ustych

Call 2010