AAA & Others v Dr Sasha Rakoff & Others [2019] EWHC 2525 (QB)

AAA & Others v Dr Sasha Rakoff & Others [2019] EWHC 2525 (QB) concerned an application for anonymity and expedition brought by eleven claimants, the first nine of whom were performers employed at sexual entertainment venues operated by the tenth and eleventh claimants under the name Spearmint Rhino. Mr Justice Nicklin refused both applications.

The first to ninth claimants worked as lap dancers or strippers at Spearmint Rhino premises, which operated lawfully as licensed sexual entertainment venues. The first defendant was Chief Executive Officer and spokesperson for the second defendant, Not Buying It Limited, a campaigning organisation that opposed such venues and sought to expose what it alleged were breaches of the venues’ operating licences. As part of its campaign, Not Buying It engaged the third and fourth defendants, private investigators, to conduct covert surveillance at Spearmint Rhino venues in Camden and Sheffield in February 2019. The investigators made video recordings of the performers during those visits. Not Buying It intended to use the footage as evidence before local licensing hearings and to publicise what it claimed were regulatory breaches, though the first defendant had stated that Not Buying It would not, without consent, disclose footage that identified any individual performer or include identifying information in written evidence. Nevertheless, the claimants issued proceedings for misuse of private information and breach of the Data Protection Act 2018, seeking interim injunctive relief, an expedited trial, and an order permitting them to issue the claim anonymously, using the initials AAA to III in place of their names.

At a hearing on 11 July 2019, the claimants reached agreement with the first and second defendants on undertakings. Those defendants undertook not to further circulate, publish, or cause to be published the footage without pixelation of the performers’ faces, subject to limited exceptions permitting disclosure to investigating officers of Camden and Sheffield local authorities, their own legal advisers or insurers, and as required by court order. The applications for anonymity and expedition were adjourned to 30 July 2019. By that date, it had emerged that the claimants had not obtained a sealed claim form because they had failed to apply for anonymity and the necessary permission to issue without providing their names and addresses before attempting to issue proceedings, and consequently none of the defendants had been properly served.

The anonymity application sought only a CPR 16.2 order permitting the claimants to issue and conduct proceedings using initials in place of their names. The claimants did not seek a reporting restriction order prohibiting identification of the individual claimants by the media or the public. The judge noted that CPR 16 orders and reporting restriction orders are distinct, the former being merely permissive and not binding on third parties, the latter being a form of interim injunction enforceable under the Spycatcher principle. The claimants’ draft order failed to include the necessary permission to issue the claim form without full names and addresses, and omitted any reporting restriction. Counsel confirmed that no reporting restriction was sought and that the claimants did not object to being identified in media reports as Spearmint Rhino performers involved in the proceedings.

The judge reviewed the principles governing derogations from the fundamental principle of open justice. He emphasised that such derogations are exceptional, must be justified by clear and cogent evidence, and must be strictly necessary and no more than the minimum required. Two categories of case may justify derogation: where without an order the administration of justice would be frustrated, and where the order is necessary to protect other legitimate interests. The judge cited authority establishing that open justice includes the public identification of parties and witnesses, that the burden of justification lies on the applicant, and that the court must balance Convention rights and the public interest in open justice in a fact-specific manner. The judge noted that in privacy cases anonymity is often justified because public identification would destroy the very thing the claimant seeks to protect. He contrasted this with most harassment proceedings and other civil claims where anonymity is rarely justified because public proceedings do not frustrate the administration of justice.

The claimants relied on witness statements from each of the individual performers. Those statements initially suggested that the performers regarded their employment at Spearmint Rhino as confidential or private information and feared harm to their reputations and family lives if identified. However, at the hearing counsel clarified that the claimants were not concerned about being identified as Spearmint Rhino performers. Their concern was instead that details from the secretly recorded footage might come into the public domain during the proceedings. The judge found this position difficult to understand. If the claimants did not seek any restriction on reports identifying them as performers and as parties to the proceedings, an anonymity order that merely replaced their names with initials would serve no purpose and would artificially hinder reporting without any corresponding justification.

The judge held that the argument that anonymity was necessary to prevent details of the footage entering the public domain was premature and did not justify an anonymity order. The defendants had not yet served a defence or been properly served with the claim form. It remained to be seen whether any defendant would contend that publication of the footage or details of its contents was justified in the public interest, and whether fair disposal of any such issue would require detailed analysis of the footage at trial. If such issues arose, the court could adopt targeted measures to respect any Article 8 rights engaged at that stage. The fact that an issue might need to be addressed later in the proceedings did not justify anonymising the individual claimants at the outset. The judge rejected the anonymity application on the basis that the claimants had failed to establish by clear and cogent evidence that anonymity was strictly necessary, and that the anonymity order sought was neither necessary nor proportionate to the concerns identified.

The application for expedition was also refused. Given the undertakings provided by the defendants not to publish the footage without pixelation of performers’ faces, the judge was not satisfied that there was sufficient urgency to justify advancing the case to trial ahead of other litigants. The claimants had not yet managed to serve any defendant with a claim form. Counsel for the claimants argued that notwithstanding the undertakings there remained a risk of unauthorised disclosure of the digitally held footage, for example through hacking, which would be eliminated only by a final order requiring deletion or delivery up of the footage. The judge treated this risk as fanciful and far too remote to justify expedition, which would cause knock-on delay to other pending civil claims. The case would proceed to trial, if necessary, through the usual case management phases.

The judge directed that pending any appeal the judgment would be handed down without including the claimants’ names in order to preserve their appeal rights, but that if no appeal were lodged or if an appeal were unsuccessful a further copy would be issued with the claimants’ names included. In short, the court refused both the anonymity order and the application for expedition on the basis that the claimants had failed to establish that either derogation from open justice or acceleration of the proceedings was justified on the facts.

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Khan (formerly JMO) v Khan (formerly KTA) [2018] EWHC 241 (QB)

Khuja (formerly known as PNM) v Times Newspapers Ltd [2017] UKSC 49, [2019] AC 161, [2017] 3 WLR 35

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