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Until recently, anonymity orders in particular types of civil proceedings tended to be granted without much judicial resistance, particularly if the parties themselves agreed on the need for an order. But it is increasingly clear from recent case law that the courts will be less willing to make this type of order routinely in the future, irrespective of the parties' wishes.

The past year alone has thrown up a handful of cases suggesting that the higher courts are rewriting the rule book on when a solicitor's request for their client's anonymity will be accepted. It seems that, from now on, applicants will need to read between the lines of such judgments to ensure they are giving their client the best chance of privacy.

Open justice has long been a cardinal principle of English common law, a point reiterated in many decisions. As Lord Haldane emphasised in Scott v Scott [1913] AC 417: 'In public trial is to be found'¦ the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.'

Almost a century on, Haldane's sentiments were again reflected in Re Guardian News and Media Ltd and others [2010] UKSC 1, when Lord Rodger observed: 'In the United Kingdom, until the recent efflorescence of anonymity orders, the general rule both in theory and in practice was that judicial proceedings were held in public and the parties named in judgments.' But, as noted by Roger, parliament has created various statutory exceptions to the general common law principle.

Competing rights

It is clear that such orders have become quite commonplace. Many practitioners assume that if an anonymity order sought under CPR 39.2 or CYPA 1933 is agreed between the parties then the court will rubber stamp the application. This assumption reflects widespread judicial practice, at least until recently.

However, in recent cases, judicial anxiety has been stoked by the freedom of expression requirements of article 10 of the European Convention on Human Rights. It is settled law that preventing the press from reporting the name of a litigant is potentially an interference in the press' article 10 rights, and by extension those of the public who would otherwise receive the information. Against that can be set article 8, the individual's right to private and family life, which may point

in favour of a grant of anonymity in certain circumstances. In the balancing exercise between articles 8 and 10, the courts have expressed concern that article 10 rights may be disregarded.

As Mr Justice Tugendhat observed in Bernard Gray v UVW [210] EWHC 2367 (QB) (reported 15 October 2010): 'The court is obliged to have regard not only to the interests of the parties, but also to the interests of the public. The public are in a position analogous to a defendant against whom an order has been made without notice.

'An application for an order that the names of the parties... be not disclosed is derogation from the principle of open justice and an interference with the rights of freedom of expression of the public at large.'

Similarly, in Secretary of State for the Home Department v AP [2010] UKSC 26 (a case concerned with an anonymity order made in the context of a control order), the Supreme Court highlighted the competing rights of privacy verses public interest, and cited Sir Christopher Staughton's warning in R v Westminster City Council, (1998) 31 HLR 154, that 'when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant'.

Judicial anxiety that applications under CPR 39.2 should not simply be rubber stamped can be seen from LK v Sandwell & West Birmingham Hospitals NHS Trust [2010] EWHC 1928 (QB). In this case Mr Justice Tugendhat noted: 'It is not uncommon in applications for approval of settlements of personal injury claims for anonymity orders to be made, but is certainly not, or should not be, considered a normal order, or an order where the parties can expect the court to simply endorse any agreement the parties may have reached.'

Mr Justice Tugendhat stressed that there are cases where the parties, and in particular defendants to personal injury claims, might wish for an anonymity order for reasons which have nothing whatever to do with the interests which are referred to in CPR 39.2(4).

Consequently, the court must be provided with specific evidence and argument as to what the interests are that it is necessary to protect or such an order will not be made.

Striking the right balance?

Civil claims involving children and vulnerable adults may well raise issues of public interest. Where a health trust pays a multi-million pound settlement to a victim of clinical negligence, there is clearly a strong public interest in the failings of the NHS and the resulting expense to the public purse.

Similarly, with 'failure to protect' claims being brought against local authorities, alleging that social workers have failed to protect a child from foreseeable abuse, there is clearly a legitimate public interest in the reporting of such cases.

However, why should an anonymity order prohibiting the naming of the claimant impair the public interest in the case? It could be argued that to satisfy the public interest in the failings of the NHS it is necessary for the public to know that a case has been brought and an award made, but it is not necessary for the public to know the identity of the claimant.

The counter argument was explained by Lord Rogers in the Guardian case, when he stated: 'What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people.

'Article 10 protects not only the substance of the ideas and information but the form in which they are conveyed'¦ a requirement to report in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read.

'Ultimately such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.'

The road ahead

How the courts will strike the balance between article 8 and 10 in civil cases remains to be seen. The cases cited above are all recent and it will be a little while before the effect of such comments on judicial practice in the lower courts becomes fully apparent. However, it is clear that the lower courts will not now 'rubber stamp' anonymity applications in the way they have in the past.

But, even against this backdrop, there are a few points that can be gleaned to ensure a practitioner's application does not go to waste.

First, the test under CPR 39.2 is 'necessity', so an application must set out clearly why the order is necessary in the particular case; for example, precisely how the claimant would (not might) be too fearful to litigate or be at risk of exploitation/unwanted attention if his details are publicised. If it is alleged that a vulnerable claimant may be at risk of exploitation, supporting evidence should be put before the court.

Second, you must be very specific. Lord Rodger commented in AP that it will not be sufficient for an applicant for anonymity to rely on 'generalised assertions' or 'hypothetical fears which may turn out to be exaggerated' and the court will want to 'concentrate on the available information about the circumstances of (the) particular case'.

In civil claims involving allegations of sexual and/or physical abuse or neglect, practitioners will need to consider whether the matters alleged fall entirely within the scope of section 1 of the Sexual Offences (Amendment) Act 1992. If they do, then an application under CPR 39 is unlikely to satisfy the necessity test, since anonymity is protected in any event.