Friday Law Report: Solicitors could not have anonymity

Friday Law Report: 12 June 1998 Regina v Legal Aid Board, ex parte Kaim Todner Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Auld and Lord Justice Buxton) 10 June 1998

THE LEGAL profession was not entitled to special treatment in relation to applications for anonymity in legal proceedings.

The Court of Appeal dismissed the appeal of Kaim Todner, a firm of solicitors, against the refusal of its application for an order under section 11 of the Contempt of Court Act 1981 forbidding disclosure of its identity in judicial review proceedings.

The firm had held a franchise from the Legal Aid Board which had been suspended. The firm contended that the termination of the franchise was wrongful and unfair, and had applied for leave to move for judicial review of the Board's decision. That application had been granted, but the judge had refused a further application by the firm for an order under section 11 of the 1981 Act.

The firm claimed that, if the reasons upon which the Board relied for cancelling the franchise were to be made public, that was likely to cause it incalculable damage, and would seriously prejudice its reputation.

Edmund Lawson QC and Christina Russell (Kingsley Napley) for the firm; Presiley Baxendale QC and Jane Mulcahy (Legal Aid Board) for the Board; John McGuinness (Law Society) for the Law Society.

Lord Woolf MR said that there could be no justification for singling out the legal profession for special treatment with regard to anonymity, and no inference that it should be so singled out should be drawn from RSC Order 106 r 12, which provided that solicitors should not be named in disciplinary appeals to the courts. That rule was probably a remnant from earlier times when proceedings before the Solicitors' Disciplinary Tribunal had been held in private. Other professions were not, generally, granted anonymity, and the Rules of the Supreme Court should now be amended to bring the position of solicitors in line with that general practice.

Since the present case did not come within one of the four specific situations identified in section 12 of the Administration of Justice Act 1960, any protection against identification had to depend upon some exception to the general principle that all proceedings should be conducted in public. Such an exception could only be justified if it was necessary in the interests of the proper administration of justice. It was important not to forget that the public nature of proceedings deterred inappropriate behaviour on the part of the court and maintained the public's confidence in the administration of justice.

In deciding whether to accede to an application for protection from disclosure it was appropriate to take into account the extent of the interference with the general rule which was involved, and the nature of the proceedings. A distinction could be made depending upon whether anonymity was sought for a plaintiff, a defendant or a third party, but, in general, parties and witnesses had to accept the embarrassment and damage to their reputation, and possible consequential loss, which could be inherent in being involved in litigation. The protection to which they were entitled was normally provided by a judgment delivered in public which would refute unfounded allegations.

There could, however, be situations where a party or witness could reasonably require protection, but there had to be some objective foundation for the claim which was being made. In the present case, the fact that the firm did not want its name to be associated with decision of the court which might become a leading authority was not a reasonable basis for seeking anonymity.

If the firm had not raised the issue of anonymity at the stage of applying for leave, it was unlikely that the proceedings would have resulted in any publicity at least until the substantive hearing, and any such publicity, in so far as it was unfair, would be mitigated within a short time scale by the judgment of the court. Accordingly, the judge's decision to refuse the application was correct.

Kate O'Hanlon, Barrister