A Beasley v Brachers LLP and others: 6003887/2025
JUDGMENT
The Claimant’s application for an order anonymising her under Rule 49 is rejected.REASONS
[1]Tribunal rule 49 states that “49.—(1) The Tribunal may, on its own initiative or on the application of a party, make an order with a view to preventing or restricting the public disclosure of any aspect of proceedings so far as it considers necessary in the interests of justice or in order to protect the Convention rights of any person. (2) In considering whether to make an order under this rule, the Tribunal must give full weight to the principle of open justice and to the Convention right to freedom of expression.”[2]Article 6 governs the right to a fair trial and entitles everyone to “a fair and public hearing within a reasonable time by an independent and impartial tribunal.” This includes the fundamental points that justice should be done and be seen to be done.[3]Article 8 governs the right to respect for private and family life.[4]Article 10 governs freedom of expression. There is an interest in the press publishing names because it makes stories more interesting. I am conscious that what is interesting or necessary to a judge or a lawyer for the purposes of a fair hearing under Article 6 is different to what might legitimately interest the public under Article 10.[5]The balance between Articles 6 and 10 on the one hand and Article 8 on the other hand is at the heart of the decision I have to make on the Claimant’s application. It requires an intense focus on the comparative importance of the specific rights and depends heavily on the facts of each case. No one right automatically trumps another. The granting of a privacy order is not a matter of discretion.[6]In order for there to be a balancing exercise required, Article 8 must first of all be engaged, which is to say whether the litigation would involve an interference with a person’s article 8 rights. There are matters about which there is a reasonable expectation of privacy, which would be interfered with by public litigation.[7]If I am satisfied that Article 8 is engaged, I must conduct the balancing exercise bearing in mind (per Simler P in Fallows v News Group Newspapers Ltd (also known as CA v News Group Newspapers Ltd [2016] IRLR 827, [2016] ICR 801):a. The burden of establishing a derogation lies on the person seeking that derogation; andb. There must be clear and cogent evidence of harm done to privacy rights by full reporting.[8]Merely to prevent publishing embarrassing or damaging material is not a good reason for ordering anonymity.The evidence
[9]The Claimant relied on a witness statement containing a section in relation to the current application.[10]This described the claimant as extremely anxious, overwhelmed and scared about the prospect of having to disclose intimate gynecological and medical records/photographs related to the symptoms she says were caused by the fibroid including bladder dysfunction, varicose veins and an umbilical hernia. The Claimant says disclosure of this information will be highly detrimental to her mental health and wellbeing. The claimant described a fear of suffering asthma attacks.[11]The Claimant also described having started a new legal practice and not wanting her professional reputation to be overshadowed by personal medical details and for this to inhibit business development.[12]There was no medical evidence provided in support of the Claimant’s description of her anxiety or asthma. The arguments[13]Ms Ahmad stressed the limited nature of the Claimant’s application and argued that it was artificial to consider the possibility of separating medical information from the other aspects of the case, even if disability is eventually conceded, and that the neater way would be to remove the Claimant’s name. Ms Ahmad suggested there was a risk of the Claimant being inhibited from giving evidence openly and freely and that this might inhibit her Article 6 right to a fair hearing.[14]Mr Jupp argued that the Tribunal should be seeking the minimum derogation from open justice and that this could better be met by orders redacting or ordering restrictions on reporting aspects of the Claimant’s medical evidence rather than anonymising her name. Mr Jupp suggested that there was a particular public interest in the public knowing how a solicitor and part time judge was conducting litigation. Mr Jupp suggested that commercial interests relating to her new business were likely a more significant factor in the Claimant’s application.Conclusion
[15]It is clear that the Claimant’s Article 8 rights are engaged in this case. There is an expectation of privacy in relation to private medical information. However, that is the case for nearly every Claimant who brings a disability discrimination claim. Many Claimants will feel anxious, overwhelmed and scared about giving evidence on personal medical matters.[16]I am not convinced that Ms Ahmad is right that the medical aspects of the case the Claimant sees as embarrassing cannot be separated from the other parts of the case. There would seem to me no need for anyone to see photographs of the Claimant’s body at any point in the case. Clearly if a Tribunal has to determine whether the Claimant was disabled, there would need to be review of medical records and evidence of the effect on the Claimant. That is the case in many cases. The question of disability may not be disputed (or may be disputed solely on technical grounds that do not require detailed discussion of symptoms – as opposed to the effect on day to day activities). It seems like the most relevant symptoms of the Claimant’s health to the substantive merits of the claim are pain, her absences following surgery and her alleged exhaustion, which are not symptoms the Claimant has described as causing her anxiety or stress to discuss. Bladder issues may be relevant and that does seem to be a matter the Claimant is concerned not be made public. However, I think it likely that Mr Jupp’s point about redacting or ordering restrictions on reporting aspects of the Claimant’s medical evidence will likely be entirely practical (if needed at all). I consider that such derogations would infringe on Article 10 less than anonymising the Claimant’s name and would enable the Claimant to give evidence fully and openly. The detail of this is something that can be considered and decided at the start of the final hearing (or any interim public hearing).[17]Whilst I do not dismiss the suggestion that the Claimant’s mental health and well being may suffer during the process of litigation or the suggestion that she may suffer asthma attacks, there is not sufficiently cogent and compelling evidence of the likelihood or potential severity of any of this for me to give it as much weight as I might otherwise. The absence of medical information on the point is significant.[18]I give very little weight to questions of commercial concerns regarding the Claimant’s new business. There is no evidential basis for me to accept that such concerns are valid. In any event, they would weigh little in the balance of Article 8 against Articles 6 and 10.[19]Finally, there is some force in Mr Jupp’s submission that there may be legitimate public interest in the Claimant’s identification in these proceedings both generally because it makes cases more interesting for editors and particularly because of her status as a solicitor and the specific public office she holds. Whilst again not a particularly weighty factor, it does lean towards the Article 10 end of the scales.[20]Taking into account all of the matters set out above, I find that the balance favours rejecting the Claimant’s application. I am not satisfied that the Claimant has met the burden on her to justify the derivation from open justice sought. Approved by: