Tim Holloway is a barrister of over 33 years’ call, a member of the 'A Panel' of the Attorney General’s Regional Panel of Counsel to the Crown (Civil) (formerly, ’Treasury Counsel’) and ranked as a Tier 1 Leading Junior in Inquests and Inquiries in The Legal 500 2025.
Tim has an extensive practice in civil and employment litigation and inquisitorial proceedings (inquests and inquiries). He has over 25 years’ experience of Government litigation and Article 2 inquests involving Government departments, executive agencies and other public bodies. He is instructed regularly on behalf of central and wider Government and is a member of the Counsel team appointed to act on behalf of the Cabinet Office as one of the A Panel leads in the UK Covid-19 Inquiry.
Tim’s practice encompasses all aspects of procedure applicable to civil and employment litigation and inquisitorial proceedings, including public interest immunity and anonymity applications.
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Anonymity: Ordering the Alphabetti Spaghetti
XY v AB [2025] EAT 66
The 67 page judgment in this less than intriguingly named case was handed down by Mr Justice Cavanagh, sitting in the Employment Appeal Tribunal on 13 May 2025.
It concerns an appeal against a permanent anonymity order, made in favour of the Respondent, in a claim of sex discrimination brought against him by the Appellant, the anonymity order having been made under Rule 50 of the Employment Tribunals (Rules of Procedure) Regulations 2013 See now, Rule 49 of The Employment Tribunal Procedure Rules 2024.
The judgment provides guidance which will be useful to practitioners considering anonymity applications both in the Employment Tribunal and in other jurisdictions.
The Appellant had withdrawn her claim against the Respondent before her allegations had been tested in evidence and ruled upon, but had continued to make allegations against him in breach of rule 50 orders and had made false assertions to third parties that she had won a sexual harassment claim against him. These and other considerations had led the Employment Judge to make the permanent anonymity order.
In the course of addressing the appeal, Cavanagh J bore two things firmly in mind:
- In many cases, there will be no absolute, or binary, right or wrong answer to the question whether a permanent anonymity order should be made in a particular case. There will be cases in which different judges, correctly directing themselves in law, might reach different conclusions as to whether the order should be made, without falling into error.
- It is not the role of the appellate judge to substitute his or her view as to whether a permanent anonymity order should be made for the view of the first instance judge. The appellate court should only interfere if the first instance judge made an error of principle or reached a decision that was plainly wrong, or which was outside the ambit of conclusions reasonably open to him or her.
Cavanagh J derived the following points of law and principle from the authorities.
The approach that should be taken by a Tribunal
- The same approach should be applied to derogations from open justice, including anonymisation, in employment claims in the ET as in any other type of claim.
(F v G [2012] ICR 246)
- The principles of open justice still apply, even if a case has been settled and there has been no determination on the merits.
(Fallows v News Group Newspapers Ltd [2016] IRLR 827)
- The burden rests with the party seeking a derogation from open justice to establish that it is necessary.
(Roden v BBC [2015] IRLR 627)
- The ET should first ask itself whether the derogation sought is justified by the common law exception to open justice, and should then go on to check its conclusion against the relevant Convention rights.
(Rule 50(2) and Millicom Services UK Ltd and others v Clifford [2023] IRLR 295)
- The ET must undertake a balancing exercise.
(Kennedy v Information Commissioner (Secretary of State for Justice Intervening) [2014] UKSC 20; [2015] AC 455 and A v British Broadcasting Corporation (Secretary of State for the Home Department intervening) [2014] UKSC 25; [2015] AC 588)
- The question whether there should be a derogation from the principle of open justice in a particular case is fact specific.
(Kennedy and A v BBC)
- An ET is generally better placed than the EAT to carry out the assessment that is required when considering a derogation from open justice.
(Fallows)
The common law stage of the analysis
- The open justice principle is paramount and so any derogation from it must be avoided unless justice requires it.
(Global Torch Ltd v Apex Global Management Ltd [2013] 1 WLR 2993)
- A derogation from open justice will, in general, only be justified if it is concerned with the promotion of the interests of justice. This includes circumstances in which justice would otherwise be prevented from being done in the particular case, or where it is necessary to promote the requirements of the due administration of justice in the proceedings. A derogation may also be justified where the derogation is necessary to ensure that justice is done in other proceedings (Millicom). The Court of Appeal in Millicom did not say, however, these were the only possible justifications.
(Millicom)
Considerations that are relevant to the common law stage of the analysis
- The burden of establishing that a derogation from the general principle of open justice is necessary lies with the person seeking it.
(In re Guardian News and Media Ltd [2010] 2 AC 697)
- The need for the derogation must be established by clear and cogent evidence.
(Guardian News and Media)
- The ET should take into account the importance to the case of the information that is sought to be withheld and the harm that the disclosure would cause.
(Millicom)
- The ET should also take account of the role of the applicant in the proceedings, i.e. whether they are claimant, defendant, or witness
(Millicom)
- The ET should take account of the purposes of open justice that were identified by Baroness Hale in Dring, namely to enable public scrutiny of the courts and tribunals and to promote public confidence in, and understanding of, the courts.
(Dring v Cape Intermediate Holdings Ltd [2019] UKSC 429)
Considerations that are relevant to the check against Convention rights
- There must be an intense focus on Convention rights.
(In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593)
- In most (though not necessarily all) cases, the relevant Convention rights will be those under Article 6 (fair hearings); Article 8 (right to family life, which includes privacy rights); and Article 10 (freedom of speech).
- The Convention Rights should be balanced against each other. The balancing exercise is necessary because, in many cases, considerations relating to Convention rights will point in different directions (especially where, as will usually be the case, Articles 8 and 10 are engaged). No Convention right takes precedence over the others.
(Re S)
- A proportionality test must be applied.
(Re S)
Considerations that are of particular relevance in anonymity cases such as this
- As a general principle, parties to litigation should expect that their names will be made public.
(R v Legal Aid Board ex p Kaim Todner [1999] QB 966, and PMC (a child by his mother and litigation friend FLR) v A Local Health Board )
- A desire for anonymity is not a reason in itself to grant it: publicity is the price to be paid for open justice and the freedom of the press.
(Khuja -v- Times Newspapers Ltd [2019] AC 161)
- The fact that ventilation of allegations is painful or humiliating is not a reason in itself to grant anonymity.
(Scott -v- Scott [1913] AC 417 and A v Burke and Hare [2022] IRLR 142)
- The burden of showing that a derogation from open justice is greater where the applicant is seeking indefinite anonymity as compared to when the applicant is seeking anonymity for a limited period, such as until judgment at the end of a trial.
(cf Fallows at 63, and M v Vincent [1998] ICR 74, at 76C-E, per Morison J)
- A respondent is in a different position from a claimant. A respondent may have an interest equal to the claimant in the outcome of the proceedings, but the respondent has not chosen to initiate court proceedings which are normally conducted in public. In general, though, all parties have to accept the embarrassment and potential damage to their reputation from being involved in litigation.
(Kaim Todner)
- Where an allegation is made but is not finally determined, the public can generally be trusted to understand that unproven allegations that were made and then withdrawn are no more than that, but that does not mean that the fact that the truth or falsity of the allegations were never determined after a full hearing is an irrelevant consideration.
(Fallows and A v X [2019] IRLR)
- Therefore, if an application for a derogation from open justice relates to an interlocutory application, this is a less significant intrusion into the general rule than interfering with the public nature of the trial (Kaim Todner). The public interest in open justice is at its strongest when it restricts or interferes with reporting or publishing the merits of the case. This will usually be after evidence has been led.
(A v Burke and Hare)
Outcome
The appeal against the permanent anonymity order made in favour of the Respondent was dismissed, and the anonymity order made in favour of the Respondent in relation to the EAT proceedings, and the judgment, was made permanent. Cavanagh J also decided to grant permanent anonymity to the Appellant both in relation to the ET proceedings and the EAT proceedings, for reasons which were not connected with the subject-matter of the proceedings.
Comment
The case serves as a reminder that applications for anonymity should be evidence based. The principle that, in general, a derogation from open justice will only be justified if it is concerned with the promotion of the interests of justice is of particular importance, both to the protection of open justice itself and to the protection of those who are vulnerable and can point to the need for anonymity in order to enable them to give evidence.
