Claimant who refused to tell the court or his opponent who he was runs out of track

In ABC v Google LLC [2019] EWHC 3020 (QB) the High Court dismissed the latest attempt by an anonymous litigant-in-person (‘ABC’) to continue his ‘right to be forgotten’ claim against Google.  The claim concerned Google’s failure to block access to historic news reports concerning ABC (whomever he may be).  Extraordinarily, ABC pursued his claim for nearly two years without ever identifying himself either to his opponent or to the court.

It is not uncommon for litigants (particularly claimants) to seek anonymity in media and communications claims.  This is essential in cases where it would defeat the purpose of the claim for the party (or parties) to be identified to the public and the press.  By way of example, claimants bringing claims seeking to suppress the unjustified publication of private information regularly seek anonymity.

In ABC, the claimant, a litigant-in-person, was granted permission by the practice master in December 2017 to bring his claim anonymously, using the cypher ‘ABC’.  As is usual in such circumstances, he was ordered to provide the court and the defendant with two copies of the claim form: one in which he was anonymised, and a second one to be sealed in the court file which included his full name and address.  ABC failed to provide the unanonymised claim form, but nevertheless attempted to pursue his claim despite Google – and the court’s – protestations.  On 24 August 2018 Mr Justice Nicklin made an ‘unless’ order requiring ABC to provide the unanonymised claim form within seven days, failing which the claim would be struck out (see our case comment here).  Still, ABC did not comply.  Further applications and appeals by ABC followed, culminating in an application for relief from sanctions (the sanction in question being that the claim was struck out), which was heard by Mr Justice Saini on 4 November 2019.  That application for relief was dismissed as being totally without merit, for being essentially another attack on the underlying order, rather than a bona fide explanation as to why ABC had not complied.  Subject to any appeal (which would seem to be doomed to fail, particularly as ABC had still not complied with the unless order at the time the relief application was heard), it seems that ABC’s claim is now, finally, at an end.

A defendant needs to know who is suing them

ABC was determined to hide his identity from everyone, including the defendant, the court staff and the masters and judges hearing his claim.

It is a long-standing and uncontroversial principle of English law that all parties to litigation are entitled to a fair trial and, accordingly, that every defendant is entitled to know who they are being sued by.  The right to a fair trial is now also enshrined in Article 6 of the European Convention on Human Rights.  Article 6 explains the circumstances in which the principle of ‘open justice’ may be derogated from:-

“Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

As the courts have repeatedly made clear, anonymity is a departure from the ‘open justice’ principle and will only be granted where it is justified and strictly necessary – see, for instance, our recent blog post “Strippers denied anonymity in privacy claim”.  Where anonymity is granted it is kept under review and may be subject to conditions.

ABC argued that if Google was made aware of his identity then it was likely to “dox” him by revealing his identity on the Lumen database.  He claimed to be genuinely worried that Google would breach the anonymity order.  Those arguments did not get very far.  As Saini J noted, it is “hard to conceive of circumstances where civil process could proceed absent such identification” [29].

Compliance with court orders and directions

Perhaps the most notable aspect of this case is the length of time for which ABC managed to pursue his claim despite his repeated failure to comply with court orders and directions.

The Supreme Court confirmed in Barton v Wright Hassall LLP (Respondent) [2018] UKSC 12 that litigants-in-person are expected familiarise themselves with and comply with court rules and procedures, and are not entitled special dispensation simply because they are unrepresented.

This case is a paradigm example of why it is so important that all parties (including litigants-in-person) comply with court orders.  In his attempt to avoid complying with the original order that he provide an unanonymised copy of the claim form, ABC wasted substantial amounts of court time (involving over 10 judges or masters) and caused significant costs to be wasted by the defendant.  Saini J described ABC’s approach to the court’s orders and directions as “abusive” [25].

Not a genuine relief application

As noted above, Saini J held that ABC’s application was not a genuine application for relief from sanctions.  In a genuine application for relief, he noted, “the starting point must be that the sanction has been properly imposed and complies with the overriding objective” [36].  Rather than seeking to mitigate his default, ABC was trying to argue that the order of Nicklin J should not have been made in the first place.  ABC had already tried, and failed, to appeal that order, and this application was simply another (and improper) attempt by ABC to avoid providing the unanonymised claim form.

 This decision provides yet another reminder of why it is important to obtain specialist legal advice in media and communications disputes.  ABC’s concerns about Google undermining the anonymity order were almost certainly misguided; Google and its lawyers are used to dealing with anonymised claims and there was no reason to believe that Google would act maliciously.  On any view, there was no reason why the court should have been kept in the dark.  ABC has now been barred from arguing what could have been a claim with merit.   Moreover, if identified, he faces a potentially ruinous costs order.  While litigants may be hesitant to incur the costs of legal advice at the outset of a claim, the cost of not doing so may be – as in this case – far greater.