KL and NN v Sunday Newspapers Limited  NIQB 88
Case date: 16/10/2015
Court: Northern Ireland High Court
Area/s of law: Open Justice
Barrister/s: Jonathan Scherbel-Ball
The Northern Ireland High Court has handed down an important judgment emphasising the importance of open justice principles in civil claims and setting out the procedure to be followed in Northern Ireland when a party seeks anonymity in such cases.
The Plaintiffs, who remain anonymised pending the substantive hearing of an application to court, had commenced proceedings in June 2015 against the Defendant, the publisher of the Sunday World. The Writ was issued using their initials, thereby seeking to maintain their anonymity, but no application was made for anonymity and there was no order for the court permitting them to do so. The Defendant objected to the Plaintiff’s unilateral anonymisation of the Writ.
The Plaintiffs had not followed the correct procedure to seek anonymity in civil proceedings.
Mr Justice Stephens emphasised the importance of the principles of open justice under both the common law and the European Convention of Human Rights – R (Osborn) v Parole Board  UKSC 61;  3 WLR 1020.
The correct procedure was for a party to bring an application pursuant to Order 29, Rule 1 of the Rules of the Court of Judicature (Northern Ireland). The judge ruled that anonymity orders and reporting restriction orders amounted to an injunction and an application for anonymity can and should be made prior to the issuing of the claim.
The procedure for applying for anonymity in Northern Ireland should closely follow the Master of the Rolls’ Practice Guidance on ‘Interim Non-Disclosure Orders’  1 WLR 1003 adapted according for Northern Ireland procedure. This meant that the Plaintiff should prepare a draft Writ, an affidavit justifying the need for anonymity and reporting restrictions, legal submissions and a draft order.  The burden of proof lay clearly on the party seeking the derogation from open justice and any such application must be supported with clear and cogent evidence.  Where an affidavit was not given by a party itself but by a lawyer acting on their behalf, an undertaking should be provided that the party themselves would provide an affidavit. 
Jonathan Scherbel-Ball, instructed by Carson McDowell LLP, was Junior Counsel for the Defendant.
The judgment is available here.