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Anonymity Order


Jan 29, 2018

When a party considers commencing legal proceedings, factors which may cause him to hesitate may include the publication of his name. An anonymity order may help to clear his concern.
As the name suggests, an anonymity order is an order for non-disclosure of the identity of a party in legal proceedings. Nonetheless, it does not by itself exclude members of the public or the press from attending a hearing.
The applicable principles are clarified by the Court of Appeal in the case of Re BU [2012] 4 HKLRD 417 and can be briefly summarized as follows:

  • The starting point and general rule is that judicial proceedings are held in public and the parties are named in judgments. Such right is conferred by art.10 of the Hong Kong Bill of Rights (“HKBR”).
  • It is undisputed however that the court has jurisdiction to make an anonymity order to restrict publication of a person named in its proceedings.
  • When such an order is made and the principle of open justice is thereby compromised, third parties’ right to freedom of expression guaranteed under art.16 of the HKBR is and can be restricted. 
  • Each application must be examined on its own facts and issues. The burden is on the applicant to put in sufficient materials to satisfy the court that such (anonymity) order should be made.

Following the English Court of Appeal case of R v Legal Aid Board, ex parte Kaim Todner [1999] QB 967, the Court in Chao Pak Ki & Another v Hong Kong Society of Accountants [2004] HKEC 710 took into account 3 factors, namely the extent of the interference with the general rule, the nature of the proceedings, and who is the applicant.

Extent of interference with the general rule

If the interference is for a limited period, it will be less objectionable than a restriction on disclosure which is permanent. If the restriction relates only to the identity of a witness or a party, it will be less objectionable than a restriction which involves proceedings being conducted in whole or in part behind closed doors.

Nature of proceedings

If the application relates to an interlocutory application, it will be a less significant intrusion into the general rule than interfering with the public nature of the trial since interlocutory hearings usually only concern the parties themselves.

Who is the applicant

If the applicant is a plaintiff, he should be regarded as having accepted the public nature of court proceeding since he is the one who initiates it. Compared to a plaintiff, a defendant has a better standing because he has not chosen to initiate action. Among all, a witness has the strongest standing since courts and parties would need their cooperation.
As aforesaid, each application is assessed on a case-by-case basis. Below is a summary of reasons raised by the applicants in different cases in support of their applications:

  • Re BU [2012] 4 HKLRD 417: The applicant was a torture claimant in Hong Kong, disclosure of whose identity would pose a risk of harm to himself or his family. Application allowed.
  • L v Equal Opportunities Commission & Others [2002] 3 HKLRD 178: The applicant had mental disability which would become potential material for discrimination in the future in respect of his employment and social contact. Application allowed.
  • Chao Pak Ki & Another v Hong Kong Society of Accountants [2004] HKEC 710: The applicants wished to avoid professional embarrassment which would result from a disciplinary inquiry. Application dismissed.
  • Lai Yi v Tsui Kin Chung [2015] 5 HKLRD 539: The applicant had been suffering from depression but it was not shown to the court how severe the medical condition was. Application dismissed.

 

For more information on Litigation & Dispute Resolution matters, please contact:-
Barry Hoy | barryhoy@robertsonshk.com | +852 2861 8415

 

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