Code names, strip clubs and speed: Saunders Law advises Not Buying It, defeating Spearmint Rhino appeal

Saunders Law act for Not Buying It (‘NBI’) and its CEO, who campaign against unlawful practices in sexual entertainment venues.

Spearmint Rhino Companies (Europe) Limited appealed against a judgment of the High Court dated 30 September 2019.

The Facts

In an attempt to persuade licensing committees to review Spearmint Rhino’s licence, NBI instructed two private investigators to covertly record the conduct that took place at two of Spearmint Rhino’s clubs. The recordings were then produced to the relevant licensing committees by NBI.

Spearmint Rhino and nine of their performers (who were working on the evenings of the recordings), filed court proceedings against NBI, the CEO and the two private investigators, stating that being recorded breached their right to privacy, breached their rights under GDPR and claimed compensation and an order that the recordings be destroyed. Alongside this underlying claim, Spearmint Rhino and the performers applied to the High Court for:-

• the performers’ identity to remain anonymous in the claim form for the underlying claim (i.e to be known only as AAA, BBB, CCC etc.);
• an expedited trial of the underlying claim; and
• an injunction preventing the further production of the recordings pending the outcome of the underlying claim.

At a hearing on 11 July 2019, NBI voluntarily agreed not to further supply the recordings unless the performers’ faces were pixellated, pending the outcome of the underlying claim. NBI’s stated intention has never been to ‘shame’ the performers, moreover protect them.

That meant that the court only had to determine the issues of ‘anonymity’ and ‘expedited trial’. At the hearing on 11 July 2019, Mr Justice Nicklin determined that Spearmint Rhino and the performers had provided insufficient information for him to reach a conclusion and order further evidence in support of their application and for the matter to be heard at a later date.

On 30 July 2019, having provided further evidence to the court, Spearmint Rhino and the performers returned before Mr Justice Nicklin in the High Court to seek their orders for anonymity and expedited trial.

Saunders Law, on behalf of NBI and its CEO, stated that they were not opposed to an expedited trial or anonymity but set out that Spearmint Rhino, the performers and their legal team had failed to sufficiently demonstrate why such serious things as anonymity and expedited trial, which are derogations from the open justice principle, were necessary in this case. It was impossible to consent to either application where the legal test had not been met.

The High Court agreed with our legal team’s analysis and Mr Justice Nicklin produced a 15-page judgment explaining why he refused the applications for anonymity and expedited trial, which was handed down on 30 September 2019.

The decision is summarised below.

Anonymity

Spearmint Rhino and the performers were criticised for failing to make the application for anonymity prior to seeking to issue the Claim Form. The Claim Form could not be properly issued by the court because the court rules state that the full names and addresses of the claimants must be included (CPR 16.2 and PD16, paragraphs 2.2 and 2.6). The court was unable to serve the Claim Form where this information was missing.

The representations at the hearing by the performers’ legal team were inconsistent with their evidence, where their barrister stated that the performers did not mind people knowing that they worked at Spearmint Rhino (against an argument that some of the performers had been involved in public demonstrations in support of Spearmint Rhino), despite signed witness statements stating that their families did not know what they did for a living.

Further, the performers had only sought anonymity on the Claim Form and not in relation to any other documents or representations made during the course of the underlying claim. This in itself was a confusing stance and one that Mr Justice Nicklin determined did not justify a derogation from the open justice principle.

Expedited Trial

NBI and its CEO challenged the specific timetable that had been set out by Spearmint Rhino and the performers, as a trial in the underlying claim would have coincided with re-licencing hearings at which NBI wished to be heard.

On the advice of Saunders Law, NBI and its CEO agreed to an undertaking (effectively a legal promise) not to further provide copies of any recordings in any unpixellated format.

On the basis that the undertaking was given, Mr Justice Nicklin was not persuaded that there should be an expedited trial. Expedited trials are generally ordered where there is merit in speeding through the court process because of some justifiable risk of something happening before a final judgment is reached. The agreed undertaking negated any such risk (in this case, of the identity of the performers being portrayed through the recordings).

Appeal

Unhappy with the result, Spearmint Rhino and the performers applied to the High Court for permission to appeal against the High Court decision. Mr Justice Nicklin refused the application on 7 October 2019, reaffirming the grounds from his judgment and referring to the case authorities of Khuja and Khan v Khan.

Still unhappy, Spearmint Rhino and the performers applied for permission to appeal in the Court of Appeal. The Rt. Hon. Lord Justice Davis refused the application on 28 November 2019 stating that it was “a rather unusual application for permission to appeal” and that there was a public interest in this case (as in all cases, unless the converse can be established) and that any derogation from the public justice principle must be properly justified to the court. It was not enough to rely on the fact that NBI and its CEO did not oppose the anonymity in principle (which was Saunders Law’s position on the application of the law throughout).

What Next?

As per Mr Justice Nicklin’s order, the performers have now provided their names to the court, which appear in his final judgment (where they were originally stated as AAA, BBB, CCC etc.)

It remains to be seen, as to how the underlying claim might conclude.

It is unclear how the corporate entities that make up two of the claimants in the underlying claim have any claim under GDPR or in relation to the alleged misuse of private information. All may be revealed with their next step.

The Importance of Open Justice

In 1913, the House of Lords affirmed the common law rule that courts must administer justice in public. This principle is at the very core of the English justice system and any departure from this principle should only be in special circumstances. There has been a raft of case law on the matter since 1913 and those cases further encapsulate the importance of open justice and the caution that should be applied before any derogation from the open justice principle is sought by a party / ordered by the court.

Mr Justice Nicklin’s judgment helpfully sets out the case law referred to above and provides a reminder that there is, at the heart of our legal system, a public interest in identifying the names of parties in court proceedings.

Saunders Law’s legal team was Vikesh Navsaria, Matthew Purcell and Sharon Owusu-Akyaw, working alongside Beth Grossman of Counsel.