Dulgheriu & Anor v London Borough Of Ealing

Neutral Citation Number: [2018] EWHC 1302 (Admin) IN THE HIGH COURT OF JUSTICE QUEEN’S BENCH DIVISION THE ADMINISTRATIVE COURT Before: MR JUSTICE HOLMAN - - - - - - - - - - - - - - - - B E T W E E N : Case No. CO/1695/2018 Royal Courts of Justice Date: Thursday, 24 May 2018 (1) FLORICA DULGHERIU (2) AB (the vigil leader) Claimants - and - LONDON BOROUGH OF EALING Defendants - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - A P P E A R A N C E S MR A HENDERSON and MR B FULLBROOK (instructed by Tuckers Solicitors) appeared on behalf of the claimants. MISS K BHOGAL (instructed by London Borough of Ealing) appeared on behalf of the defendants. - - - - - - - - - - - - - - - - J U D G M E N T (As approved by the judge) MR JUSTICE HOLMAN: 1. This is an interim hearing in proceedings brought by two individual claimants against the London Borough of Ealing. 2. The topic of abortion is one which raises considerable feelings on both sides of the argument in this country and in many parts of the world. I wish to stress that I personally take no position whatsoever in relation to the rights and wrongs of abortion, and that the issues which this case raises do not themselves directly engage the morality of abortion. 3. It is a fact that, subject to the requirements of the Abortion Act, abortion is in certain circumstances legal in this country. Accordingly, there are apparently a considerable number of clinics in different parts of the country which provide the service of abortion to women who seek it and who can satisfy the requirements of the Abortion Act. One such clinic is in Mattock Lane within the London Borough of Ealing. 4. There is a considerable body of people who very strongly oppose abortion and believe that (except perhaps in exceptional circumstances) it is morally wrong. There is an organisation which is described in one of the witness statements as "a voluntary not-for-profit organisation" known as Good Counsel Network, or GCN. Frankly, I am not clear today what the precise status in law is of that body. I have been told that it is not itself a recognised charity, but that it does receive income and does disburse expenses. 5. At paragraph 23 of her statement dated 22 May 2018, the second claimant says: "The GCN is a voluntary not-for-profit organisation. I am aware that it is funded by individuals making donations at church and at conferences. It is run by a group of volunteer individuals, although GCN does employ some staff of which I am one." OPUS 2 DIGITAL TRANSCRIPTION 6. For about twenty years, volunteers, and now at least one paid person, under the umbrella of GCN have maintained what they describe as a vigil immediately outside the abortion clinic in Mattock Lane. Today is not the occasion for analysing or giving any detailed description of the activities of GCN and the people who maintain that vigil, but, as I understand it, their avowed purpose is to try to offer to women who are entering the premises with a view to having an abortion an alternative path from abortion in the hope that they may in the end be dissuaded from having one. 7. Indeed, the first claimant in this claim movingly describes in her first statement how she first became involved with GCN because she was attending the clinic to have an abortion but was herself dissuaded from doing so and is now the devoted mother of a living child. 8. As I have said, GCN and volunteers under their umbrella have been maintaining their vigil for about twenty years. Relatively recently there was a development in that other people, who take a different view on the abortion issue and debate, have also attended and maintained a presence outside the clinic, putting or encouraging the contrary view. It is, frankly, fairly obvious that once two sets of people, who are so diametrically opposed on an issue about which they feel passion, are present in the same space, a febrile tension may develop. 9. This has all come to a head recently. The London Borough of Ealing, after patently a period of considerable consultation and consideration, have made a Public Spaces Protection Order ("PSPO") under the provisions of Chapter 2 of the Anti-social Behaviour, Crime and Policing Act 2014. It is sufficient for the purposes of what I have to decide today to summarise the effect of that PSPO as follows. 10. As I understand it, it is intended to impact equally and evenly on people who both oppose and support abortion. Essentially, they are all prohibited under the order from engaging in OPUS 2 DIGITAL TRANSCRIPTION any activity at all in what is described as a "safe zone" around the clinic and extending for an appreciable distance up and down Mattock Lane. Within that safe zone, there is a very small area described as the "designated area" within which both groups of people may continue, subject to various restrictions, to engage in activities. 11. The claimants challenge in a range of respects the lawfulness of that PSPO. They say that some of the requirements or "conditions" of section 59 of the 2014 Act are not in fact satisfied and, more generally, that the effect of the PSPO is unreasonably and unjustifiably to impact on their lawful activities. They say that very important rights under the European Convention on Human Rights are engaged, including the right of freedom of expression and the right of assembly. All these issues are, of course, for another day at a substantive hearing of the challenge which they are able to make to the High Court pursuant to section 66 of the 2014 Act. 12. There was listed for hearing before me today three discrete matters. I will take them in the order in which they have been addressed. The first is whether or not the second of the two claimants should have anonymity within these proceedings as to her name and other identifying data. The second is as to whether there should be a protective costs order. The third, upon which I have not yet heard submissions and which I do not address in this judgment, is whether I should exercise the power under section 66(4) of the Act to make an order which suspends the operation of the PSPO until the final determination of the proceedings. 13. The first thing which I did today was establish with counsel the state of readiness of both sides for a final hearing and their estimate of how much court time might be required. It turned out that, essentially, both sides are now more or less fully prepared, although final skeleton arguments still require to be exchanged. The upshot was, and is, that I was able to OPUS 2 DIGITAL TRANSCRIPTION obtain from the court a final hearing date of Thursday, 7 June 2018, with the previous day set aside for judicial pre-reading. That is exactly a fortnight from today. 14. When I come to consider whether or not, in the meantime, to suspend the PSPO in whole or in part, I will, of course, do so in the knowledge now that the final determination of this claim will take place very soon indeed. 15. I address first the issue of anonymity. CPR Rule 39.2(4) provides that: "The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness." 16. I stress and emphasise the use of the word "necessary" in that rule. Any test of necessity is a high one and is more rigorous than a test of, for instance, "desirable". 17. There is relatively recent authority on this topic and in particular a decision of the Divisional Court in Y and Y and others v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) decided on 3 February 2017. In that case, the Divisional Court did make an order that four claimants who were seeking some relief against the Secretary of State for Exiting the European Union should have anonymity, not only as to their addresses and the identity of their children (which the judge had already ordered) but also as to their own actual names. 18. At paragraphs 23 and 24 of their judgment, the Divisional Court said: " 23. Whether a departure from the principle of open justice is justified in any particular case will be highly fact-specific and will require a balancing of the competing rights and interests. The starting point must be that in a Parliamentary democracy subject to the rule of law, a person who wishes to bring a public law challenge to the conduct of the Government on the ground that it is unlawful should normally be expected to do so openly and to identify himself or herself in the process." OPUS 2 DIGITAL TRANSCRIPTION 19. Pausing there, although that is directed to a challenge to the conduct of the Government which that particular case engaged, it seems to me that exactly the same approach must apply in a democracy to the conduct of a democratically elected local authority. 20. The quote continues: "24. Any exception to the principle of open justice will have to be shown to be strictly necessary in order to protect the interests of the administration of justice. The burden of establishing any derogation from the general principle rests on the party seeking it. It must be established by clear and cogent evidence." 21. Pausing there, I do note something of a shift from a rule which refers to "necessary in order to protect the interests of that party" to the words used by the Divisional Court, "necessary in order to protect the interests of the administration of justice". 22. The Divisional Court continued, however, by saying at paragraph 26: "However, members of the public should be able to bring a legal challenge such as the present without an objectively justified fear as to the possible repercussions for their or their families' safety. In the present case, these claimants rely on what they say is a clear risk to their safety and the chilling effect on litigation if their identities were known..." 23. In that particular case, much reliance had been placed on the position of a lady called Ms Gina Miller who, as was very well-known at the time, had brought an ultimately successful judicial review against the Government and who, as described in paragraph 28 of the judgment of the Divisional Court, had received death threats, other threats, racist abuse and other frankly shocking treatment. 24. The decision of the Divisional Court in Y and Y was to give anonymity. They said, importantly, at paragraphs 39 and 40: OPUS 2 DIGITAL TRANSCRIPTION "39. We consider that in this particular case to publish the names of the claimants would add little, if anything, to a proper understanding of these proceedings and the issues involved. Furthermore, the issues are such that the proceedings and the result are likely to be widely reported and read irrespective of any inability to name the claimants. This is not a case in which the grant of anonymity to the claimants will impede public debate of the issues involved... We consider that there is no public interest arising from the publication of the names of the claimants which could possibly outweigh the risk that we have found in the present case." 25. Against that background, I turn to the facts and circumstances of the present case. There are two claimants. The first of the two claimants has, in fact, consciously used her own name in these proceedings and made it publicly available. The second claimant has not and it is she, the second claimant, who seeks anonymity. 26. The point is made by Mr Alasdair Henderson, who appears on behalf of the claimants, that there are important factual differences between the circumstances of the two claimants. The first claimant is the person, whom I earlier mentioned, who herself attended the clinic with a view to an abortion and as a result of the vigil and the activities of GCN decided in the end to keep her child. It is suggested, therefore, that her very human story is such that she is unlikely or, at any rate, less likely to be the subject of any vilification or other abuse. The other difference is that the first claimant is truly a volunteer, whereas the second claimant is now employed by GCN and therefore is working at the vigil in the course of her employment. 27. On behalf of the London Borough of Ealing, Miss Kuljit Bhogal fairly makes the point that there is no evidence from the first claimant that she has personally suffered any particular vilification or ill-treatment since these proceedings were commenced and her name was OPUS 2 DIGITAL TRANSCRIPTION associated with it. So, Miss Bhogal asked rhetorically, why should we suppose that the second claimant might? 28. On the other hand, there is that difference between their two positions that Mr Henderson described. At paragraphs 13 to 15 of her first statement dated 17 May 2018, the second claimant describes how she has been the subject of a lot of abusive behaviour, ridicule, mocking and being followed, all of which she finds very intimidating. She has elaborated upon that at paragraphs 20 and 21 of her second statement dated 22 May 2018, in which she describes how, since the PSPO was made, she has been the subject of targeted and aggressive behaviour by various members of the public who perhaps feel fortified in behaving in that way because of the existence of the PSPO. 29. Unlike all or some of the claimants in the Y and Y case, I have been told that the second claimant does not herself have any children, so the interests of her children do not fall for consideration. 30. I remind myself that, as Lord Neuberger stressed in H v News Group Newspapers Ltd [2011] EWCA Civ 42 at [21]: "(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date." 31. I have decided, applying the test in the rule and the approach of the Divisional Court in Y and Y, that I should make an order permitting anonymity to the second claimant for the two weeks which now remain between today and the substantive hearing on 7 June as I have described. It does seem to me that, at any rate in the run up to the substantive hearing, this claimant should, so far as reasonably possible, be protected from any added abusive or intimidating behaviour as a result of her position as claimant in these proceedings. OPUS 2 DIGITAL TRANSCRIPTION 32. In doing so, I take into account that there is another claimant who is fully named, so that in the mind of the public, the name of at least one of these claimants is known. It is indeed possible that this is a case which will attract some publicity, either arising out of this hearing today or certainly arising out of the substantive hearing, but it seems to me that, as in the case of Y and Y at paragraph 39, the grant of anonymity to one of the two claimants for the next fourteen days is not likely to impede public debate of the issues involved. 33. I link with that that the second claimant will now be named in the proceedings as "AB (the vigil leader)". She describes herself as the vigil leader in her statements and that is the role for which she is paid by GCN. At the same time as affording to her anonymity of her name, I nevertheless wish it to be publicly identified that she is the person who is "the vigil leader". 34. I stress that, by the terms of my order, this anonymity will last only until the afternoon of the first day of the substantive hearing. The order which I make today will cease to be of any effect at 4.00 p.m. that day unless, on that day, it is renewed or extended by the judge at the hearing. He or she will, of course, be more fully apprised of the facts and circumstances of this case than I am. Further, different considerations may apply in the aftermath of a hearing than in what I have called the run up to the hearing. 35. For those reasons, and to that extent, there will be an order pursuant to CPR Rule 39.2(4) for non-disclosure of the name of the second claimant. 36. I turn to the second issue, namely whether or not I should make a protective costs order. Both counsel agree that as this is not a claim in judicial review, the so-called Corner House principles apply. They are to be found in paragraph 74 of the judgment of the Court of Appeal in R (Corner House Research) v Secretary of State for Trade and Industry [2005] EWCA Civ 192; [2005] 1 WLR 2600. I will not quote the whole of paragraph 74 of that judgment, but incorporate it into this judgment by reference. OPUS 2 DIGITAL TRANSCRIPTION 37. The first requirement is that the issues raised in the proceedings are of general public importance. I am quite satisfied that these proceedings do raise an issue of general public importance. The broad issue is as to the practice of groups or bodies such as GCN, and individuals such as these claimants, maintaining a presence and engaging in activities very close to premises where abortions may lawfully take place. The more precise issue of public importance is as to the utility or appropriateness of Public Spaces Protection Orders being made so as to regulate such activity. 38. I have been shown today a letter dated 1 May 2018 from what is described as "Back Off Coalition" to the Secretary of State for the Home Department. I have to accept for the purposes of today that this is a genuine letter sent by a genuine organisation known as Back Off Coalition and representing the long list of bodies who are listed as an attachment to the back of the letter. Some of those bodies are better known than others. Some appear to be overt pressure groups such as, for example, "Alliance for Choice" or "Doctors for Choice UK": but others include such well-known national bodies as the British Medical Association, the Royal College of Midwives, and the Royal College of Obstetricians and Gynaecologists. 39. The point that is made in the letter (rightly or wrongly) is that: "The legislation for Public Spaces Protection Orders was not designed for this purpose, but councils have been left with no other option... Across the UK forty-two clinics have been subjected to these protests in the last year alone. To rely on this same action being taken by volunteers and councils around England and Wales is not a viable solution to this problem. Nor is the patchwork approach to the protection of women accessing medical treatment that would be the inevitable result of relying on councils to respond. This is a national problem in need of a national solution. That is why we are asking this Government to bring forward legislation to introduction buffer zones outside abortion clinics and pregnancy advisory bureaux, in which anti-abortion activity cannot take place." OPUS 2 DIGITAL TRANSCRIPTION 40. If there is any substance in that letter at all, it does seem to me to indicate that this case engages topics of general public importance. 41. The second requirement is that the public interest requires that those issues should be resolved. That, as it seems to me, inevitably follows in the present case from identification of the first issue and, indeed, from the language of that letter from Back Off. The present litigation puts directly in issue the utility and appropriateness of a Public Spaces Protection Order to regulate the activity in point. It seems to me that there is a pressing need for some judicial resolution of that topic. 42. The third requirement is that the applicant, or in this case applicants, have no private interest in the outcome of the case. This is a more finely balanced consideration on the facts and in the circumstances of this case. 43. Miss Bhogal submits that even the first claimant has a "private interest" in the outcome of this case because she avowedly wishes to continue as a volunteer to maintain the vigil and protests against abortions at the clinic. 44. In my view, that is not what the words "no private interest" in paragraph 74 and the third Corner House principle envisage or are directed to. It is almost self-evident that no person would bring any kind of public law legal proceedings unless he or she felt some degree of commitment to, and intensity about, the intended result of the proceedings. People do not bring legal proceedings about matters to which they are indifferent. In my view, there is no question of the first claimant having in the relevant sense a "private interest" in the outcome of this case. 45. The position of the second claimant is more difficult. She, as I have said, is in fact employed by GCN. She says at paragraph 8 of her first statement: OPUS 2 DIGITAL TRANSCRIPTION "While I view my work as a very meaningful and fulfilling vocation, it has at the same time become a source of my income, and I am very concerned about whether it will be sustainable to continue in my current role in light of the Ealing PSPO." 46. It thus appears that the second claimant was expressing concern that she might, bluntly, lose her job or her source of income if this PSPO remains in place. That, as it seems to me, is a very direct "private interest" in the outcome of the case. 47. However, Mr Henderson has said on instructions today from his client, who is in the courtroom, that what she said in that statement dated 27 April 2018 is, in fact, no longer an accurate representation of her position. He says on instructions that GCN are, in any event, still employing her to maintain a vigil within the "designated area" as the PSPO permits, and further, that if, in the end, it was not practical or possible for GCN to continue to maintain that vigil close to Mattock Lane, there are at least two other abortion clinics within reasonable reach of her home at which the second claimant could and would be redeployed. 48. It may be that in the case of the second claimant there is some residual "private interest" in the outcome of the case, but I am satisfied for the purposes of the Corner House principles that her true motivation and interest is not any private interest arising out of her income and employment, but, rather, her altruistic commitment to the cause of seeking to reduce the number of abortions. 49. The next principle is that the court has to have regard to the financial resources of the applicant and the defendants and the amount of costs that are likely to be involved. The defendants are, of course, the London Borough of Ealing. They are funded by the taxpayer and local taxpayers and every penny is precious to them, but in proportion to any costs of this litigation, their resources are, of course, very great indeed. OPUS 2 DIGITAL TRANSCRIPTION 50. I do not actually know what costs are likely to be involved in these proceedings. The London Borough of Ealing are likely to amass a bill of some tens of thousands of pounds even if they use the services of their own in-house lawyers. On the side of the claimants, Mr Henderson has told me that he and his instructing solicitor are acting on a conditional fee agreement basis and that, as they propose as part of their application for a PCO that the costs recovery of the claimants against the defendants if the claim succeeds should itself be capped at £5,000, the ceiling of the recoverable costs on the side of the claimants would, in fact, be £5,000. 51. Each of these individual claimants has described their financial circumstances. The first claimant is, in fact, a student in receipt of a student loan and a childcare grant. She says that she has no other income apart from that and that she has no significant assets or savings. 52. The second claimant does, of course, have her income from her employment with GCN. She says at paragraph 24 of her second statement dated 22 May 2018 that her net income is usually £220 a week for her part-time work with GCN, but if she worked slightly longer hours, it might reach £250 a week. She says that is her only source of income. That income approximates to about £10,000 to £12,000 a year net. She says that she lives with a friend and makes a weekly contribution to the household costs. She says that she has very modest savings in her home country which are primarily used to support her elderly mother there. She says that she has no other significant assets or savings to her name. 53. On the basis of that evidence, I am personally quite happy to accept that the financial resources of these two individual claimants are such that they could not reasonably continue with this litigation without the protection of a protective costs order. Here, however, a much more significant issue arises. 54. Two individuals of very modest means have put themselves forward as the applicants or claimants in these proceedings. I do not myself know by what process these two individuals OPUS 2 DIGITAL TRANSCRIPTION were identified amongst the larger group of individuals who maintain the vigil. It may be that the first claimant was deliberately selected because of her own personal experience of having been diverted from abortion and now having her child. It may be that the second claimant was identified because she is actually employed as the vigil leader, as I have described. 55. It is patent, however, that there is a number of other volunteers who participate in these vigils. I know absolutely nothing about the means of any of them. More significantly, it is patent that these two claimants maintain the vigil under what I will call the umbrella of GCN. Throughout their statements, there are woven repeated references to GCN. That is the body which promotes and organises these particular vigils. That is the body who employ the second claimant, who is the vigil leader. 56. As I have already said, the precise status in law of GCN is obscure, but it is clear that it does have income, for the second claimant says so in her statement, and that it does have outgoings, for the second claimant is in receipt of a salary or regular income from GCN. I have been told that GCN has a website which includes a "donate" button so that those who support its beliefs and activities are able to make donations to it. Further, it is frankly admitted that it was GCN, and not either of these two individual claimants, who paid the court fee of several hundreds of pounds upon issue of these proceedings. 57. Towards the end of this morning, I raised with Mr Henderson my concern about what may be the financial situation of GCN. It cannot be right that a claim of this kind is brought in the names of two individuals of low means if, in truth and in the background, it is being brought or driven, or to some degree supported by, some charitable body with substantial means, and exposure to costs is then avoided by the device of a protective costs order based on the means of the named claimants. OPUS 2 DIGITAL TRANSCRIPTION 58. During the luncheon adjournment, Miss Bhogal and/or those who attend her today from the London Borough of Ealing carried out some online research. What I am about to say I am accepting in good faith from Miss Bhogal and I am assuming that any of us could, indeed, have carried out the online research to establish these apparent facts. 59. There is a registered charity known as Guild of Our Lady of Good Counsel. Pausing there, there is obvious overlap or similarity in the names of that charity and GCN. A trustee of the Guild is named as Clare McCullough. Clare McCullough is a lady who was apparently much engaged with the London Borough of Ealing in their attempts to broker some consensual resolution of the difficulties in Mattock Lane before the making of the PSPO, and she has been described to the London Borough of Ealing as director of GCN. I am told that she was the coordinator of a number of meetings. There does appear to be some nexus or connection between the charity of Guild of Our Lady of Good Counsel and the organisation known as Good Counsel Network. 60. The registered accounts of the Guild charity apparently show funds carried forward in 2016 of £1,264,000 and funds carried forward in 2017 of £1,422,000. The same accounts show that in 2016 there was incoming into the charity £430,000 and outgoing £431,000, and that in 2017 there was incoming £534,000 and outgoing £375,000. 61. Of course, having simply been told all this during the course of this afternoon, it is difficult for me to know what reliably to deduce from it. Mr Henderson frankly said that it was all coming completely as fresh news to him. 62. But the upshot is that it seems to me, on the information available today, that there is, or may be, some connection between a charity known as Guild of Our Lady of Good Counsel and the organisation known as Good Counsel Network, and that the charity in the background appears to have quite considerable accumulated capital and also quite considerable income, as well, of course, as outgoings. It seems also that Good Counsel OPUS 2 DIGITAL TRANSCRIPTION Network itself clearly has both income and outgoings. It has offices, since the statements describe how women can be persuaded not to enter the clinic, but rather to go to the offices of GCN. 63. In summary, it seems to me, very provisionally, that it may be that although the financial resources of these two identified claimants are exiguous, there is behind them a body which may be said to be intimately involved in this litigation which has, or may have, considerable financial resources. That being so, I cannot be satisfied today, as paragraph 74 of Corner House requires, as to the true financial resources of the applicants. For that reason, I decline to make a protective costs order today. I do not dismiss the application, but I make no order on it. 64. I am deeply conscious that only two weeks now elapse between today and the date fixed for final hearing of this matter, and that as those two weeks largely comprise a legal vacation, there is probably no realistic opportunity for the application for a protective costs order to be renewed between now and the date of final hearing. I am sorry about that, but the fact is that I feel unable today to make a protective costs order for the reasons I have given. 65. It may or may not be possible for the claimants to assemble further evidence to meet the points made by Miss Bhogal and the data which she says is all there online; but for today and for those reasons, I do not make a protective costs order. __________ Transcribed by Opus 2 International Ltd. (Incorporating Beverley F. Nunnery & Co.) Official Court Reporters and Audio Transcribers 5 New Street Square, London EC4A 3BF Tel: 020 7831 5627 Fax: 020 7831 7737 admin@opus2.digital OPUS 2 DIGITAL TRANSCRIPTION __________ This transcript is subject to Judge’s approval OPUS 2 DIGITAL TRANSCRIPTION