Lu v SRA  EWHC 1729(Admin): Open justice vs anonymity
It has become common practice for regulators to redact the names of third parties in their decisions, and use letters instead to identify them. This is usually done without application or even notice to the defence and includes names of parties only tangentially relevant to the case as well as witnesses. So commonplace is the practice that until recently it has rarely been opposed or commented upon notwithstanding that it undermines fundamental principles of open justice.
Lu v SRA challenges this practice. Ms Lu had in fact been acquitted of all the allegations she faced, and her challenge was against the SRA’s decision to identify her whilst anonymising others mentioned in the case.
Ms Lu had been an associate solicitor firstly at Cadwalader Wickersham & Taft LLP and then at Pillsbury Winthrop Shaw Pittman LLP (referred to as firms Y and X in the Tribunal’s ruling). She was dismissed from Cadwalader for alleged performance related issues although it was her case that the real reason was that she had complained of harassment by a senior colleague, referred to in the proceedings as Person B.
Following her termination from Cadwalader, she joined Pillsbury. She raised a grievance against a person referred to as Person C and during the internal investigation allegations were made against her by several people at the firm, and in particular one of the partners referred to as Person A.
During the internal inquiry into Ms Lu’s conduct at Pillsbury, she posted a message on Instagram which Pillsbury asserted included references to Person A. Further to this initial post, it was alleged that Ms Lu uploaded offensive, threatening, and abusive posts which related to Person B. Pillsbury referred Ms Lu to the Solicitors’ Regulatory Authority.
At a case management hearing in preparation for the case she applied for the listing of the substantive case to be anonymised, the case to be heard in private and the tribunal’s decision not to be published. The SRA opposed this application championing the principles of open justice and did not initially seek the anonymisation of any of the other people involved in the case or of the relevant law firms.
Following legal argument, the tribunal ultimately decided to anonymise the names of those whose names appeared in the case papers, including the employees and partners of Pillbury who were not witnesses in the case as well as the names of the firms. The Tribunal further determined that the substantive hearing into the allegations faced by Ms Lu would be heard in private, but Ms Lu’s name was to be published and not anonymised at any stage of the proceedings.
On appeal, Kerr J, robustly defended the principle that interference with the principles of open justice including by way of anonymisation should be kept to a minimum. He upheld the tribunal’s decision not to protect Ms Lu’s identity by anonymising her name and her social media account details. Furthermore, he agreed with the tribunal’s decision to allow references, without redactions, to the background complaints made by Ms Lu of sexual harassment and the firms’ complaints about her professional performance.
Finally, Kerr J addressed the anonymisation of the third parties and roundly rejected the approach adopted by the tribunal stating:
“Courts and tribunals should not be squeamish about naming innocent people caught up in alleged wrongdoing of others. It is part of the price of open justice and there is no presumption that their privacy is more important than open justice.” [§138].
Kerr J’s judgment is a powerful rejection of what has become common practice at healthcare regulators. It sends a strong message that any derogation for the principles of open justice must cross a very high threshold indeed before an appeal court will uphold them.