Dr Theodore Piepenbrock v London School of Economics and Political Science & Ors

CPR 7.5(2) provides that where the Claim Form is to be served out of the jurisdiction it must be served in accordance with Section IV of Part 6 within six months of the date of issue. Application may be made for an order extending the period for service, pursuant to CPR 7.6(1). The application should generally be made before this period has expired: CPR 7.6(2). If the application is made after the end of this period, the court may only grant an extension of time in the circumstances identified in CPR 7.6(3).

CPR 6.40 contains general provisions about the method of service of a Claim Form out of the jurisdiction. CPR 6.40(3) provides that where service is to be effected on a party out of the United Kingdom, it may be served by any method provided for in rules 6.42 and 6.44 or by any other method permitted by the law of the country in which it is to be served. CPR 6.42 addresses service through foreign governments, judicial authorities and British Consular authorities. CPR 6.44 is concerned with service on a State.

The Claimant submits that the permission of the court is not required in this instance. Service of the Claim Form without permission is addressed by CPR 6.33. Dr Piepenbrock relies upon 6.33(2), 6.33(2B) and/or 6.33(3). The material parts are as follows:

“(2)

The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine under sections 15A to 15E of the 1982 Act and-

(a)

no proceedings between the parties concerning the same claim are pending in the courts of any other part of the United Kingdom and

(b)

…..

(iii)

the defendant is an employer and a party to a contract of employment within section 15C(1) of the 1982 Act

(2B) The claimant may serve the claim form on the defendant outside of the United Kingdom where, for each claim made against the defendant to be served and included in the claim form-

(a)

……

(b)

a contract contains a term to the effect that the court shall have jurisdiction to determine the claim.

(3)

The claimant may serve the claim form on a defendant out of the United Kingdom where each claim made against the defendant to be served and included in the claim form is a claim which the court has power to determine other than under the 2005 Hague Convention, or notwithstanding that-

(a)

the person against whom the claim is made is not within the jurisdiction; or

(b)

the facts giving rise to the claim did not occur within the jurisdiction.”

References to the “the 1982 Act” in CPR 6.33(2) are to the Civil Jurisdiction and Judgments Act 1982 (CPR 6.31(b)). Sections 15A to 15E of that Act concern cases brought by or against United Kingdom domiciled consumers and cases brought by or against United Kingdom domiciled employees, or by employees working in the United Kingdom or engaged by a United Kingdom business.

As regards the CPR 6.33(2B) exception, it is not suggested that Dr Piepenbrock had a contract with D9; for these purposes he relies upon his employment contract with the LSE. The circumstances in which a jurisdiction clause in a contract will cover third parties were summarised by Andrew Burrows QC, sitting as a Deputy High Court Judge, in Clearlake Shipping Pte Ltd v Xiang Da Marine Pte Ltd [2019] EWHC 2284 (Comm). He said that it was a question of interpreting the particular clause by reference to the modern contextual and objective approach to contractual interpretation; so that the court must ask “what the clause, viewed in the light of the whole contract, would mean to a reasonable person having all the relevant background knowledge reasonably available to the parties at the time the contract was made” (para 23). However, the starting point when interpreting a jurisdiction clause was that only the parties to the contract were covered by it (para 24).

In relation to the CPR 6.33(3) limb, the key question is the meaning of “a claim which the court has power to determine”. This is considered at para 6.33.5 of the White Book where the text explains:

“This rule derives from RSC Ord.11 r.1(2)(b), which referred to a claim which by virtue of “any other enactment” the court had power to determine notwithstanding that neither the defendant nor the relevant conduct were within the jurisdiction. In Orexim Trading Ltd v Mahavir Port and Terminal Private Ltd [2018] EWCA Civ 1660; [2018] 1 W.L.R. 4847, the Court of Appeal noted that CPR 6.33(3) is in very similar terms to RSC Ord.11 r.1(2)(b) and that, although the power of the court under the current rule is not limited to claims brought under an enactment, it “seems unlikely that that omission was intended to change the scope of the rule”: see Dicey, Morris & Collins, The Conflict of Laws (15^th edn), para 11-136.”

Where a claimant intends to serve a Claim Form under CPR 6.33, they must file a notice with the Claim Form stating the grounds relied upon for these purposes and serve a copy of that notice when the Claim Form is served on the defendant: CPR 6.34(1). If the notice is not filed, then the Claim Form may only be served once it has been filed or if the court permits this: CPR 6.34(2).

Where the circumstances do not come within CPR 6.33 (or CPR 6.32, which is not relied upon in this instance), the Claim Form may be served out of the jurisdiction if the court gives permission on the basis of the gateways set out in para 3.1 of Practice Direction 6B: CPR 6.36. An application for permission must set out which para 3.1 ground is relied upon; that the Claimant believes that the claim has a reasonable prospect of success; and the defendant’s address, if known, or in what place they are likely to be found: CPR 6.37(1). Furthermore, the court will not give permission unless satisfied that England and Wales is the proper place in which to bring the claim: CPR 6.37(3).

Dr Piepenbrock seeks to rely upon the following gateways in PD 6B, para 3.1:

“(3)

A claim is made against a person (‘the defendant’) on whom the claim form has been or will be served (otherwise than in reliance on this paragraph) and

(a)

there is between the claimant and the defendant a real issue which it is reasonable for the court to try; and

(b)

the claimant wishes to serve the claim form on another person who is a necessary or proper party to that claim.

Claims in tort

As summarised at para 6.37.2 of the White Book, the application for permission under CPR 6.36 should be made on a Form N244 Application notice and include the additional information referred to in Form PF6A (which reflects the requirements of CPR 6.37). The form states that the claimant must set out, either in the application or in an accompanying witness statement, the matters referred to in CPR 6.37(1) and the facts relied on under CPR 6.37(3).

The criteria that the court must consider when determining an application for permission to serve out are set out at para 6.37.13 of the White Book as follows:

“The general principles to be applied by the court, when hearing and determining an application under r.6.36, were summarised in Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7; [2012] 1 W.L.R. 1804, PC, at [71], [81] and [88] per Lord Collins, and in VTB Capital Plc v Nutritek International Corp [2012] EWCA Civ 808; [2012] 2 Lloyd’s Rep. 313, CA at [99] to [101], in a joint judgment delivered by Lloyd Jones LJ. The claimant must satisfy the court:

1.

That there is a good arguable case that the claim against the foreign defendant falls within one or more of the heads of jurisdiction for which leave to serve out of the jurisdiction may be given as set out in para 3.1 of PD 6B…

2.

That, in relation to the foreign defendant to be served with the proceedings, there is a serious issue to be tried on the merits of the claim…

3.

That in all the circumstances (a) England is clearly or distinctly the appropriate forum for the trial of the dispute (forum conveniens)…and (b) the court ought to exercise its discretion to permit service of the proceedings out of the jurisdiction…”

In this context “a good arguable case” requires more to be shown than that there is a serious issue to be tried or a real prospect of success, but less than success on a balance of probabilities: Carvill America Inc v Camperdown UK Ltd [2005] EWCA Civ 645, [2005] 2 Lloyd’s Rep. 457, CA per Clarke LJ (as he then was) at para 45. In Canada Trust v Stolzenberg (No. 2) [1998] 1 W.L.R. 547 Waller LJ said at 555E that the requirement for “a good arguable case” reflects “that one side has a much better argument on the material available”. In Brownlie v Four Seasons Holding Inc [2017] UKSC 80, [2018] 1 W.L.R. 192, Lord Sumption explained that having “a much better argument” meant: (1) that the Claimant must supply a plausible evidential basis for the application of a relevant jurisdictional gateway; (2) that if there is an issue of fact or some other reason for doubting that it applies, the court must take a view on the material available if it can reliably do so; but (3) the nature of the issue and the limitations of the material available at this stage may mean that no reliable assessment can be made, in which case there is a good arguable case for the application of the gateway if there is a plausible evidential basis for it.

The requirement that there be “a serious issue to be tried” in relation to the merits of the claim means that a claimant must show that the claim has a real, as opposed to a fanciful, prospect of success: Altimo Holdings and Investment Ltd v Kyrgyz Mobile Tel Ltd [2011] UKPC 7, [2012] 1 W.L.R. 1804 at para 71. As the authors of the White Book observe at para 6.37.15, the threshold under this test is the same as when a claimant resists an application by the defendant for summary judgment under CPR 24.2.

Dr Piepenbrock submits that the court has no power to grant anonymity to D9 because she is unable to rely upon Article 8 ECHR as she resides outside of the ECHR’s jurisdiction. Accordingly, it is important to recognise that the court’s powers to grant anonymity are not confined to those that arise from the ECHR.

As Lord Reed JSC explained at para 27 in A v British Broadcasting Corporation [2014] UKSC 25, [2015] AC 588 (“A v BBC”), the principle of open justice is a constitutional principle found in the common law and the courts have an inherent jurisdiction to determine how the open justice principle should be applied pursuant to their common law powers.

The House of Lords in Scott v Scott [1912] AC 417 recognised that there are circumstances where it is necessary to depart from this principle of open justice. However, as Viscount Haldane LC emphasised (at pp 437 – 438):

“As the paramount object must always be to do justice, the general rule as to publicity… must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.”

One aspect of the court’s inherent power is the ability to permit the identity of a party or a witness to be withheld from public disclosure where this is necessary in the interests of justice. Lord Reed discussed this power and examples of its use at paras 38 – 40 in A v BBC, noting that: “The court can therefore take steps in current proceedings in order to ensure that the interests of justice will not be defeated in the future”. His summary of the common law position at para 41 included the following:

“…I agree…that it would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about her where there was no public interest in its being publicised. Whether a departure from the principle of open justice was justified in any particular case would depend on the facts of the case. As Lord Toulson JSC observed in Kennedy v Information Comr (Secretary of State for Justice intervening) [2015] AC 455, 525, para 113, the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.”

Having analysed the court’s inherent powers at common law, Lord Reed went on to discuss the impact of ECHR standards. In relation to the Article 6.1 requirement for there to be a public hearing of the determination of a person’s civil rights and obligations, Lord Reed observed that the qualifications broadly reflected the various exceptions to the open justice principle in domestic law (para 44). Between paras 46 – 54 he discussed the protection afforded by Article 8 in respect of private life and the Article 10 right to freedom of expression.

Having considered both the common law and the ECHR, Lord Reed rejected the submission that where the ECHR was engaged, the court’s power to allow a party not to disclose their identity was to be found in these rights rather than in the common law (para 55 – 57). He concluded that: “the starting point in this context is the domestic principle of open justice, with its qualifications under both common law and statute” (para 57).

The common law principles discussed by Lord Reed are reflected in CPR 39.2(4), which provides that:

“The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person.”

As Dingemans LJ explained at para 19 in XXX v Camden London Borough Council [2020] EWCA Civ 1468, [2020] 4 WLR 165 (“Camden”)

“CPR r 39.4 recognises that orders for anonymity of parties and witnesses may be made. The common law has long recognised a duty of fairness towards parties and persons called to give evidence, see In re Officer L [2007] UKHL 36: [2007] 1 WLR 2135, and balanced that against the public interest in open justice cases. Under the common law test subjective fears, even if not based on facts, can be taken into account and balanced against the principle of open justice. This is particularly so if the fears have adverse impacts on health, see In re Officer L at para 22 and Adebolajo v Ministry of Justice [2017] EWHC 3568 (QB) at [30].”

In R v Legal Aid Board Ex p. Kaim Todner [1990] QB 966, L. Woolf MR made a number of observations about the general approach to be adopted to applications for anonymity, including that: interference for a limited period is less objectionable than a permanent restriction (point 6 at 978B); a distinction may be made between the person who initiates proceedings, as having accepted the normal incidences of the public nature of court proceedings and a defendant who has not chosen to do so (point 8 at 978E); and, in general, parties have to accept the embarrassment and damage to their reputation which can be inherent in litigation (point 8, 978F).

When Article 8 and Articles 10 rights are both in play, the court is required to undertake a balancing exercise, as identified by Lord Steyn at para 17 in In re S (A Child) [2004] UKHL 47, [2005] 1 AC 593:

“First, neither article has as such precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally the proportionality test must be applied to each…”

When the court considers an application for anonymity pursuant to CPR 39.2(4), a balancing exercise must be carried out of the relevant interests in order to “determine whether ‘non-disclosure is necessary to secure the proper administration of justice and in order to protect the interests of that party or witness’” per Dingemans LJ at para 24 in Camden.

It is recognised that the power conferred by CPR 39.2(4) goes beyond the anonymising of court orders and judgments and includes the power to make orders restraining others from disclosing the identity of the relevant party or witness: Re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 WLR 325 per Lord Rodger at para 30.

A specific statutory power to prohibit publication is found in section 11 CCA 1981. It provides:

“In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld.”

Lord Reed explained the way that section 11 operated at para 59 in A v BBC:

“…section 11 does not itself confer any power on courts to allow ‘a name or other matter to be withheld from the public in proceedings before the court’, but it applies in circumstances where such a power has been exercised. The purpose of section 11 is to support the exercise of such a power by giving the court a statutory power to give ancillary directions prohibiting the publication, in connection with the proceedings, of the name or matter which has been withheld from the public in the proceedings themselves…The directions which the court is permitted to give are such as appear to it to be necessary for the purpose for which the name or matter was withheld.”

Dr Piepenbrock points out that it is only in a handful of cases that the courts have granted lifelong anonymity to those who committed murder when a child. He says that this shows how restrictive the jurisdiction is and that it is wrong in principle for D9 to seek what is, in effect, a lifelong anonymity in respect of his allegations. A recent discussion of the principles applied in those sorts of cases appears at para 61 in D v Persons Unknown [2021] EWHC 157 (QB). I do not accept that any meaningful analogy can be drawn between D9’s position and that of a person who seeks to avoid disclosure of their identity because they have been convicted of committing murder; the considerations involved are very different.

In Millicom Services UK Ltd v Clifford [2022] EAT 74 (“Millicom”) Eady J (President) considered the territorial scope of the ECHR in relation to the respondents’ application to withhold public disclosure of certain information. The factual context was very different to the present case. The application, which relied on Articles 3, 5, 6 and 8 ECHR as well as the common law, was made on the basis of the alleged risks to the physical safety of some of the first respondent’s employees if the non-disclosure order was not made. The employees were neither parties nor witnesses to the proceedings and were based in a country that was not an ECHR signatory state. The relevant power for the ET is rule 50 of the Employment Tribunal Rules of Procedure 2013 (rather than CPR 39.2(4)). Nonetheless, the EAT’s analysis of the ECHR provisions is of valuable assistance.

Article 1 ECHR provides that: “The high contracting parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section I of this Convention”. As Eady J observed at para 46:

“This is generally understood as meaning that rights under the ECHR are limited to the territories of the contracting states, with only exceptional circumstances capable of giving rise to the exercise of jurisdiction by a contracting state outside its own territorial boundaries: Al-Skeini v United Kingdom (2011) 53 EHRR 18 at paras 131 – 132, Smith v Ministry of Defence [2014] AC 52 at paras 42 – 55.”

Accordingly, she held that the ET was correct in its understanding that rights under the ECHR were (save in exceptional circumstances that had no application) limited to the territories of the contracting states (paras 81 – 82).

Mrs Justice Eady also rejected an alternative argument that the ET had failed to comply with its own duty imposed by section 6 HRA to act compatibly with the ECHR, including in relation to the right to a fair trial guaranteed by Article 6 (paras 83 - 84). She observed at para 83 that:

“The difficulty with this argument, as the claimant has observed, is that section 6 HRA imposes a duty upon the tribunal; it does not afford it additional powers to those provided under rule 50. Moreover, the duty under section 6 applies to rights under the ECHR: to the extent that the protection is sought in respect of individuals outside the territory of the ECHR, the duty is simply not engaged. Similarly, to the extent that rule 50(1) provides the tribunal with the power to make an order for the protection of the ECHR rights of any person, it thus provides a power to protect rights conferred under the ECHR, it does not serve to extend such rights to those who otherwise fall outside its ambit.” (Emphasis in original text.)

However, this did not mean that the risk to those based in the non ECHR signatory country were irrelevant to the order sought. Under the terms of rule 50, the tribunal has the power to derogate from the open justice principle not only to protect ECHR rights, but where it considers it necessary “in the interests of justice”. Mrs Justice Eady J held that consideration of what was necessary for the administration of justice in that case could include the fact that evidence could not be given freely in the absence of the non-disclosure order sought, given the fears over the safety of those located in the non ECHR signatory country (para 85). She commented at para 86:

“Not only is this approach consistent with how the interests of justice are thus protected at common law, it can be seen to be a necessary consequence of the employment tribunal’s duty under section 6 HRA not to act incompatibly with the rights to a fair trial provided by article 6 ECHR. In that respect, the ECHR and domestic law ‘walk in step’ (to adopt the language of Lord Reed JSC at para 57 of [A v BBC]…).”

CPR 5.4C governs the supply of documents from the court’s records to a non-party. The general position is that a non-party may obtain a judgment or order given in public and a statement of case, but not any documents attached to the statement of case or filed with it: CPR 5.4C(1). Other documents may only be obtained from the court’s files with the court’s permission: CPR 5.4C(3). However, the court may, on the application of a party, order that a non-party may not obtain a copy of a statement of case or that non-parties may only obtain a copy of a statement of case if it is edited in accordance with the directions of the court: CPR 5.4C(4).

It is clear that the Claim Form has not been properly served on D9 thus far. Neither posting it to her in the US nor emailing it to a solicitor who was not instructed to act for her at the time (paras 10 – 11 above) are permissible methods of service under CPR 6.40 (para 63 above). Furthermore, the Claimant did not have permission to serve out of the jurisdiction and nor did he comply with CPR 6.34(1) (para 68 above), in so far as he contends that permission was not required.

The Claim Form was issued on 7 October 2021 and thus it is no longer valid against D9 unless an extension of time is granted. I will consider whether permission to serve the Claim Form is required and, if so, whether it should be given, before returning to the question of whether an extension should be granted.

No notice has been served by the Claimant indicating the grounds he relies upon for asserting that permission to serve out is not needed, as required by CPR 6.34(1) (para 68 above). The specific contentions that he now relies upon were first raised in the skeleton argument filed for the purposes of this hearing. Nonetheless, I will address the merits of Dr Piepenbrock’s contention. As I have earlier indicated, he seeks to rely on CPR 6.33(2), 6.33(2B) and/or 6.33(3) (para 64 above). I will consider these grounds in turn.

In terms of employment related rather than consumer claims, CPR 6.33(2) applies where the claim is within sections 15A - 15E of the 1982 Act and the defendant is sued as an employer pursuant to a contract of employment. I have summarised the scope of sections 15A – 15E at para 65 above. It is plain that the current claim does not come within the ambit of these provisions. Furthermore D9 is not sued as Dr Piepenbrock’s employer (it is not suggested that she ever was his employer) and nor is she sued for breach of an employment contract. Mr Piepenbrock submitted that the provision applied as D9 was the agent / representative of the LSE for whom the LSE is vicariously liable. This argument is unsustainable. Firstly, even if there was merit in the vicarious liability point, it does not remove the twin difficulties that the claims against D9 are not for breaches of the employment contract between the Claimant and the LSE and nor could they come within sections 15A – 15E. Secondly, the claim against D9, as I have summarised earlier, is based on her personal (alleged) actions, rather than on acts that it is said she was undertaking as the LSE’s representative. Thirdly, I have found at para 193 of the September 2022 Judgment that the proposition that the LSE was vicariously liable for her alleged acts of harassment was bound to fail and should be struck out.

CPR 6.33(2B) may apply where a contract contains a term to the effect that the court shall have jurisdiction to determine the claim (para 64 above). The Claimant accepted that he did not have a contract with D9, but Mr Piepenbrock submitted that his father’s contract with the LSE contained a term to this effect. I have already noted that the claims against D9 concern alleged actions that she undertook in a personal capacity and that I struck out the vicarious liability claim against the LSE as bound to fail. Furthermore, the usual starting point is that a jurisdiction clause will only bind the parties to that contract (para 66 above). The Claimant has not produced the contract with the LSE in this instance, nor indicated the wording of the clause in question and thus he has provided no basis for displacing the usual starting point. In any event it is extremely unlikely that the clause would be interpreted as covering a claim for alleged harassment by a non-party to the contract undertaken, even on the Claimant’s pleading, in a personal capacity rather than on behalf of the LSE and in relation to which the LSE is not vicariously liable.

I have explained why CPR 6.33(3) is limited to circumstances where by virtue of an enactment the court has power to determine the claim in question notwithstanding that neither the defendant nor the relevant conduct were within the jurisdiction. That is not the case here. As I have already explained the central claim against D9 is under the PHA 1997. There is nothing in that statute which confers such a power on the court. Indeed there is an indicator to the contrary in so far as section 14 confines the reach of the PHA 1997 to acts that have taken place in England and Wales, as explained at para 192 of the September 2022 Judgment and para 225 of the 2018 Judgment. The only other enactment that is relied upon in terms of the causes of action pleaded against D9 is the EA 2010 (para 60 above). There is nothing in this statute that I can see that assists the Claimant in this respect and no specific provision was identified by him.

Accordingly, I conclude that permission to serve out of the jurisdiction is required in this instance. The procedural requirements for seeking the court’s permission contained in CPR 6.37(1) (para 69 above) have not been complied with. Dr Piepenbrock did not identify the PD 6 para 3.1 gateway/s that he relied upon until I raised this with him during the hearing itself. In this regard I note that the need to obtain the court’s permission had been flagged by Nicklin J as long ago as the April 2022 Anonymity Order (para 16 above). In any event, it is unnecessary for me to resolve whether I would have refused permission on that basis alone, since it is in any event clear that the substantive requirements for granting permission are not met in this instance.

I have set out the applicable criteria at para 72 above. Firstly, the applicant must show a good arguable case that the circumstances fall within one or more of the PD 6B para 6.1 gateways. Dr Piepenbrock relied upon three of the gateways (para 70 above). I will consider these in turn.

Paragraph 3.1(3) cannot apply to this situation. It requires that a claim has been served or will be served on another defendant other than in reliance on this paragraph, and that the person in question (D9 in this instance) is “a necessary and proper party to that claim”. Whilst the proceedings were properly served on the LSE Defendants and the ANL Defendants, the claims against them have been struck out, save for a DPA 2018 claim relating to certain SARs. D9 is not “a necessary or proper party” to the DPA 2018 claim; there are no allegations made against her in the data protection part of the Particulars of Claim.

Paragraph 21 is equally unpromising from the Claimant’s point of view. There is no cause of action in breach of confidence or misuse of private information in the lengthy Particulars of Claim.

Accordingly, the only conceivable gateway that could apply is para 9, which is relied upon on the basis that the claim is made in tort and the Claimant has sustained “damage” within the jurisdiction. I summarised Dr Piepenbrock’s case as to the damage he has suffered at paras 114 – 118 of the September 2022 Judgment. At para 163(v) of that judgment I noted the absence of supporting medical report(s) and the difficulties that it appeared he faced in terms of obtaining such medical evidence. That remains the position. However, it is unclear whether distress, which can potentially lead to an award of damages under the PHA 1997 (without psychiatric injury having to be proved), amounts to “damage” for the purposes of para 9. In the event, it is unnecessary for me to resolve this point because to grant permission I must also be satisfied that there is a serious issue to be tried on the merits of the claim (paras 72 and 74 above) and I do not consider that any of the Claimant’s pleaded claims against D9 give rise to a serious issue to be tried. They are all bound to fail.

As regards the five allegations made under the PHA 1997 (para 58 above):

The EQA 2010 claim against D9 concerns the 2012 events (para 60 above). As such, it is statute barred and precluded by issue estoppel, as I have already explained in relation to the PHA 1997 claim. There is also the additional, free-standing fundamental difficulty for the Claimant that he cannot bring his pleaded claims within Part 3 of the EQA 2010, as I explained at paras 202 – 208 of the September 2022 Judgment.

There is no other cause of action brought against D9. The duty of care that was allegedly owed in negligence is not said to include her (para 55 above). Although passages have been transplanted from the 2020 Claim for defamation, no pleaded claim in defamation is made in the present proceedings (and it would be statute barred if Dr Piepenbrock attempted to include such a claim). Accordingly, paras 566 – 567 of the Particulars of Claim (para 57 above) do not articulate a cause of action against D9. Additionally, the only matters relied upon in that context are the 2012 allegations, which are statute barred and precluded by issue estoppel as I have just explained in relation to the PHA 1997.

Accordingly, the Claimant is unable to satisfy the applicable tests for obtaining permission to serve out of the jurisdiction because none of his claims against D9 give rise to a serious issue to be tried and they are bound to fail. In the circumstances I have not gone on to address the third requirement (para 72 above).

In these circumstances there is no basis for granting an extension of time to serve the Claim Form. Whilst Dr Piepenbrock asks that the court takes account of his disability (para 38 above), at most this might assist him with his failure to comply with the formalities of making an application to serve out, it does not alter the fact that the claims are bound to fail for the reasons I have identified.

It therefore follows that the Claim Form has not been validly served on D9 and the court has no jurisdiction to determine the claims pleaded against her. A declaration will be made to that effect.

I am asked to certify that the claim made against D9 and the application to extend time for service of the Claim Form are totally without merit. I discussed the applicable test at paras 236 – 238 of the September 2022 Judgment. As I did then, I will proceed on the basis most favourable to the Claimant, namely that I should only conclude that the totally without merit threshold is met if I regard the claim and/or application to be hopeless.

I do conclude that the claims pleaded against D9 are hopeless. I have explained why they are bound to fail. None of those points involve nuance or an evaluative assessment; the position is clear-cut; and, as I have explained, in most instances there are at least two free-standing reasons why the cause of action is clearly bound to fail. I bear in mind that I did not certify the PHA 1997 claim against the LSE Defendants and the ANL Defendants as being totally without merit when I struck it out, in contrast to my certification of the claims in negligence and under the EQA 2018 and HRA 1998 (paras 238 – 239, September 2022 Judgment). This was because some of the PHA 1997 claims against those Defendants involved a degree of evaluative assessment, in particular in relation to the allegations against D6 that had not been brought previously and the alleged harassment by publication. The same cannot be said of the claims pleaded against D9. Furthermore in relation to D9 the Claimant has to meet the additional hurdle of obtaining permission to serve out of the jurisdiction, which he is unable to do. In the circumstances, I will treat the claims against D9 and the application for an extension of time as part and parcel of the same totally without merit certification.

I will address some specific contentions raised by the Claimant, before turning to the assessment that I must undertake.

Mr Piepenbrock argued that it was wrong in principle to grant anonymity to D9 for the purposes of these proceedings and make a restricted reporting order in relation to her identity. This submission is misconceived. In many instances the objective of an anonymity order would be completely undermined if the party’s identity could in any event be reported in relation to the allegations. The courts have recognised that the power under CPR 39.2(4) extends to restraining disclosure of a person’s identity (para 86 above) and in any event section 11 CCA 1981 expressly permits a reporting restriction to be made where a person’s name or other matter has been withheld from the public in the proceedings (paras 87 – 88 above). It is commonplace for courts to make orders that both grant anonymity and restrict reporting of the identity of the person in question. Mr Piepenbrock sought to derive support for this submission from a passage at para 24 of an ET decision, AB v The Commissioner of Police of the Metropolis Case No. 3303742/2019, where Employment Judge Bedeau discussed the ET’s powers in relation to anonymity orders and restricted reporting orders. However, the Judge did not suggest that the two were mutually exclusive and in fact both an anonymity and a restricted reporting order were granted in that case.

Mr Piepenbrock reminded me that anonymity should not be granted simply to spare a party from the embarrassment or humiliation that is inherent in litigation. I agree that this is the position, as I have set out at para 83 above. However, D9’s application does not rest upon the ordinary consequences of litigation, she contends that she has been on the receiving end of a far-reaching malicious and sustained campaign by the Claimant to seriously damage her reputation and that he has misused litigation as one of the means of achieving this (paras 28 - 32 above). I return to this contention when I weigh up the merits of maintaining the current anonymity order. However, it is quite clear that her application for anonymity is not simply based upon the upset and embarrassment that it is to be expected as part and parcel of the ordinary incidences of court proceedings.

The Claimant submitted that D9 should not attract the protection of the court as she was “the architect of her own downfall” in choosing to circulate what he says was a false and malicious complaint about the Claimant to others at the LSE. Again the 2018 Judgment is referred to in inaccurate terms to suggest that it supports this proposition (para 41 above). The judgment did not “condemn” D9 for circulating her complaint; Nicola Davies J found at paras 229 – 230 of her judgment that the complaint was a legitimate one that was not made maliciously and that whilst D9 should not have disseminated her complaint, no one at the LSE had told her this and she stopped when they did so (para 26 (iii)(f) above). In the circumstances I do not consider that this feature carries any significant weight in the balancing exercise that I have to conduct. HHJ Shanks was of a similar view, as he indicated at para 30 of the August 2022 EAT Judgment.

Mr Piepenbrock objected to D9 seeking anonymity without a temporal limit being placed upon the court’s order. He submitted that the anonymity orders that were made in the earlier proceedings had been limited in time and that any other interpretation involved a misreading of their terms. I do not accept this point. There is nothing in the 2018 Anonymity Order or the 2020 Anonymity Order which indicates that anonymity for D9 was granted for a limited period only. Furthermore, an indefinite order protecting D9’s anonymity was expressly made by HHJ Shanks in August 2022 (para 46 above). In terms of Mr Piepenbrock’s related point, I have already addressed the reliance on the restricted circumstances in which life-long anonymity is granted to children who are convicted of murder (para 89).

Mr Piepenbrock also submitted that in any event the court had no power to make an anonymity order that was unlimited in time. He relied upon an observation of Underhill J (President) (as he then was) at para 17 in F v G [2012] ICR 246 as supporting this proposition. However, in that case the EAT in fact upheld a permanent anonymity order that had been granted by the ET. In para 17 Underhill J was referring to the power to make restricted reporting orders that was then contained in rule 50 of the Employment Tribunal Rules of Procedure 2004, which provided that such an order remained in force until liability and remedy was determined (rule 50(8)). No equivalent temporal limitation applies to the current power to make a restricted reporting order pursuant to rule 50 of the Employment Tribunal Rules of Procedure 2013 and in any event those rules do not apply to High Court proceedings. The power conferred in CPR 39.2(4) does not limit the period for which anonymity can be granted and orders are regularly made by the court that do not contain any temporal limitation.

Accordingly, whilst the length of time for which the order will apply is something for the court to weigh in the balance (para 83 above), it is not wrong in principle or inherently objectionable for anonymity to be sought for an unlimited period.

The Claimant contends that D9 is unable to rely upon Article 8 ECHR because she resides in the US and thus is outside of the territorial jurisdiction of the Convention. In turn, he says that this means the court has no power to grant her application for anonymity.

It appears unlikely that D9 can rely upon Article 8 for the reasons identified by Eady J in Millicom (paras 90 – 93 above), albeit I did not have the benefit of detailed submissions on this point from Mr Piper. Furthermore, it may be arguable that this court is under a duty, pursuant to section 6 HRA 1998 and Article 6 ECHR, to ensure fairness as between the parties in relation to the hearing and determination of these proceedings, which, of course, takes place within the reach of the Convention.

Be that as it may, in any event, as I have explained at paras 76 – 81 above, the court has an inherent common law power to grant anonymity to a party to proceedings, which is, in turn, reflected in CPR 39.2(4). I will therefore proceed on the basis of these powers. Whilst open justice is a fundamental common law principle, the courts have recognised that in certain circumstances the interests of justice will necessitate a departure from this (paras 77 - 78 above). The circumstances where this can arise are not closed; the court will be concerned to ensure that the interests of justice are not defeated, that an effective judicial process and fairness is maintained and that the legitimate interests of others are given appropriate protection (para 78 above). As Lord Reed explained in a passage from A v BBC that I have already cited, where it is said that a departure from open justice is required, the court must undertake a fact-specific assessment, weighing the competing considerations (para 78 above).

I note that this approach is analogous to the jurisdictional basis identified by HHJ Shanks at paras 26 and 33 of the August 2022 EAT Judgment, where he said that as Dr Piepenbrock was, in effect, threatening to abuse the justice system and act contrary to the interests of justice, this provided a basis independent of the ECHR and HRA 1998 for making the anonymity order sought. Whilst rule 50 of the Employment Tribunal Rules of Procedure 2013 expressly permits an anonymity order to be made on the basis of the “interests of justice” (para 94 above); that power is broadly analogous to the High Court’s common law powers to act in the interests of justice that I have already described. As I explained earlier, Millicom is a further example of the interests of justice enabling consideration of matters that fell outside of the ECHR (para 94 above).

For the avoidance of doubt, I proceed on the basis that the 2018 Judgment gives rise to an issue estoppel that precludes Dr Piepenbrock from asserting in these proceedings that D9’s 2012 complaint to the LSE about his behaviour was false and malicious (para 26(iii)(f) above). I also proceed on the basis that the 2018 Judgment did not find that D9 exposed herself to the Claimant on 12 November 2012 (paras 26(iv) and 40 above) and that the ET has more recently found that his allegation to that effect is false (para 34 above). The ET’s conclusion in this respect also gives rise to an issue estoppel (para 107(i) above). However, even if that were not the case, the fact remains that Dr Piepenbrock’s account of D9‘s conduct in Boston in November 2012 was roundly disbelieved by the ET. Accordingly, there is no support for the Claimant’s starting point for his objection to the grant of anonymity to D9, namely that he is the victim of a “sex crime” perpetrated by D9 (as he asserted in his supporting witness statement (para 40 above) and in the written and oral submissions made on his behalf (para 42 above).

To the contrary, and in common with conclusions reached by both the ET and HHJ Shanks in the August 2022 EAT Judgment (paras 35 - 36 and 47 - 48 above), it appears to me that Dr Piepenbrock has engaged in an obsessive, disproportionate and unrelenting campaign to vilify D9 and to damage her career and personal relationships and that he has persisted in this regardless of the unsuccessful outcome of his earlier litigation. I have already referred to the statement that D9 made for the ET proceedings (paras 27 – 32 above). In summary, the Claimant’s actions have included: setting up a website to demean and insult D9; drawing this website to the attention of her employers under guise of a professed concern that they would “want to know” in a letter that also falsely indicated that the High Court had found that she had sexually harassed and exposed herself; sending the Particulars of Claim in the 2020 Claim to her work address and to her parents’ address when she was not even a party to that claim; and tweeting false information about D9 (in particular, the 2018 Judgment did not find that she had lied).

The Claimant’s deep antipathy towards D9 appears to be as strong as ever. During Mr Piepenbrock’s reply to Mr Piper’s submissions, Dr Piepenbrock interjected with the following speech:

“[D9] is a dangerous woman…She has not apologised. She has not admitted it. People need to know, she is a danger to society. She will proposition for sex and when rejected she will cause career ending damage in retribution…She is mentally ill. She could ruin another family’s life. It is not good enough for her to say that she made mistakes. She is a disgusting woman. Employers need to know that she is a dangerous woman and that she will cost them millions.”

As I have already made clear, there is nothing in any of the findings made by the High Court, the ET or the EAT that could begin to warrant these hyperbolic statements and this kind of vilification and hostility. They confirm not only the Claimant’s obsessive preoccupation with D9, but they make clear beyond any doubt that if the current anonymity order were lifted, Dr Piepenbrock would publicise D9’s identity as widely as he could in relation to the meritless allegations that he has made about her in these proceedings. A similar conclusion was reached by HHJ Shanks in the August 2022 EAT Judgment (para 47 above).

Moreover, there is a clear pattern of Dr Piepenbrock attempting to misuse litigation to vilify and oppress D9 and to further his agenda in relation to her. The current case is now the fourth proceedings in which he has made allegations about her conduct in November – December 2012. Allegations are recycled, irrespective of their age and the fact that they have already been rejected in earlier proceedings. By way of example, the very lengthy Particulars of Claim in these proceedings asserts on multiple occasions that D9 made “false and malicious allegations” against Dr Piepenbrock (paras 53, 56(ii) and 57 above) even though the 2018 Judgment had clearly rejected this allegation. Furthermore, the purpose of a pleading is subverted by the inclusion of irrelevant personal photographs of D9 and gratuitously insulting remarks about her (para 53 above). Throughout the lengthy Particulars of Claim D9’s alleged conduct is described in unduly heightened terms such as “the unstable and vengeful stalker”, which are unwarranted even on the basis of the actions that the Claimant pleads occurred in 2012.

In addition and of particular concern, the Claimant has sought to bolster his contentions about D9’s behaviour by using the earlier 2018 Judgment in a misleading way. In the Particulars of Claim he repeatedly sets out a distorted and inaccurate version of what was found in that judgment, including by using partial quotes that do not in fact reflect the court’s conclusions. There are multiple instances of this. I have listed examples at paras 51, 54, 56 (iii), (v), (vi), (vii), (viii), (x) and 57 above. In a similar vein, the Claimant quotes inaccurately from the 2018 Judgment in the statement that he made in support of the Set-Aside Application, as I have described at para 40 above. All this is done to such a degree that it is highly unlikely to be the product of innocent error or genuine misunderstanding. In addition, the Claimant has used his distorted version of the findings of the 2018 Judgment to further his campaign against D9 on the website, on social media and in his communication with D9’s employers (paras 28 and 31 - 32 above).

In the circumstances I have no doubt that the Claimant has tried to abuse the justice system and that he will seek to continue to do so in a similar way in the future. His activities in this regard would increase very substantially if he were permitted to name D9 in relation to the allegations that he makes in these proceedings.

A further important consideration in terms of the interests of justice, is that the court should not take a course that would undermine the orders that have already been made to protect D9’s identity in 2018, 2020 and August 2022 (paras 43 – 49 above). These orders remain in force and have not been successfully appealed. They concern proceedings where similar allegations to those pleaded in the current claim were made about D9’s conduct. Accordingly, setting-aside the April 2022 Anonymity Order would substantially and directly undermine those earlier orders, when no good reason has been identified for doing so. The anonymity order made by Nicklin J in the present proceedings is consistent with and reinforces the approach that has already been taken in those earlier proceedings. And, if anything, the Claimant’s position is now that much weaker following the damning findings made by the ET in June 2022, which involved a wholesale rejection of the allegations that Dr Piepenbrock relies upon in these proceedings against D9. Furthermore, I note that HHJ Shanks’ order was granted as recently as August 2022 after a detailed hearing on the question of whether D9 should be granted anonymity.

Accordingly, in light of all of these circumstances, I am satisfied that there is a very strong basis for concluding that the grant of anonymity to D9 is a necessary step to take in the interests of justice and in fairness to her as a party to the proceedings. This assessment is further reinforced by: my conclusion that the claims made in these proceedings against D9 are bound to fail and are totally without merit; the length of time for which the Claimant’s oppressive actions have already persisted; and the impact that they have had upon D9. As regards the latter, in her witness statement she referred to the consequential emotional upset, anxiety and trauma that she has experienced, and I have no reason to doubt this. She also explained that the traumatic impact of Dr Piepenbrock’s behaviour towards her led her to decide not to appear as a witness in the ET proceedings (para 29 above).

In balancing the relevant factors, I have taken into account that the onus lies on D9, the fundamental importance of the open justice principle and the fact that anonymity is sought on a long-term basis. However, the judgments given in this and in the earlier proceedings are publicly available and are perfectly intelligible without the naming of D9. The April 2022 Anonymity Order has been in place since 27 April 2022 and it has not been opposed or challenged by any media organisation. Although the order is not limited in time; it would be open to the Claimant or to third parties to make an application to vary or revoke the order if there were to be a future material (and I stress material) change of circumstances. Moreover, in this particular instance, there are very strong features that outweigh the importance of open justice, as I have identified.

In all the circumstances I am quite satisfied that it is necessary in the interests of justice for D9’s anonymity to be preserved, for there to be no publication in connection with these proceedings of her identity or of any matter likely to lead to her identification and for non-parties’ access to the Court file to be restricted. Accordingly, I will dismiss the Set-Aside Application and the April 2022 Anonymity Order will be continued.

For the reasons that I have set out above:

As the Claimant is not legally represented, I have not circulated a draft of this decision for typographical corrections to be identified. However, as I indicated at the conclusion of the hearing, I will give the parties an opportunity to make concise written submissions as to the terms of the order that I should grant to reflect this judgment and in relation to any consequential matters such as costs.