Stephanie Hayden is still at it

Conman/thug Stephanie Hayden is still using the law to harass people, and still not paying the money he owes for lost cases

NOTE FROM GRAHAM: Short version: another Hayden failure. This gets into a lot of legal detail which will tough for most to parse but I’m posting it here in case it’s useful for any legal eagles who, like my solicitor, are pursuing Hayden to pay costs for the harassment campaigns he regularly launches through the courts.

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Court Report: High Court hearing in front of Judge Nicklin on 24 May 2022 concerning an application by Stephanie Hayden to order HMCTS to disclose the identity of someone who received a copy of a judgement debtor order relating to the costs payable by Stephanie Hayden in the case of Hayden  v Associated Newspapers Limited.

Judge Nicklin (JN)
Stephanie Hayden (SH) representing self
Counsel for HM Courts & Tribunals Service C1
Party X (X) – An individual who paid to receive a court document about SH debts.
X also wrote a letter to the court in relation to this hearing about sharing a copy of the debtor order.
Associated Newspapers Limited  (ANL)
HM Courts & Tribunals Service (HMCTS) - issues copies of courts documentsPerson (P) - the person alleged to have harassed SH on the KiwiFarms website 

Stephanie Hayden sued Associated Newspapers Limited for libel based on a Daily Mail article on the arrest of a woman who was arrested following complaints by SH on tweets. The woman was convicted and later cleared on appeal.  SH lost the libel case in March 2020. ANL was granted costs of  £28,747.95 which have not been settled.

The court issued a judgement debtor order for SH to attend the court for questioning and to disclose information on their means and financial circumstances. The hearing did not take place on 31 March. There is no new date scheduled.

The claimant alleges that they’ve been harassed by a person (P) on KiwiFarms who posted a copy of the order. SH has applied to the court and HMCTS to disclose the identity of Person X who was sent a copy of the order so SG can pursue enquiries and identify P, and take action. SH said they lived in fear and that this was a matter of public interest, safeguarding and Article 6* rights.

Judge Nicklin asked if SH had considered redress by making a complaint to the police as they could get the information from HMCTS and then interview Person X.

SH responded that their wish was “ to pursue remedies not only in the criminal jurisdiction but in the civil one.” SH considered  “the likelihood of a police investigation going to CPS under current resource constraint” was low and they didn’t believe they’d “get a prosecution”. SH “adopt[s] a twin strategy of invoking criminal and civil jurisdiction – much faster and much more satisfactory”. SH would seek an interim injunction and disclosure from X.

Judge Nicklin notes that  Person X had posted the order in a whatsapp group, so 50 people may have seen the order. SH would have to pursue the ISP and still may get no information on the identity of P.

SH said “It may be that X comes along with evidence it’s not them, then I’m in difficulty but it’s for X to evidence that. This order required someone to spend money, might only be £11 but it will take a rather motivated individual to get the order and distribute it innocently.

That type of person is an interested person or in this case with someone with an axe to grind but generally you don’t spend money for kudos in a whatsapp group. Let’s say it’s put in a group of shall we say, radical feminists and one of them goes and posts it. Let’s say the name is familiar. I elect that person can advance their defence. Then standard disclosure comes into play.”

The Counsel for HMCTS (C1) said a “blanket disclosure provision” would be highly “problematic as a data controller” and there should be safeguards. The key question is if the information is a court record and if it is, there must be an assessment as to whether it’s appropriate to disclose it.

The judge and C1 discussed the case law. If the information is not part of a court record then practice directions 5.4B(2) won’t apply. He ordered a short witness statement on the operation of CE filing [HMCTS’s electronic filing and case management system].  “It’s important we have distinction between primary court records and other documents that the court service has but that are not available on CE filing. Because if that is a distinction for 5.4(B) and (C) then important it’s properly evidenced.”

C1 had thought “the publication[of the order] itself was alleged as harassment rather than wanting as a means of identification. Now I have heard SH’s submission, I refer you to the Vodafone case which was to confirm where people worked. HMCTS position is similar to Vodafone.”

Judge Nicklin said  HMCTS is not caught up in wrongdoing to justify a Norwich Pharmacal Order (NPO). Judgment reserved.
Contemporaneous notes of the hearing

Note: This reports what we heard. This notes were taken live,  not written up later, and is not a full transcription of the hearing. 

SH: This is an application for disclosure regarding identity. Not one part of application is pursuing payment information. 

JN:  First stage is to determine if there is jurisdiction, if I could make the order. If so I require X to file any evidence.  Pending decision, court will redact copy of witness statement until such time as identity provided. 

There are a number of routes to jurisdiction.

[JN refers to CPR 5.4B which he says is one route that would imply that where there is communication between X and the Court, SH should be given the information. Judge also infers some other possible routes that could imply jurisdiction]

[SH thanks the government legal department (GLD) for assistance ].

SH: I understand GLD and courts don’t want to be involved in things like this.
[SH also thanks C1.]

[JN echoes the thanks]

SH: Have you read my skeleton?

JN: Yes. I’ve sent a list of further authorities I might want to refer to today - do you have?

SH: Yes.

JN: if you need more time at any stage let me know. I can show you the points I am interested in.

SH: With respect to jurisdiction, it plainly exists.
[SH explains there are examples in a lower court e.g. a case involving SH. SH refers to an order in Leeds from 3 years ago under deputy district Judge Flanagan.]

SH: Importance here is these are classes of documents a non-party can ask the court to provide as of right. The document here is an order of the court by Master Davison. Falls squarely under 5.4C

JN: It does, no doubt

SH: It gets referred to by a member of the judiciary and then Flanagan makes an order. That’s how I became aware of this party’s involvement. So I submit this is very important, a jurisdiction exists to name a party that wishes to have a document in 5.4C and shows that name can be made public

JN: Look at what was going on with the Flanagan order. My reading is the applicant had made a request by letter for copies of documents that fell within the group of documents. There is an absolute right to have subject to a court ordering they must be kept confidential.   Flanagan seems to have treated the letter as an application, permitted the statutory open documents but refused the balance. He could have directed a hearing, if so the application would then be filed and if it were me I would have done an order which named the respondent and then it would have been recorded. Would have the same effect but not the same as the application you are making.

When it comes to statutory open documents, whoever wants it doesn’t have to make an application. For other documents, an application means his/her identity will become known to parties in the litigation.

SH: Regarding 5.4B(2), a written request which is the traditional way, is by its very nature, a communication. Here it happened via the CE filing system but it’s another form of communication. I say the jurisdiction is established in 5.4B(2). Public interest must be a key factor in our considerations. I say the NPO gateway does not come into play. 

JN: I’ve reached that subject to what C1 has to say, I broadly think you are correct, 5.4B(2) is jurisdictional basis. What’s interesting is I don’t think anyone is going to find any authorities on the exercise. I have to decide what are the correct principles to adopt when considering exercising whether the court should give permission. Odd if the court had two different standards as to whether you are a party or a non-party.

The fact you are a party is rather incidental to the real purposes of you getting a copy of the order. You want it as you say it’s been posted on a website to harass you.  I could go and ask the court who was given the document. At the moment I think the circular principles that should underpin this should not get out of step with Norwich Pharmacal.

Why do you say the fact you are a litigant should give you a better claim?

SH: Look at para 8 of my skeleton. 5.4D(1)(b) appears to establish the same jurisdiction for a non-party?

JN: Quite right. It's actually 5.4C(2), a non-party may obtain docs

SH: If it’s agreed jurisdiction is 5.4B(2), I propose to address principles in this case.

This was a document obtained by an account posting on an American hate website. You are familiar with it and some of the accounts. I cite the post in my witness statement and also the number of times this account has posted.

JN: I’ve got the post which includes the order. Just sketch out what you say is the legal wrong in the post.

SH: If just one post from this account I would not be here but I say this account is engaged in ongoing harassment from September 2019 to now. 430 posts have been made. My original witness statement had the hyperlinks to the threads. 

In your judgement in 2020 in a case involving me, you identified that Kiwi Farms had targeted oppression aggravated by being a group activity albeit I didn’t win injunction against that person. But, if you accept a campaign of oppression then we cannot salami slice the individual post.

That poster was identified in that application and even then, 2 years ago, I was expressing concern about this in my application. 

A campaign of intimidation, abuse and harassment with homophobia and transphobia. It's benign what is on the order. It’s a cost order made against me 2 years ago that I have not paid and it’s for me to come and explain.  It's benign but the whole point about the Protection from Harassment 1997 Act is that individual acts may not be criminal but it’s the aggregation.

JN: So your case is that it would identify a person ‘notsojolly’ who is behind all this? 

SH: Put simply, yes.

They went too far and got too blasé, made a major mistake without stopping to think that I or anybody else might come back to the court and you have sold the order.

JN: Its not accurate to say court is selling orders – its an £11 fee to process access

SH: Point taken but it opened up a route to potentially trace one of these account operators. You will be aware that one of the recurring features of these cases is whilst we don’t know who they are we have our suspicions.

Quite rightly my application failed 2 years ago as the evidence was not there. But here we can open up a communication which establishes that at the very least X paid the £11 fee and got the order and we know that was then posted – that is conduct that plainly meets the 1997 Act in criminal and civil jurisdictions

JN: Questions about Kiwi Farms. Outline to me how you become aware of what is posted on there.

SH: I go back to the start in February 2019. Threads about me began. Defendant is ANL. I say Mail on Sunday posted a story about me and […] as a result of that and […] appears in the paper but also on the website and is also referenced by Donald Trump’s eldest son. Until that date, I had never heard of Kiwi Farms but it was brought to my attention. 

You could say ignore it and there is some force in that argument but when you are aware of the sheer amount of abuse and personally identifying information on me (relatives and addresses) it becomes a safety issue and it’s impossible to put from one’s mind what is going on. 

If you know there is a group of very focussed individuals documenting you, you become hyper-vigilant and you can’t 100% ignore it.

‘notsojolly’ account is fully aware that if they post, it might not come to me immediately but it would get to me at some point. I need to check for me and my family’s safety or someone else will bring it to me saying ‘oh my god have you seen this?’

JN: Are you telling me that happens?

SH: Yes. I’m not the only person targeted. For example, only a few days ago last Friday ‘therealnutterforyou’ account had an avatar of my female first cousin. To give that some context, although that is my first cousin, I’ve had no physical contact with her since December [1983?]. So, it takes some research to realise that and to then use that photo of a single mother as their avatar. That is to cause the intended target distress and alarm and most reasonable people would be alarmed and would take steps to warn their relative.

JN: I read through some of the thread. Have you posted on that thread yourself?

SH: No, I have not milord. The aggravations have increased since 12 May when X was made aware of the application and that they were known to the respondent and to the  GLD.

JN: Not in any guise?

SH: That’s correct and what’s more I will say that on oath and do a statement of truth.

JN: So, that’s the wrongdoing you have identified that you say justifies the order.

Let's now move on. Under NPOs, have you shown the HMCTS is caught up in the wrong doing?

SH: What is unusual about this application is the respondent but we need to be careful that just because it is the court service we don’t hold that organisation to some greater level of immunity. Twitter will get these all time. I got one three years ago against Mumsnet. They are providing a service to the public in this case, this is a service where a member of the public can get documents for an £11 fee.

I don’t say Mumsnet or twitter facilitate a wrongdoing, their sites just get used for it. The service has been abused here and the document was not obtained for a legitimate purpose.

JN: It’s important to recognise that the document is in the special category that is required to be open to the public unless the court restricts it for special reasons. It’s the principle of open justice. No one who sits in the gallery is required to explain who they are and why they are here. Not even required to give name and address save for the purpose of receiving the document. So, in the old days I think you could come in and look at the order with no name and address provided. Now we work remotely so facilitating access that way is no longer available but there’s an important distinction in that it facilitates access to the document required by the rules. What people do thereafter with those documents….  I’m not sure how you submit the court is involved in how they are used?

E.g. Tesco sells writing paper and pens, they can’t be caught up in wrongdoing if someone writes a letter. You can’t say Tesco is involved and must identify. If a person leaves a receipt from Tesco - can’t say Tesco is responsible in the same way HMCTS isn’t.

SH: One who uses a forum, those companies are not responsible….

JN: They are caught up because it’s *their* platform. 

SH: It's difficult. There is, as counsel identifies, a strong public interest and I accept that might send a signal to the public at large (although not so many as some might suggest) who may be put off from using court services facility. The principle of open justice, yes, but if my argument about court records is accepted, if you make an application that should become part of the court record and the same principles of access must be applied. 

Let’s be honest, 90 times out of 100 no one will be interested but where in this case X is themselves using that information as part of a campaign, I submit there is a strong public interest. In this case, you have used the CE filing system. You have used it as part of your campaign which if it can be shown criminal than the wider public interest is in the prevention of criminal offences. You can get round the issue you identify.

Your lordship comes with a certain familiarity with these events, there is a strong public interest to identify one of the individuals here going back to basics, the overriding objective of making sure court resources are used efficiently and proportionately.

JN: Your strongest argument is prima facie civil wrongdoing. In the public interest so you can vindicate your civil rights.

A point raised against you – one way you could seek redress is by making a complaint to the police.

The police have powers which would enable them to ask the court service for the information that you are seeking and they would then know who and potentially could go and interview that person, ask him/her about posting, whether they were the persons. Some of what X has said in the letter might feature. The police might get more avenues of enquiry. They then could decide if they met the test for prosecution. In that way, the public interest could be served and done in a way where police would not reveal identity to you as not relevant.  If it did become necessary they would let you know but that would be a policing decision. That’s the argument against you.

SH: Attractive argument. I rebut it like this. My wish is to pursue remedies not only in the criminal jurisdiction but in the civil one. You are right, police wouldn’t disclose however looking at the likely offence here (harassment) we have to bear in mind we are already 3 months on from when this document was obtained. I have been a victim of this issue.  I famously lost a case (or should I say the crown) the Crown against Scottow, where she was originally convicted at St Albans… that was overturned because the case was out of time and there had been some very imaginative definitions and stretching of the course of events… so I have been on the wrong end of time limits already.

So, if I make a complaint to the police today, the likelihood of that going to CPS under current resource constraints…. The Scottow decision took 9 months . I don’t believe I would get a prosecution. I fully intend to report it for a safeguarding reason. Does that mean there is going to be satisfaction of public interest and my rights by this way?

I live with the daily fear this individual will continue doing this. The court has not come down in my favour and the likelihood of prosecution is low. 

Further I have individual rights under Art 6 of ECHR to be vindicated and to invoke that in a civil court is a matter for me. Where I have identified persons I have adopted a twin strategy of invoking criminal and civil jurisdiction – much faster and much more satisfactory.

You lordship has found against me before but on other occasions it's been a very successful remedy. In terms of safeguards, any information that is disclosed can only be used for the purpose. I’m satisfied to be the subject of a penal notice that should that information get published e.g. on my Twitter it can be made clear that I’m not to do that.

JN: It’s a safeguard for a defined period. On the basis you intend to bring civil proceedings then there would be no restriction on you saying you are suing X – so its limited period.

SH: Yes however, the point I make is that I would be using the information for purpose I’ve been open about.

It might not follow if the identity of the person is unexpected but if it is a name that is not a great surprise to me then yes, highly likely I would seek an interim injunction and start proceedings. If proceedings are bought the respondent should be identified.

JN: Page 85 in authorities bundle, principles about whether innocent people may suffer e.g. involved in litigation where they have to defend themselves of involvement in something they have had no involvement in. We have had the letter from X but even without this I would have thought about what X says. Individual puts the order in a whatsapp group and then one of those people posts it. Let’s say there are 50 people in whatsapp group, arguably if that is the position that doesn’t give you the answer. X would need to reveal members of whatsapp group.

Sometimes information comes back as Mickey Mouse, Mouse Towers, Florida then you would need to get the ISP and then the target is the ISP. 

Here you may not get the answer you need. 

SH: It would be for X to show the transmission chain. No scenario in which  I'm going to seek an NPO for 50 people. I’ve not got the time nor the inclination. You know my view on this campaign, I would be shocked if the name was outside a very, very narrow group of people.  If it is, that would require further investigation by me.

At its highest, we have a letter, not even a witness statement or statement of truth. I submit that the overall weight of that argument should be somewhat minimal.

It may be that X comes along with evidence it’s not them, then I’m in difficulty but it’s for X to evidence that. This order required someone to spend money, might only be £11 but it will take a rather motivated individual to get the order and distribute it innocently.

That type of person is an interested person or in this case with someone with an axe to grind but generally you don’t spend money for kudos in a whatsapp group. Let’s say its put in a group of shall we say, radical feminists and one of them goes and posts it. Let’s say the name is familiar. I elect that person can advance their defence. Then standard disclosure comes into play.

JN: I don’t know where the truth lies regarding X. I have to test from both positions. 1. they are the person 2. they aren’t.  Does the court think it’s highly likely or is it evenly balanced … then an innocent party is dragged into it.  Today I will not take into account the letter as having evidential weight.

SH: Appreciate that. The ‘notsojolly[holiday?]’ evidence is before you today. I’m minded its 12 noon. I rest there and allow counsel to respond.

C1:  I will be precise. HMCTS is taking an interest - suggesting there is a blanket disclosure provision – highly problematic as a data controller.  You wouldn’t expect no safeguards.

JN: Given that the rules provide for party and non-party applications if you are communicating with the court it’s on the basis there was a potential that disclosure under CPR rules, a reasonably informed person would be aware…. Your point is it wouldn’t be open access and that the court would have a principled approach?

C1: yes, precisely. Re route 1 major feature of 5.4B(2)is from court records. Less straightforward for a request for order than e.g. letter by X

JN: I’m aware from CE filing that I can occasionally see what is filed as ‘office copy request’ which means a request has arrived from a 3rd party. If it’s in the open document category then that is just administration. 

I looked back through and an office copy request and was not there in this case . 

Therefore maybe it’s not a record?

C1: Yes not a definition of what a record is maybe. One supreme court case did look in general terms as to what a record is. Records of the court must refer to those which court keeps for its own purposes. Clearly my client has that info but this is very different to what one thinks of as court records.

JN: There are various logs on the system [judge looking]. Bit haphazard what’s filed. Doesn’t include office copy requests. It would include an application for more private docs.

C1: You spoke about olden days which is in the wheelhouse here. Real question is if this is a court record and it is arguable either way. 

It’s not clear here but if it was, there would still be a question as to what assessment as to whether it’s appropriate to disclose.

JN: Agreed. What principles should be applied?

C1: Sufficient similarity with NPO. The purpose for which it’s being sought. Use existing legal framework. Whether 5.4B applies or Norwich Pharmacal makes no practical difference. General jurisdiction. Dring case in white book has a few factors.

JN: It does.

C1: You are looking at the legitimate purpose of individual, public interest , impact on individual privacy and Art 8** so there is a confluence.

JN: Correct. Question 1: Are these part of a court record? If not then 5.4B(2) can’t be used. Then Norwich Pharmacal.

If yes, then what principles apply under 5.4B(2) to grant access. I mustn’t import Norwich Pharmacal as a particular remedy that has been developed. Broadly the principles you have identified in your precedent case, I also found another case.

Mr Justice Lewison gave some principles and distinction between essential open justice documents e.g. witness statements in proceedings, if they have been used in a trial then open justice is engaged. If not in that category then the court wants to know what the purpose is for access.

C1: “necessity element” in pharmacal?

JN: Pharamacal has stages built in and balancing. See NML capital case para 25 and 26

C1: I thought the publication itself was alleged as harassment rather than wanting as a means of identification. Now I have heard SH’s submission, I refer you to the Vodafone case which was to confirm where people worked. HMCTS position is similar to Vodafone.

JN: Yes that’s right. HMCTS is not caught up in wrongdoing to justify Pharma[cal]

C1: Oral submission based on how the case is now being put, I agree. Anything else I can help with?

JN: Let me check. [Judge looks and mentions  no one other authority but another example where mixed up in wrongdoing].

JN: Thanks, helpful. I will reserve judgment. 

JN: C1 please provide a short witness statement on operation of CE filing. It’s important we have distinction between primary court records and other documents that the court service has but that are not available on CE filing. Because if that is a distinction for 5.4(B) and (C) then important it’s properly evidenced.

[C1 requests 10 days to prepare witness statement, Judge agrees]

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We did not have access to papers.

Rules & Practice Directions Part 5 Court Documents covers supply of documents to a party from court records (5.4B) and supply of documents to a non-party from court records (5.4C)
5.4B(2) states” A party to proceedings may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party or communication between the court and a party or another person.”

Norwich Pharmacal Orders’(NPOs): Disclosure: a guide to seeking Norwich Pharmacal orders

CE filing is, the courts electronic filing and case management system:

Dring is a case concerning the issue of open justice in the context of access to the court file. The relevance of this principle is two-fold [48]: partly to enable public scrutiny, but also to enable the public to understand how the justice system works and why decisions are taken. Cape Holdings v Dring [2019] UKSC 38 at [1]:

“As Lord Hewart CJ famously declared, in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259, ‘it is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done’. That was in the context of an appearance of bias, but the principle is of broader application. With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done.”

The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. It incorporates the rights set out in the European Convention on Human Rights (ECHR) into domestic British law.

* SH referred to Article 6 rights.
Article 6 protects the right to a fair trial if someone is charged with a criminal offence and has to go to court, or a public authority, in this hearing HMCTS, is making a decision that has an impact upon a person’s civil rights or obligations.

**HMCTS counsel C1 referred to Article 8 rights of Person X.
Art 8 protects the right to respect for private and family life, including correspondence.