JXMX (A Child) v Dartford and Gravesham NHS Trust  EWHC 3956 (QB) – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row represented the claimant in this case. She has nothing to do with the writing of this post.
In Part 1 on this subject, I discussed medical confidentiality and/or legal restrictions designed to protect the privacy of a mother and child. This case raises the question in a slightly different guise, namely whether the court should make an order that the claimant be identified by letters of the alphabet, and whether there should be other derogations from open justice in the guise of an anonymity order, in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement.
It will be remembered from my earlier post that the President of the Family Division made various reporting restrictions in P (A Child) , but as he did so declared considerable sympathy with all the inaccurate reporting in the media frenzy about the “forced C-section” because of lack of proper information from the Court of Protection.
In the past two to three years, if lawyers settle a cerebral palsy case it has become routine to make an application for anonymity on behalf of the claimant. This seems sensible enough, particularly where there is a risk that the claimant’s family will be vulnerable to exploitation if it is known that the claimant has had an award of damages amounting to several million pounds. Even though the damages are dealt with by the Court of Protection, publicity about the award might lead to attempts to exploit the parents or other members of the family. But this has not always been the practice, as Tugendhat J points out.
Until recently applicants for approval hearings did not ask for anonymity. Claimants in actions for damages for personal injuries have generally been named. This has been so even where the claims arose out of injuries sustained at birth, where the evidence included the highly private facts of the medical treatment of the mother as well as of the child. I am informed by counsel, in this and in other cases, and by other Queen’s Bench judges, that applications for anonymity are now made in most approval hearings, if the order has not already been made by the Master.
Ms Gumbel submits that the reason for the increasing frequency of applications for anonymity orders is the availability of the internet. Information which was once ephemeral has now become recorded in permanent form, available to be found into the indefinite future with the use of a simple search engine.
It may be convenient to have no publicity, but it is not always necessary. As Tugendhat J observes, advocates for claimants commonly present their submissions on the footing either that there is no issue (if no media organisation opposes the application), or that any issue there may be is one between the privacy rights of the claimant (under common law and under Article 8) and the freedom of expression rights of the press (again under common law and under Article 10). But that is not the correct analysis, says the judge.
The fact that no media organisation opposes an application, or even the fact (if it be such) that there is consent to the order, does nothing to relieve the court of its obligation to apply the law on open justice for the benefit of the public at large.
The problem with almost all cases where the approval of the court is needed to a settlement are “utterly tragic”, usually involving severe injuries to a child sustained at birth. The presiding judge will feel the “deepest sympathy” for claimants and their family who struggle to cope against enormous challenges.
The last thing a judge wants to do is to add to the suffering. But nevertheless judges must apply the law. It is in practice extremely difficult, if not impossible, to give to the application the close scrutiny which the court is required to give to it.
There is a further consequence of this routine practice of granting anonymity orders. Even though the courts have no intention of throttling press coverage of these cases altogether, it is the very business of journalism to focus on an individual story with which readers can identify, rather than restricting the report to “some austere, abstract form, devoid of much of its human interest”. As a consequence there is not much point in journalists relaying even those details of the case which the court might intend to be reportable.
This state of affairs is clearly a matter for the Court of Appeal to sort out. Tugendhat therefore granted permission to appeal against his refusal of the anonymity order,
and in any event the uncertainty as to what judges should do in relation to anonymity applications in approval hearings is a compelling reason why an appeal should be heard.
Tugendhat J has recently ruled with other judges in the Divisional Court that where British troops had been involved in the murder of a wounded Afghan insurgent, a video and stills recording the murder should not to be made available to the media. But the anonymity order in respect of the names of the individuals involved has been lifted. Given the rejection of the anonymity claims which would inevitably carry a risk of Islamist attacks against both convicted and acquitted defendants, we can see why he was not very impressed with formulaic applications for anonymity in these settlement approval cases.
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