How to keep children anonymous in personal injury cases
28 November 2012
MXB v East Sussex Hospital Trust – read judgment
Elizabeth-Anne Gumbel QC of 1 Crown Office Row acted for the claimant in this case. She has nothing to do with the writing of this post.
In personal injury proceedings involving a child it was appropriate to grant an anonymity order prohibiting her identification since it would defeat the purpose of the proceedings to ensure that she received and kept compensation awarded for her injuries.
Publication of her name was not in the public interest, and the curtailment of her and her family’s right to respect for their private and family life that would occur could not be justified.
In proceedings brought for damages against the defendant Trust Tugendhat J held that it was necessary that there should be no reporting of MXB’s name or of other means of identification to prevent the risk of her becoming the victim of those who might attempt to misuse the funds that she had been awarded as compensation. It was therefore appropriate to make an anonymity order. The judge reached no particular conclusions on the statutory provision which allows for such orders to be made (Section 39 of the Children and Young Persons Act 1933) but decided that there was force in the argument that it might only cover newspaper reports or television or radio broadcasts. He noted that there had been no extension of s.39 to apply to any other form of report, such as one made in the social media or the internet. In a number of cases like this, those responsible for the welfare of the claimant “have been concerned that an order under the 1933 Act would not provide sufficient protection.”
…until recently, the only form in which a report of proceedings was likely to reach the public was by newspaper or broadcasting, today reports of proceedings can be made by any individual posting a report on the internet. And whereas reports in newspapers and broadcasts were ephemeral and difficult to find even a day or two after they had first been published, reports on the internet are easy to find with a search engine, and very difficult to remove. 
Therefore, if Section 39 was not the basis of the jurisdiction for making the order, it was better not to use the wording derived from it in the order, but to follow the wording of CPR r.39.2(4) to cover disclosure on Twitter and other social media. In giving the order, Tugendhat J took account of the guidance recently given by the Court of Appeal on anonymity orders applies to orders made on applications under CPR Part 21 for the approval of a settlement involving a child, particularly the requirement that the court should consider “whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought”.
(Per curiam) The judge noted that both Section 4 of the Contempt of Court Act 1981 and Section 15(1) of the Defamation Act 1996 made provision for the fact that identification might be made in media other than newspapers. He concluded that the more limited provision in the 1933 Act might not have the implications or provide the protection that Parliament had originally intended, namely because it might only apply to reports in newspapers and not to reports in other media. This had
obvious relevance to the criminal courts in which orders under s.39 of the 1933 Act are commonly made, and I have drawn this judgment to the attention of those who may be concerned as to the implications of an argument that an order under s.39 may not achieve the effect which those making it intend.
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