CA supports anonymity orders in personal injury approval hearings

19 February 2015 by

baby-birth-injuryJX MX (by her mother and litigation friend AX MX) v. Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, 17 February 2015 – read judgment

Elizabeth Anne Gumbel QC and Henry Whitcomb of 1COR (instructed by Mark Bowman of Fieldfisher) all appeared pro bono for the successful appellant in this case. They have played no part in the writing of this post.

For some years there has been debate between the judges about whether anonymity orders should be made when very seriously injured people’s claims are settled and the court is asked to approve the settlement. This welcome decision of the Court of Appeal means that anonymity orders will normally be made in cases involving protected parties. 

This is why the CA reached its decision.

Background

JX sustained very severe birth injuries and sued the Trust responsible. She will always be a protected party, with people looking after her and her interests. Her claim settled for a very significant sum, and went before Tugendhat J for approval of the settlement. This approval hearing is in open court. As a result, her advisers asked for an anonymity order. Her mother had said that she was concerned that people might start looking to her for payments if the very large sum awarded to her daughter was reported in the press, and she was concerned about her and her daughter’s loss of privacy.

The judge was unconvinced. All of her daughter’s affairs would be looked after by a professional Deputy, and, he said, the mother’s fears were not objectively well founded.

The appeal

The CA set out ringing statements in favour of open justice from cases such as Scott v Scott [1913] A.C. 417, and A v British Broadcasting Corporation [2014] UKSC 25. In A Lord Reed had recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties.

At [14] the CA recognised contrary interests in these cases:

Proceedings involving children and vulnerable adults will often call for a measure of privacy, not necessarily because of the inherent nature of the issues to which they give rise, but because such persons may suffer a distinct injustice if they are exposed to the publicity that may be generated if the proceedings are held in public. Moreover, a claimant who is, or will in due course grow up to be, a protected party may need protection from those who would seek to gain access to the funds that are intended to provide compensation for the injuries in respect of which they were awarded.

See also the helpful summary at [16] of the circumstances in which family justice may or may not involve a derogation from open justice.

The Court readily accepted that any order which prevents or restricts publication of a party’s name or other identifying information involves a derogation from the principle of open justice and the right to freedom of expression. It is necessary to consider carefully whether a derogation of any kind is strictly necessary, and if so what is the minimum required before making such an order. The approach is the same under the common law or through Articles 6, 8 and 10 of the ECHR.

Previous cases such as  JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 related to applications to prevent publication of personal information.  In that slightly different context, Lord Neuberger M.R. identified the following general principles

(i) an order for anonymity should not be made simply because the parties consent to it;

(ii) the court should consider carefully whether some restriction on publication is necessary at all, and, if it is, whether adequate protection can be provided by a less extensive order than that which is sought;

(iii) if the application is made on the basis that publication would infringe the rights of the party himself or members of his family under article 8, it must consider whether there is sufficient general, public interest in publishing a report of the proceedings which identifies the party concerned to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

The CA in the present case reaffirmed that any departure from open justice should be justified  strictly on the grounds of necessity. But they were more sympathetic to the predicament of the mother seeking to put into words why she feared loss of privacy.  They recognised the importance of maintaining the family’s privacy.

Interestingly, the CA made a point about discrimination under Article 14 ECHR:

children and protected parties are entitled to the same respect for their private lives as litigants of full age and capacity (who are free to settle their claims without resort to the court), subject only to the need to ensure that their interests are properly protected.

The evidence in such cases is highly personal, going to the claimant’s current medical condition,  and her future care needs.

Withholding the name of the claimant mitigates to some extent the inevitable discrimination between these different classes of litigants

An anonymity order, prohibiting the publication of the claimant’s name and address and a restriction on access to the court documents seemed to the CA  to provide a reasonable degree of protection both against an unwarranted invasion of privacy and an interference with the right to family life and against such other risks as there may be, whether of dissipation of assets or otherwise.

At [34] the CA stated the general rule in future.

In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so.

That said, the press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings.

At [35] the CA set out future practice:

(i) the hearing should be listed for hearing in public under the full name of the party, unless an anonymity order had already been made;

(ii) the Press and members of the public will have a right to be present and to observe the proceedings;

(iii) the Press will be free to report the proceedings, subject only to the anonymity provisions;

(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;

(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family.

So in cases involving protected parties, the default position is anonymity.

Conclusion

A welcome ruling which removes the uncertainty over anonymity orders in such cases which has been prevalent in recent years.

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