What’s in a name? High Court considers anonymity order in sensitive claim

14 March 2019 by

A rose by any other name?


In Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) Martin Spencer J refused an application for an anonymity order by the Claimant, a woman who had suffered a stillbirth and psychiatric injury and was bringing a clinical negligence claim against an NHS Trust.

Background

The Claimant became pregnant in 2012 but, tragically, the baby died in utero and was stillborn in May 2013. The Claimant claimed damages to represent the loss of the pregnancy and also for a psychiatric injury which she suffered due to the stillbirth.

The NHS Trust admitted that their treatment of the Claimant was negligent and that they were responsible for the stillbirth. The only issue in the case was the amount (quantum) of damages.

The application for anonymity

The Claimant applied for an anonymity order to prohibit press outlets from using her name. It would not have prohibited the press from reporting on the legal proceedings themselves.

The Claimant argued that this should be granted because the trial included deeply personal matters concerning her mental health, medical history and her relationship with her two children. Identifying her would inevitably lead to identification of her children. It was also added that, in the age of social media, she might face the risk of receiving abuse and that, given her Polish background, this might even extend to racial abuse.

Importantly, the Claimant was not a child or a ‘protected party’ i.e. someone who is judged by a medical professional to not have full capacity. But she was described as a “highly vulnerable individual.”

The resistance to the application

The NHS Trust took a neutral stance. However, the Press Association argued that although the Claimant’s Article 8 ECHR rights to private and family life were engaged the court also had to consider Article 10 – the freedom of the press.

They argued that it was exceptional for the court to grant anonymity orders in cases where the Claimant is not a protected party. They added that in such cases anonymity should only be ordered where necessary in the interests of the administration of justice.

Furthermore, they stated that they were signatories of the Independent Press Standards Organisation Code of Conduct which set out guidance on how to report responsibly on the issues raised by the case, and that the Claimant’s concerns about privacy would be met by following this guidance.

The judgment

Martin Spencer J refused to grant the anonymity order.

He began his judgment by emphasising the general principle of open justice. He noted that it was important for two main reasons: (1) to protect the rights of the parties and (2) to maintain public confidence in the administration of justice.

He then looked at the Civil Procedure Rules which emphasise that proceedings must be open unless privacy is necessary to protect the interests of party or for the administration of justice.

He also looked at two previous cases in which the courts had recognised that Article 10 does not just protect the substance of ideas and information but also the form in which they are conveyed.

In both of those cases it was acknowledged that being able to report the names of individuals makes a press report more compelling. Readers are more likely to be interested in the story; editors are more likely to give the story prominence; debate is more likely to be stimulated.

Martin Spencer J quoted Lord Rodger of Earlsferry in In re Guardian News and Media Ltd [2010] 2 AC 697 in which he said:

The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on.

The judge went on to distinguish the present case from other cases which the Claimant tried to rely on.

Notably, the Claimant tried to rely on ABC v St George’s Healthcare Trust [2015] EWHC 1394 (QB).  In that case, the Claimant was an adult woman with full capacity who was suing an NHS Trust over its failure to tell her that her father had Huntingdon’s disease – a genetically inherited disease. She claimed damages for ‘wrongful birth’, i.e. had she known that she carried the risk of passing on Huntingdon’s Disease to her child, she would have terminated her pregnancy. She wanted to protect her child from inadvertently finding out through the media that they had a 50% risk of carrying the disease. It was accepted that the child could suffer serious consequences if they found out.

Spencer J found that the circumstances of ABC were wholly different and exceptional from the present case. In particular, he noted that:

In the present case, the revelation of the matters personal to this claimant and her family are inherent and intrinsic to a claim of this nature, relating as it is to psychiatric injury suffered by the Claimant from the stillbirth of her daughter. Having chosen to bring these proceedings in order to secure damages arising out of that tragedy, the Claimant cannot avoid the consequences of having made that decision in terms of the principle of open justice and the consequent publicity potentially associated with such proceedings being heard in open court.

Comment

This short judgment raises a plethora of interesting issues but, from a human rights perspective, Spencer J’s recognition of the range of Article 10 is particularly interesting.

Most of the time, we talk about Article 10 as protecting the freedom of the press to publish what they want. However, we devote much less column space to discussing the freedom of the press to publish how they want. This judgment recognises that journalistic style is also protected by Article 10, as well as content.

Martin Spencer J’s judgment also recognises that the freedom of the press to write articles in their chosen style is not necessarily an end in itself but serves a greater purpose – when articles are written in an engaging style, and tell human stories, they are more likely to stimulate debate about wider issues.

There are plenty of examples in the press at the moment. An abstract debate around statelessness and the rights of returning jihadists would probably not have attracted the same level of public comment as when these issues were debated in the context of the story of Shamima Begum.

Similarly, it has been argued that debate around and reaction to the ‘hostile environment’ immigration policies was only truly sparked when the investigations into the human stories of the Windrush generation, such as Albert Thompson, emerged in the press.

Indeed, the lifting of anonymity has been crucial to the ‘Me Too’ conversation. Without passing any comment on the correctness of the decision to defy the injunction, the naming of well-known businessman Philip Green in the press arguably brought debate on the topic of sexual harassment in the workplace from the middle pages to the front pages of the newspapers.

So, what is in a name? Well, a case by any other name would perhaps not be quite so interesting.

Rajkiran Barhey is a barrister at One Crown Office Row.

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