Straining the Alphabet Soup: Part 1 — Anonymity orders in Personal Injury proceedings

30 April 2019 by Angus McCullough KC

Angus McCullough QC is a barrister at One Crown Office Row

Amendments to CPR r.39.2; new Guidance issued by the Master of the Rolls; and a recent High Court decision refusing anonymity to a claimant prompt this review of anonymity orders in personal injury proceedings.

You act for someone who is vulnerable as a result of a serious brain injury.  Her claim has been settled, and as a result your client is due to receive a large award of compensation, of several million pounds.  The Court’s approval of the settlement is required (under the Civil Procedure Rules r.21.10).  There is a concern that if there is publicity about the award your vulnerable client will be targeted and exploited by unscrupulous individuals.  However, principles of open justice, and rights under Article 10 (freedom of speech), are engaged and favour unrestricted reporting of court proceedings.

This familiar situation was addressed by the Court of Appeal in X (A Child) v. Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 (also reported as JXMX, which is how I shall refer to the case here).  The decision was covered by this blog here. It established that in these circumstances the Court considering the proposed settlement should normally make an order providing for anonymity if requested to do so:

34.  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. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend. The court must also recognise, however, that the public and the press have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, the press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the press formally that an application for an anonymity order will be made. If the press or any other party wishes to contend that an anonymity order should not be made, it will normally be necessary for it to file and serve on the claimant a statement setting out the nature of its case.

So, all is clear then?  Not quite.  Issues in practice continue to arise, in particular as to the limits to the range of personal injury proceedings covered by the principles in JXMX.  And even where an anonymity order is to be made, practical difficulties routinely arise in relation to the form of order that should be used.

• Part 1 of this post will address the proper approach to anonymity in personal injury proceedings since the decision in JXMX.
• In Part 2 I will consider the form of order that is appropriate, including problems encountered with the standard form template at PF10, and other versions of such orders that are routinely being adopted.

The Scope of JXMX

Mr Justice Martin Spencer has recently refused anonymity in Zeromska-Smith v. United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB).  The decision contains a useful review of the principles in play and was discussed on this blog here.  The claimant was an adult of full capacity, who sought damages for psychiatric injury caused by the stillbirth of her baby.  The case is a timely prompt to consider the limits of the jurisdiction to grant anonymity in personal injury and clinical negligence litigation, beyond the arena of approval hearings.

• Claimant a protected party

Although JXMX specifically related to approval hearings, anonymity orders are now routinely obtained and granted in substantive proceedings in which the claimant is a ‘protected party’ (i.e. a child or a person without the capacity to conduct the proceedings).  The principles identified by the Court of Appeal have been taken to be applicable to substantive contested proceedings.  GB v Home Office is an early example, in which Coulson J referred to the requirement for consistency that had been highlighted by Moore-Bick LJ in JXMX.  Unless or until the Court of Appeal indicates that this approach is wrong, it may be safe to assume that an anonymity order will generally be granted in substantive proceedings involving a ‘protected party’.  It is advisable to seek such an order in advance of any substantive hearing, as suggested by Martin Spencer J in Zeromska.

• Claimant not a protected party

Unsettled questions remain as to the proper approach in cases in which the claimant is not a protected party.  The decision in Zeromska-Smith is a reminder that the sensitivity of the subject matter is unlikely to be a sufficient justification for anonymity:  particular and exceptional circumstances are likely to be required where no protected party is involved.

But what about claims under the Fatal Accidents Act 1976, brought by dependants following a death?  Frequently the claim may be brought for the benefit of minor children, albeit not as named claimants.  In such cases approval under CPR r.21.10 is required for any compromise to be binding.  On that basis perhaps JXMX justifies a presumption of the grant of anonymity where a dependant child is involved.

Another difficult category is claims for ‘wrongful birth’ – in which typically the claimants are adults of full capacity bringing proceedings arising from the birth of a child born disabled.  These arise in cases of ineffective sterilisation, or an antenatal failure to detect the disability. For example:

• ABC  v.  St George’s Healthcare NHST was a ‘wrongful birth’ claim, albeit arising on unusual facts (and legally interesting in its own right, as covered by this blog here and here).  Nicol J was persuaded to make an anonymity order to protect the interests of the child concerned, in particular from the harm of discovering through a report of the proceedings that her mother had Huntington’s disease and there was a 50% chance that the daughter herself had that condition. That led to the consequential anonymisation of other family members, including the Claimant (whose rights to a private life were also considered). The anonymity order was maintained in the Court of Appeal, and was not the subject of any comment in the appeal judgment.
• A v East Kent was another ‘wrongful birth’ case heard shortly after the Court of Appeal’s decision in JXMX, Dingemans J made an anoymity order, but only on the particular facts of that case. It is clear that he did not regard JXMX as justifying any presumption of anonymity in the context of a substantive claim involving a child that was not a party to the claim. The application in that case was made under the Children and Young Persons Act 1933. Based on the specific concerns of the mother, which had been set out in evidence, the order was made.

Conclusions

The following conclusions may be drawn:

1. The principle of open justice is fundamental to the common law.  The rationale for this to protect the rights of the parties, and also to maintain public confidence in the administration of justice.
2. The reporting of the identities of parties and witnesses is an important element of open justice.
3. The presumption of open justice is reflected by CPR rule 39.2:  “The general rule is that a hearing is to be in public.“
4. Both the common law and the CPR rule 39.2 recognise exceptions to the principle of open justice, where necessitated by a countervailing interest.
5. In the context of personal injury claims, hearings to approve a proposed compromise of a claim on behalf of a protected party constitute a recognised exception: JXMX
6. In cases other than approval hearings, the application should be made in advance of the hearing, on notice to the Press Association:  Zeromska at §21.
7. The fact that an anonymity order is unopposed (or consented to) does not obviate the requirement for the court to be satisfied of the necessity for any derogation from the principle of open justice.
8. In substantive claims involving a protected party the Court is likely to be prepared to make the order for anonymity of that party without specific evidence or application, based on established extension of the principles in JXMX. It would be advisable for the order to be obtained in advance of the substantive hearing, rather than at it.
9. In cases in which no party is ‘protected’, there remains a requirement of strict justification for anonymity, as being a departure from open justice. This is shown by Zeromska, considered above, and claims for ‘wrongful birth’ (where the child born may be under a disability, but both parents will generally be adults of full capacity). A formal application supported by evidence should be assumed to be necessary, and made in advance of any substantive hearing, on notice to the Press Association.

In Part 2 of this post, we will consider the form of the order that should be made, and see some of the practical problems that have become apparent by adoption of a ‘boilerplate’ form.

Listen to episode 77 of Law Pod UK, in which Rajkiran Barhey discusses anonymity orders with Emma-Louise Fenelon, here.