Open justice and anonymity orders: striking a balance in personal injury actions

There has been much hype over the years on privacy and rights of parties in legal actions and freedom of the press relating to reporting of cases that are thought to be of public interest. Open justice is a well-established principle in England and Wales that exists not only to instil public confidence and respect in the judicial system but also for the efficient administration of justice. An order for anonymity is usually granted in cases where the courts feel it is necessary, cases where the publication of the names of the parties or terms of settlement would put them at some risk of harm or prejudice, but obtaining it generally is far from straightforward. The court has to balance the rights of individuals bringing claims and the public interest. Most often it is the parties’ details that capture the public and media attention and make the case more interesting. This means certain cases that come to court for procedural purposes face the same exposure as those which go to trial. The Court of Appeal’s recent judgment in the case of JX MX (By Her Mother and Litigation Friend AX MX) v Dartford & Gravesham NHS Trust (with the Personal Injury Bar Association and The Press Association intervening) contains much needed guidance in such cases.

In this case, the claimant was a young child who had suffered very severe injuries at birth. The defendant trust admitted liability and made a substantial offer in settlement of the claim which required court approval under Part 21.10 of the CPR, not only because the claimant was a minor at the time of settlement, but also because due to the severity of her injury, she lacked capacity and would therefore be a protected person on attaining majority. Her mother and litigation friend sought an order for anonymity on the grounds that she would be at risk of unwanted attention if her identity was revealed. The approval hearing was before Tugendhat J who declined to make an order preventing publication of the claimant’s name, but directed that her address would not be disclosed. The claimant’s mother appealed and was successful.

In allowing the appeal the Court of Appeal took into consideration a number of factors, including the claimant’s vulnerability, her right to privacy under article 8 of the European Convention on Human Rights and the fact that this matter only came before the court due to her age and lack of capacity.

The court very helpfully suggested seven principles which should apply when considering whether an order for anonymity should be made, including the following:-

(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;

(ii) because the hearing will be held in open court 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 any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(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;

(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion; and

(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.

While each case will still be decided on a case by case basis, this judgment means that an order for anonymity will be granted in cases where court approval is required for children or protected parties without the need for a formal application unless there is a compelling reason not to. This should protect the most vulnerable of claimants.

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