Anonymity and reporting restriction orders: PMC (a child by his mother and litigation friend FLR) v A Local Health Board [2024] EWHC 2969 (KB)

The High Court has provided detailed and helpful guidance on the law and approach to anonymity and reporting restriction orders generally and in particular in cases concerning personal injury and clinical negligence.  This significant judgment of Nicklin J can be found here and is discussed below. 

The background

The anonymity application arose from a claim that the Claimant developed cerebral palsy as a result of the Defendant’s medical negligence around the time of his birth. 

Liability was admitted and substantial interim payments were made before the Claim was issued in March 2023.  Particulars of Claim were filed and served which contained extensive details about the Claimant’s disability and the issues he confronted.  Judgment on liability was entered in November 2023 and further interim payments were approved by the court. The Claim was transferred to the District Registry in January 2024 with directions given towards a quantum only trial. 

There were no prior hearings in the Claim because the various orders had been made (largely by consent) without a hearing. No previous application for anonymity had been made by the Claimant.

The anonymity application

The Claimant’s solicitors issued an application notice on 1 November 2024. The Claimant sought an immediate interim anonymity order without notice pending the hearing of the application.   In its draft order, the Claimant requested general restrictions on non-party access to unredacted documents from the Court’s records. 

The evidence provided by the Claimant in support of the application was as follows: 

“The Claimant’s solicitor was contacted on 31 October 2024 by a journalist from [Media Party 1 (“MP1”)]. He explained that he had access to a copy of the Particulars of Claim and would like to publish a news article about the Claimant’s case. He indicated that it would be better if he could liaise with the family about this and seek their involvement in the article. The Claimant’s solicitor spoke to the journalist again on 1 November 2024 and he confirmed their intention to publish a piece within the near future. 

The Claimant’s solicitor has discussed the position with the Claimant’s litigation friend. The Claimant’s litigation friend does not wish to engage with the media regarding the claim, the circumstances of the claim or the value of the claim. The Claimant’s litigation friend wishes for the Court to make an anonymity order to protect the identity of the Claimant. The Claimant is a child. The interim payments that have been received to date have been managed by the Claimant’s professional property and affairs deputy, appointed by the Court of Protection. The Claimant’s injuries are severe, and he remains vulnerable to exploitation. The Claimant and his family have a right to respect for their private and family life and it is recognised that this right means that the media and others can be prevented from interfering in someone’s life.” 

In relation to previous press articles, the following was stated:

“The Claimant’s mother has previously engaged with [MP1]. From research carried out online it appears that she has engaged in two different articles. The articles comment on the Claimant’s injuries, his difficulties and how well he is doing in the circumstances. In the second article the family talk about the support they have received... The articles do not comment on or discuss the litigation and the Claimant’s litigation friend does not wish to be involved in any media opportunities to discuss the claim or the potential value or settlement of the claim.”

The Defendant adopted a neutral stance regarding the application.

Directions for a hearing

Nicklin J initially required that the Application Notice and evidence in support should be served immediately on MP1 and directed that the Claimant file further evidence regarding the proceedings and previous media coverage of the case. The court refused to grant an interim anonymity order in large part because MP1 had not been notified of the Application: [20].

Further evidence from the Claimant and the media parties

In relation to further media coverage, the Claimant’s solicitors filed a witness statement which included further articles which identified the Claimant’s story as an example of the human cost of poor standards of maternity care. As a result of this media coverage, Nicklin J held that “the Claimant is likely to be readily identifiable, particularly in his local area, as a very high-profile victim of medical negligence”: [23].

MP1 wrote to the court indicating that they did not oppose an order that protected the identity of the Claimant and his family but was concerned that any order should not prevent reporting of the name of the hospital, future phases of the litigation, or any ultimate settlement in the claim. Another interested media party (MP2) echoed this position. 

Anonymity and reporting restrictions: the law

Nicklin J conducted a comprehensive review of the authorities on open justice at [26] to [33], the justifications for derogations the open justice principles from [34] to [44], and anonymity orders, including on an interim basis, from [45] to [93].

At [93], Nicklin J concluded that: 

“In cases where the reporting restriction is sought after the litigation has been pending before the Court for some time and has progressed through several phases, a fortiori where the information now sought to be withheld has been published and is now lawfully in the public domain, it is likely to be very difficult (if not impossible) for the applicant seeking the reporting restriction to satisfy (b) [i.e. to show by clear and cogent evidence that without an order being made the Court would be acting incompatibly with a Convention right]. In many cases where the qualified Convention right relied upon is Article 8, this will simply reflect reality. Once the name of a party has been published in connection with the litigation, it will usually be too late to seek any sort of anonymity. Extreme cases, where the applicant demonstrates that, without a reporting restriction being imposed, there is a credible risk of serious harm reaching the required threshold to engage Articles 2/3, may compel the Court to grant orders that even require existing lawfully published material about the proceedings to be removed from online platforms, but such orders will be wholly exceptional.”

At [94] to [114], Nicklin J went on to consider the Court of Appeal decision in JX MX -v- Dartford & Gravesham NHS Trust [2015] 1 WLR 3647.  For nearly 10 years, this has been the main authority relied upon for applications for anonymity orders where the Court is asked to approve a settlement of a civil claim under CPR 21.10.  Interestingly, Nicklin J indicated that this (higher) authority was not consistent with principles of open justice and failed to consider and apply the correct tests: [108] to [114].  

The Decision in this case

Nicklin J confirmed that the statutory basis to grant reporting restriction is s.37 Senior Courts Act 1981, not CPR 39.2(4) or s.6 HRA 1998: [125].  This point did not arise in JX MX. 

He proceeded to evaluate the factors in favour of and against granting anonymity in the instant case. 

Factors in favour of immunity at [128].

• The Claimant was a child (and the Courts recognise that derogations from open justice may be necessary to protect their interests: JX MX [8], [29]-[30]); 
• The remaining phases of the litigation (whether a trial on quantum or settlement with an approval hearing) are likely to involve consideration of intensely private and medical information. 
• The Claimant was allegedly “vulnerable to exploitation”. The suggestion was that the Claimant may need safeguarding from those who might seek to gain access to funds he would receive by way of compensation.  However, this was not properly explained or evidenced leading the court to attach minimal weight to this factor: [129].

Factors against grant of anonymity at [130]

• Significant weight to be attached to open justice.  The burden was on the Claimant to demonstrate by clear and cogent evidence sufficiently weighty countervailing factors which convince the Court that anonymity is necessary. 
• Pre-existing media coverage of the Claimant and the Claim.
• Earlier phases of litigation have been conducted without any anonymity order having been sought or granted enhance the weight to be attached to Article 10 rights. 
• “The practical consequence”, according to the judge was that “there now exists in the public domain – readily available online – material that would undermine (and might render ineffective) any anonymity order that the Court were to grant now.”

Nicklin J considered that the lack of opposition to the grant of anonymity by two media parties (MP1 and MP2) was a “neutral factor”: [131].  He considered that they had “failed to appreciate the full implications of the order sought by the Claimant” which, if granted, would have required them to remove previously published articles as well as restricting future publication including regarding the remaining phases of the litigation: [131]. 

Nicklin J stated at [132] that, in his judgment, the factors in support of the anonymity order were “very weak.” He went on to explain in that paragraph that:

“They do not provide the clear and cogent evidence that demonstrates that it is necessary to displace the usual principles of open justice, which include the identification of the Claimant in the usual way. On the contrary, the amount of material about the Claimant and the claim that is available in the public domain – most of it placed there voluntarily as a result of interviews by the Claimant’s side or as a result of conduct of the proceedings without any anonymity order having been granted – makes any effort to anonymise him at this stage both unjustifiable and futile. It is simply too late for anonymity in this claim. I note, from the Application Notice, that the Claimant’s mother “does not want to engage with the media regarding the claim, the circumstances of the claim or the value of the claim”. That is, of course, her choice. But it does not affect the fact that historically she, and a solicitor acting on behalf of the Claimant, have been quite willing to speak to the media about the Claimant and to share substantial information which has led to the publication of the articles in Annex 2.”

Nicklin J stated at [133] that, as a matter of practicality, the prior decision to release information into the public domain precluded the possibility of securing meaningful anonymity for the Claimant in this claim. 

On the other hand, Nicklin J found that there was a “clear and continuing public interest in the Claimant’s claim going beyond the inherent public interest in court proceedings generally. It is not the case that the initial publicity concerning the Claimant has faded from public memory or that legitimate journalistic interest in the Claimant’s case has waned.”: [138]. At [139], he found that the requested anonymity order would have frustrated future coverage of the case of the nature that the media parties wished to perform.  At [142], he rejected the Claimant’s argument that this was a limited derogation from the principle of open justice on the basis that it “fails to appreciate the impact of jigsaw identification” and the impact on future press coverage. 

Nicklin J therefore refused to grant the order requested or any order imposing restrictions on reporting the case or identifying the Claimant: [143]. 

Where does this decision leave Claimants?

It is not known at present whether this decision will be appealed. However, it is likely to create some uncertainty about the correct approach to anonymity and reporting restriction orders due to its criticism of JX MX. Ultimately, it seems likely that this will require to be resolved by the Court of Appeal. 

Nevertheless, Claimant solicitors will want to consider this case with great care when making applications for anonymity or reporting restrictions.    The following points of guidance or general instruction can be extracted from the judgment: 

1.  Make the application at the outset of the proceedings (i.e. do not wait for a CCMC or another hearing to file the application).  The delay in filing the application in this case meant that further information (which the Claimant wished to anonymise) was in the public domain by the time that the issue was addressed in court. 

2. Make the application for a reporting restriction on notice if a media organisation has previously published information about the case because the requested order will have a retrospective effect on the publisher’s reporting.   In cases of prospective publishing, careful thought should be given to whether notice should also be given using the Injunctions Alert Service of the Press Association (as the court may require this to be done). 

3. The order should identify the correct statutory basis for the reporting restriction. The principal statutory bases upon which a reporting restriction can be made in a case like this are s.11 Contempt of Court Act 1981 and, for cases involving children or young persons, s.39 Children & Young Person Act 1933. The condition precedent for the making of a s.11 order is that the Court has also made a withholding order. The references to s.6 Human Rights Act 1998 and CPR 39.2(4) as the jurisdiction under which the order would be made are erroneous.  the operative power to restrict non-party access to documents from the Court’s records is CPR 5.4C(4). If a withholding order has been made at the commencement of the proceedings, it will usually be effective in ensuring that documents filed by the parties will withhold the protected information, meaning that it will usually not be necessary to impose any further order under 5.4C(4). It may be necessary to make an order under CPR 5.4C(4) to restrict non-party access to confidential annexes to documents that are filed in the proceedings, if that is the method of withholding that the Court has used to protect the relevant information

4. Remind Claimants (and those representing them) to be careful about putting information about their case into the public domain, including on social media. 

5. Consider carefully the extent and nature of any prior publication of information about or by the Claimant. How difficult in practice would it be to remove that information from the public domain? 

6.  Note that “by consent” will not be appropriate (or relevant) in an anonymity order. The court will decide for itself whether the derogations from open justice are strictly necessary, irrespective of the consent of the parties. 

7. If a reporting restriction order is sought, it should set out clearly what cannot be published or what changes need to be made to published material.  The order should state for how long the restrictions are to last.  See the model order attached to the Practice Guidance. 

8. Ensure that clear and cogent evidence is provided in support of the application. Nicklin J emphasised that:

a. Any applicant seeking a reporting restriction order must file with the Court evidence demonstrating the extent to which the information which is sought to be restrained by the reporting restriction order has already come into the public domain. That will include any pre-existing media coverage and, after proceedings have been commenced, public judgments in the claim, documents available to public inspection under CPR 5.4C(1), details of any open court hearings in the claim, and what is available about the claim on third-party providers such as Westlaw.

b. The burden is on the person seeking the derogation from open justice to demonstrate why such a restriction is necessary.  If there are concerns, for example, about the Claimant’s exploitation or vulnerability in the event of reporting on the case, these concerns need to be clearly explained, ideally in the form of a supporting witness statement. 

Frederick Powell specialises in cases involving healthcare, personal injury, and human rights.  Due to the nature of this work, issues regarding anonymity orders and reporting restrictions frequently arise in his cases.  For more information about Frederick, please contact his Practice Manager, Grace Walton.