Anonymity and reporting restriction orders: PMC (a child by his mother and litigation friend FLR) v A Local Health Board [2025] EWCA Civ 1126

The Court of Appeal has handed down a landmark judgment on applications for anonymity and reporting restriction orders, overturning the High Court’s refusal to grant an anonymity order. The decision is likely to apply in cases where claimants seek anonymity orders, cases concerning children and other vulnerable parties, including under CPR 21.10 for approval of a settlement.  The unanimous judgment of Sir Geoffrey Vos MR can be found here and is discussed below along with recent legal developments in this area.

Factual background to the claim

The appeal arose from a clinical negligence case brought by a vulnerable child suffering from cerebral palsy, whose injuries had been caused at birth by the admitted negligence of the defendant health authority. 

The defendant made substantial interim payments 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. A liability judgment was entered by consent in November 2023 and further interim payments were approved by the court.  An application for anonymity was first made in November 2024 on the basis that (a) the claimant was unlikely to have capacity to conduct proceedings or manage his affairs on reaching adulthood, and (b) publication of the circumstances giving rise to the claim, the interim payments and any ultimate settlement sum would be unjust and would infringe his article 8 rights. 

There were no prior hearings in the case because the various orders had been made (largely by consent) without hearings. Before the proceedings were issued, there had already been two media articles about the claimant’s case published in 2020 and 2021, which arose from his mother’s engagement with a media outlet. The mother said she did not wish to engage further with the media.

The terminology

The Court of Appeal began by clarifying the terminology associated with orders in these cases. They distinguished between (i) a withholding order (“WO”) to withhold or anonymise the names of a party or a witness, including withholding information that would identify that person; and (ii) a reporting restrictions order (“RRO”), to restrict the reporting of material disclosed during those proceedings whether in open court or by the public availability of court documents.  The MR further explained that an anonymity order (“AO”) has the effect of both withholding or anonymising the names of a party or a witness and restricting the reporting of material disclosed during those proceedings.  In practice, an AO is both a WO and an RRO.

The High Court decision

Mr Justice Nicklin (the judge) refused the anonymity order (AO) sought by the claimant on the basis that there was no statutory foundation for making a reporting restriction order  the absence of a WO, and that the evidence did not support a WO being made in this case, because material concerning the claimant and his claim was already in the public domain. Derogation from the principle of open justice was not, according to the judge, necessary in this case. Nicklin J drew two conclusions which were subject to challenge:

1. That there was no inherent power at common law to impose reporting restrictions on what happens in open court, relying on Lord Sumption in Khuja v. Times Newspapers Limited [2019] AC 161 at [18] in preference to Lord Reed’s view expressed in A v. British Broadcasting Corporation [2015] AC 588 which held that there such a common law power.
2. The Court of Appeal’s decision in JX MX v. Dartford and Gravesham NHS Trust [2015] 1 WLR 3647 was distinguishable on the facts (since it did not deal with previous publication of the claimant’s name) and per incuriam (since it failed to identify the jurisdiction to make an RRO and was inconsistent with “clearly established principles of open justice”). 

The claimant appealed the judge’s approach to all these points. The defendant Health Authority was neutral on the appeal. The Official Solicitor supported the appeal, and the Personal Injuries Bar Association supported aspects of the appeal. The BBC supported most aspects of the judge’s judgment. 

The Court of Appeal’s decision

The Court of Appeal unanimously allowed the appeal. 

The MR held firstly that there was a limited common law power to derogate from the principle of open justice in civil or family court proceedings by making, within court proceedings, both a WO and an RRO where it was “strictly necessary in the interests of justice”.    This power could be deployed to protect the interests of vulnerable parties: [88].  That said, “open justice remains a cardinal principle”: [89].  At [91], he confirmed (citing Tickle v BBC [2025] 2 WLR 714 at [49]) that the “Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification.”  Any balancing exercise between Article 8 and 10 rights should follow a “structured approach”, as recently affirmed by the Supreme Court in Abbasi v. Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15 at [128]-[130].

The MR secondly held that JX MX remained good law and Nicklin J’s criticisms were unjustified. Subject to three caveats, the guidance in JX MX applied to approval applications under CPR Part 21.10 and to applications for AOs in personal injury claims brought by children and protected parties. The three caveats were that (i) the application for an AO should be listed anonymously, (ii) the applicant did in every case have to apply for an AO that would only be made if it were shown to be strictly necessary to derogate from the open justice rule in the interests of justice, (iii) the necessary evidence in support of an AO depended on the circumstances, but those circumstances might be sufficient to make it unnecessary to speculate as to future specific risks to the claimant.

The Master of the Rolls clarified that if the parties know a media outlet or any other non-party has already published material about the case, or has shown a specific interest, they should notify that person so they have the chance to be heard on the application. Where no such third-party interest is known, there is no need to give the media advance notice of an anonymity application (contrary to Nicklin J’s suggestion that the press should be routinely notified if an application is made). If an order is made, the media will learn of it immediately because CPR 39.2(5) requires the order to be published on the Judiciary website.

Applying its own principles, the Court of Appeal held that a prospective anonymity order was strictly necessary in the interests of justice in this case. A 10-day quantum trial is listed for December 2025; if the claim settles before then, an approval hearing under CPR 21.10 will be required. On either path, sensitive information about the claimant and his family would inevitably be aired in open court, and documents containing private material would be filed and available for public inspection without protection. The AO would not stop the media reporting matters of public interest, such as what happened to the claimant, how the hospital responded, or the level of any damages agreed or awarded. Its effect is narrower: it prevents the claimant and his family from being further identified in the media as the claimant in this case.

Lastly, the Court of Appeal held that prior publicity did not bar the application. It could, however, count against granting an AO or point instead to a prospective reporting restriction only. Here, a prospective withholding order and matching RRO were strictly necessary in the interests of justice because: (i) the claimant is extremely vulnerable; and (ii) reporting medical details, family circumstances and financial matters alongside his name would seriously interfere with his and his family’s private life. That does not mean a derogation from open justice will be strictly necessary in less compelling cases. Outcomes are evidence-driven and fact-specific, and a different case – without all of these factors – may not justify an order.

Analysis

The High Court ruling created significant uncertainty about the correct approach to anonymity and reporting restriction orders due to its criticism of JX MX and the suggestion that the PF10 (on which a great many practitioners have been relying) is wrong in form and substance. The uncertainty prompted interventions from a host of interested parties, including PIBA and the Official Solicitor, and led to the Court of Appeal issuing an interim judgment in February of this year in an attempt to clarify the correct approach: [2025] EWCA Civ 176.  

The High Court ruling had also fed concerns that anonymity orders would no longer be practically available to vulnerable claimants.  The effect of the ruling was to transform what had been a relatively straightforward case-management decision about whether to derogate from open justice into a narrow, technical gateway akin to the process for seeking a freestanding privacy injunction. By reading s.11 Contempt of Court Act as unusable unless a name had already been “withheld,” the judgment created a withholding-first precondition that made applications highly vulnerable to timing accidents (e.g. names appearing on listings before a judge could be asked). It also gave outsized weight to prior publicity, implying that once a claimant had been identified somewhere, prospective protection was largely pointless; an especially harsh outcome for children and protected parties facing intrusive quantum or approval hearings. 

The Court of Appeal has largely removed the technical traps that worried claimants after the High Court. It confirmed that judges do have a limited common-law power inside proceedings to make a withholding order (WO) and a matching reporting restriction order (RRO), i.e. an anonymity order (AO). Section 11 of the Contempt of Court Act is not the source of the power but a statutory aid that can be used when the court decides to withhold information; crucially, it is not a precondition that the name must have been withheld “throughout” the case. That clarification dissolves the “withholding-first” hurdle and allows AOs to be made later in proceedings where justified, potentially on a prospective basis if there has been prior publicity.

The Court also supplied a stable procedure. JX MX remains good law and its approach applies to PI cases for children/protected parties, with three practical caveats: list the AO application anonymously; the applicant must still show strict necessity in the interests of justice; and evidence may, where risks lie in the future, include generic evidence drawn from analogous cases. On notice, only targeted notification is expected where there is known media/third-party interest; otherwise there is no duty to pre-notify because CPR 39.2(5) publication enables quick challenge after the order. This gives practitioners a clear, workable roadmap rather than a series of technical pitfalls.

Finally, the Court showed in PMC itself how this balance should operate: despite earlier publicity, a prospective AO was strictly necessary to protect a highly vulnerable claimant facing a quantum/approval stage where intimate material would otherwise be exposed, while still permitting robust reporting on matters of public interest (what happened, conduct of the litigation, headline quantum). It also clarified the constitutional footing: domestic open-justice principles (with their common-law/statutory qualifications) provide the starting point, and s.6 HRA 1998 ensures the court acts compatibly with Articles 8/10 within those existing powers. Section 6 is not a freestanding source of jurisdiction. That combination removes the uncertainty created below and restores a principled, predictable route to anonymity where it is strictly necessary.

Practical Guidance Regarding Anonymity Applications

The following practical points emerge from the CA’s decision in PMC:

 1.   Act promptly – even though late applications can still succeed

Apply at the outset if you can and ask the court to list the case anonymously from the start. Prior publication may still be a factor which weighs against granting anonymity.  But the Court of Appeal made clear it is not a jurisdictional bar that no withholding order was made at the very beginning; a WO/AO can be made later, though relief will ordinarily be prospective if there has been prior publicity.

2.  Give targeted notice; no blanket pre-notification is required

If you know a media outlet (or other non-party) has already published material about the case or has shown a specific interest, they should be told so they can be heard. If no such third party is known, you do not have to notify the media in advance: once an AO is made, the order must be posted on the Judiciary website under CPR 39.2(5), and the media can then apply to vary or set aside swiftly. 

3. Identify the appropriate jurisdictional foundation for the reporting restriction.  

• The court has a limited common-law power to make an AO (preventing publication of specified material disclosed in open court or in documents placed before the court) where strictly necessary in the interests of justice.  This will likely be the appropriate power on which to rely in most cases.
• Section 11 CCA 1981 can also be relied on when (and to the extent) the court allows a name/other matter to be withheld in the proceedings. s.11 does not require that the name has been withheld “throughout” the case. What matters is that the court both (i) had power to make, and (ii) did make, a WO within the proceedings; timing is not a jurisdictional bar. 
• Section 37 Senior Courts Act 1981. This grants the Court the power to grant injunctions including AOs where it is “just and convenient” to do so.  See s.38(1) County Courts Act 1984 for analogous provisions relating to the County Court. Following CA decision in PMC, this is not the right jurisdictional foundation in a routine anonymity for parties/witnesses within ongoing civil proceedings (e.g. PI claims by children/protected parties, approval under CPR 21.10).  These should be grounded in the court’s common law power. However, where you need a contra mundum restraint (binding the world at large) covering material outside court reports, or retrospective relief, or there are no extant proceedings (pre-action), the AO may stand, if at all, on the equitable s.37 footing.  
• CPR 39.2(4) is engaged where non-disclosure is necessary to secure the proper administration of justice. However, it does not, on its own, provide a jurisdictional basis to make an AO. 
• Section 6 HRA 1998 is prohibitory, not enabling. S.6 HRA requires the court to act compatibly with Convention rights within powers it already has (the common-law/inherent and statutory powers above). It will not usually create a free-standing power to grant an AO (although the UKSC in Abbasi did not rule out the possibility of it doing so in certain situations, without specifying what they might be).
• S.39 Children & Young Persons Act 1933. This gives the court the power to impose reporting restrictions in respect of a child or young person in proceedings in any Court except criminal proceedings. Importantly, it automatically lapses when child turns 18, so may not be appropriate in cases involving minors who need lifelong protection of their identity. 
• S.1 Sexual Offences (Amendment) Act 1992. This confers lifelong anonymity in respect of allegations that an individual was subjected to certain serious sexual offences. It restricts publication of anything which identifies that individual as a victim of that offence.
• S.4(2) Contempt of Court Act 1981. This enables a time-limited order postponing reporting on a case. It must be “necessary for avoiding a substantial risk of prejudice to the administration of justice”.  It is not to be used as a mechanism to create anonymity in civil cases, but can co-exist with AOs made on some other basis. It is sometimes useful to get an order restricting publication until a final AO in place and press notified (although an interim AO is presumably also available pursuant to the court’s inherent common law jurisdiction). 
• Parens patriae powers. This is the inherent and equitable jurisdiction of HC to exercise prerogative powers of Crown as ‘parens patriae’ (i.e. paternal jurisdiction). It allows the court to grant an injunction contra mundum (against the world) restraining the publication of information, if that is necessary, to protect the interests those who cannot protect themselves (e.g. children, vulnerable adults). The Court required by s.6(1) HRA 1998 to exercise those powers compatibly with Convention rights. This power expires on the death of a child or vulnerable adult.  This power is most commonly invoked in applications for privacy injunctions connected with determination of a child’s best interests (e.g., about whether life-sustaining treatment should be withdrawn), see Abbasi.

4. Dealing with prior publication

Prior publicity does not disqualify an AO. It may be a pointer against relief or towards a purely forward-looking AO, but the court will focus on what is strictly necessary in the interests of justice on the facts.  It is sensible to remind claimants (and those representing them) that putting information about their case into the public domain, including on social media, can have a detrimental effect on their ability to secure an AO. If posts containing sensitive information have already been made, it may be sensible to remove them promptly to mitigate the damage caused.  Consider carefully the extent and nature of any prior publication of information about or by the claimant: does this give rise to a risk of jigsaw identification, either on its own or in conjunction with future reporting on the case? 

5. Listing and case title

Do not list anonymity applications under the claimant’s name. The CA recommended using a neutral description (e.g., “application under CPR 21.10”) or a three-letter pseudonym from the outset, to avoid identifying the claimant before the application is decided. The approval hearing itself must still be in open court.

6. Scope and effect of any order

Draft orders carefully, stating (i) precisely what cannot be published, (ii) the duration, and (iii) that the order does not restrict reporting on legitimate matters of public interest (e.g., events giving rise to the claim, institutional conduct, and the amount of any damages). In PMC, the CA emphasised that a prospective AO would not prevent such reporting; it would prevent further identification of the claimant/family as the claimant in the case.

7.  Amending PF10

The PF10 form will likely be updated by the Civil Procedure Rule Committee: (see CA at [115]). In the meantime, practitioners may (subject to a couple of caveats listed below) wish to follow the approach recommended by CA in its interim judgment that “for the sake of good order, it may be best for practitioners and judges to continue to use that form for the time being.” The first caveat is that “by consent” will not be appropriate (or relevant) in an anonymity order (contrary to the current wording of the PF10). The court will decide for itself whether the derogations from open justice are strictly necessary, irrespective of the consent of the parties.  Other amendments will need to be made regarding the statutory powers relied upon (depending on the circumstances of the case).  

8.  Provide frank, cogent, and proportionate evidence

• The burden falls on the person seeking the derogation from open justice. Provide evidence of the essential circumstances that make derogation strictly necessary. The CA in PMC discouraged speculation about future risks. Generic evidence (e.g., about adverse effects of publicity in comparable cases) can be used where forward-looking risks are at issue, although specific evidence of probable future harm is likely to be more compelling. 
• Where relevant, exhibit what is already public (earlier media coverage, open-court hearings, judgments, and what is accessible under CPR 5.4C(1)/third-party databases) so the court can calibrate any order, including whether only prospective relief is appropriate.

9. Consent is neither necessary nor sufficient

The parties’ consent cannot waive the public’s rights. The court must perform the open justice balancing exercise and will only make derogations that are strictly necessary. 

10. Court records and non-party access

Use CPR 5.4C(4) (and 5.4D where appropriate) to tailor access to statements of case, judgments and orders (e.g., to ensure anonymised versions are accessible; restrict un-anonymised material or confidential annexes). This complements a WO/AO made in the proceedings.

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.