LK v Sandwell & West Birmingham Hospitals NHS Trust

There is before the court an application for the court’s approval to a settlement of a claim brought by a protected party. The claim was for personal injuries suffered by the claimant, arising out of the defendant’s negligence some years ago, in respect of which proceedings were commenced in this court. The claim, of course, is brought by the protected party’s litigation friend.

The circumstances of the claimant are very difficult indeed. It is not expected that the claimant will be able to live a life with any significant degree of independence; that is to say, the claimant is expected to live with the assistance of carers and not otherwise. The settlement agreed involves a substantial sum of money. The claimant has been cared for by the family for some years and, in those circumstances, a part of the moneys payable under the settlement would be paid to the carers.

The order that has been put before me for approval is, insofar as the provisions for payment of money are concerned, in what has now become a standard form, having been approved by the court on a number of occasions. What is not a standard form is the provision in the first two paragraphs by which I am asked to order that the identity of the claimant, or any particulars which might lead to the claimant’s identification, be not disclosed and, secondly, that the identity of the defendant hospital trust, likewise, be not disclosed with orders, therefore, as to how the parties should be referred to.

The application is made by the claimant for these orders. Mr. Balcombe, for the defendant, has made it clear that he is not applying for any such order, taking a neutral position, albeit that the form of the order is headed to indicate that it is by consent. The court, of course, does not make orders which derogate from open justice simply on the basis of consent. The application is advanced under CPR 39.2. Subparagraph (1) provides:

“The general rule is that a hearing is to be in public”.

Subparagraph (4) provides:

“The court may order that the identity of any party … must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party …”

The Supreme Court has recently considered the circumstances in which the court should order the identity of a party be not disclosed. It has done so in the Guardian News & Media Ltd & Ors. Re HM Treasury v Ahmed & Ors [2010] UKSC 1 (27 January 2010 and, subsequently, in Secretary of State for the Home Department v AP (No 2) [2010] UKSC 26 ( 23 June 2010)

The application for approval in this case is supported in the usual way by an advice of leading and junior counsel, which is provided to the court but not to the defendant. It is a detailed and most helpful document, but, quite properly, it does not address the application under CPR 39.2. The test under 39.2 is a test of necessity. It is not uncommon in applications for approval of settlements of personal injury claims for anonymity orders to be made, but it is certainly not, or should not be, considered a normal order, or an order where the parties can expect the court to simply endorse any agreement the parties may have reached. There are many vulnerable claimants whom it is necessary to protect. For example - and this is only an example – protection may be from the unwanted attentions of people who, having heard of a large sum of money, want to somehow or another persuade the claimant to part with that money. There are other risks. These very large sums of money are paid in order to enable the claimant and the claimant’s carers to acquire expensive equipment. There are risks to claimants and their carers inherent in attempts to acquire and keep safe expensive equipment.

But whether or not an order under CPR 39.2 is necessary - and I emphasise the test - will depend on the facts of each case. An application ought, therefore, to be supported by evidence and by argument. The court should be provided with the argument in a skeleton form, separately from the approval advice. The skeleton will be expected to refer to the guidance given in the cases decided by the Supreme Court recently. It may very well be that the evidence in support of the application under CPR 39.2 does not need to be in the form of a separate witness statement or affidavit; sometimes it may, sometimes it may not. In the present case there is no separate evidence, but Mr. Oppenheim has drawn my attention to statements in the evidence which has been prepared for the case. In particular, I have read the statement of the deputy, who is a solicitor, giving some description of the circumstances of the claimant and the claimant’s family. I have also seen evidence prepared for the purposes of the case by the case manager. Neither of these statements was directed to the question of whether or not it was necessary that the identity of the claimant be not disclosed. So it is not a criticism of the makers of the statement to say that, for that purpose, what they say leaves something to be desired. Nevertheless, I can gain assistance from what they say.

There is absolutely nothing in the form of evidence to support the application that the name of the defendant be not disclosed. The argument of Mr. Oppenheim is that neither he nor the defendant make the application in respect of the defendant for the benefit of the defendant or any of the defendant’s present or former employees. The sole basis of the order in respect of the defendant is that publication of the name of the defendant may lead to identification of the claimant.

In addition to the submissions from Mr. Oppenheim, Mr. Balcombe, for the defendant, made clear the defendant’s stance and gave me such assistance as he felt able to give from a neutral position as to whether or not I should make the order.

In addition, there is present in court Mr. James Brewster, a very experienced representative of the press, who is well known to judges who hear these applications. He asked to be heard and I was grateful for his assistance. He made clear that, in the circumstances of the present case, he did not wish to raise any objection to an order that the identity of the claimant, or information that may lead to the identification of the claimant, be not disclosed, but he did submit that the application in respect of the defendant is objectionable. On the facts of this case the need for it is not demonstrated. He also made a more general point which he made clear is a point which has no application at all to the particular facts of this case. It is a point which the court might in any event have in mind but might not, and it is helpful to have it drawn to the court’s attention specifically. It is this: there are cases where the parties, and in particular defendants to personal injury claims, might wish for an anonymity order in respect of the defendant for reasons which have nothing whatever to do with the interests which are referred to in CPR 39.2(4). If the court does not have evidence as to what the interests are that it is necessary to protect, the court will be left with insufficient material to carry out the task it is required to carry out under CPR 39.2.

It is also a matter of concern in cases such as this not to add to the costs and delay which are often very considerable in cases of this kind. I might have adjourned the matter. I decided not to do that because I am in a position to reach a conclusion in respect of the application on the material available, inadequate though it is for the reasons I have set out. I am persuaded, having read what I have read about the circumstances of the claimant and the claimant’s family, that it is necessary to make an order in respect of the claimant that the identity of the claimant, or any particulars which might lead to the claimant’s identification, shall not be disclosed and that all orders hereafter shall refer to the claimant by initials and to the claimant’s litigation friend also by initials. I have regard to the evidence relating to not only the claimant but also specifically to the claimant’s litigation friend.

As to the defendant, I understand the argument put forward by Mr. Oppenheim: in general terms, identification of a defendant can lead to identification of a claimant. Whether it would do or not in the present case, however, is, it seems to me, a matter of speculation. On the information available to me at the moment it does not appear to me that I can be satisfied that an order in respect of the defendant is necessary in order to protect the interests which I have accepted for the claimant and the litigation friend. So I am not minded to make the second part of the order in respect of the defendant.

There is a particular consideration in relation to defendants. Defendants commonly are - and in this case the defendant is - a public body and the public have an interest in knowing what hospital trusts are facing or settling claims. Obviously, that interest does not extend to many details. But that a hospital trust should not be named when a settlement of this kind is approved is a matter which is of concern in itself. There are occasions when it will be necessary that it should not be named, but those occasions, it is to be hoped, will be rare.

Because I have not received any detailed submissions on the Guardian News & Media case or any other case, nothing in these remarks is going to be of any assistance in any future application as to how the court should exercise its powers under CPR 39.2. But the purpose of making these remarks is to encourage applicants to address the test of necessity with evidence and an explanation in the light of the decided authorities, so that the judge receiving the papers, as they commonly do, the previous day will have the opportunity to consider this aspect of the case as well as the settlement which the judge is being invited to approve. Defendants will also consider what assistance they can give to the court on this point, even in cases where they take a neutral position, or, as occasionally may happen, they are making an application in their own interests.