JXF v York Hospitals NHS Foundation Trust

Should the Court make an anonymity order in respect of the Claimant when approving a compromise by or behalf of a protected party?

I did make such an order in this case, and stated that I would give my reasons later. These are they. The application was made in relation to a hearing under CPR 21.10 for approval of a settlement.

In this case the Claimant asked for an order that contained various provisions to ensure that his identity be not disclosed. These included that he be referred to only by the letters JFX in the documents filed with the Court, and that documents already filed be disclosed to third parties under CPR r5.4 only subject to appropriate adjustments. The Claimant had in his Application Notice also asked for the hearing to be in private, but Mr Maskrey did not pursue that, and it was held in public. The application is not opposed by the Defendant.

CPR 21.10 provides :

“(1)

Where a claim is made-

(a)

by or on behalf of a child or protected party; …

no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court”.

The reasons for this provision are explained in the notes to the White Book (2010) 20.10.1 as follows:

“Rules 21.10.1 and 21.11 and the Practice Direction provide a comprehensive code the objects of which are:

(a)

To protect the interests of children and protected parties. This may involve protecting the child from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth; see Black v Yates [1992] Q.B. 526 ; 4 All E.R. 722 . (claim by child dependants for compensation greater than amount awarded by a foreign court).

(b)

To provide means by which a defendant may obtain a valid discharge from a child or protected party’s claim. At common law a contract of compromise out of court does not bind such a claimant unless it can be proved to have been for their benefit. No prudent defendant would wish to take a risk on this point. A judgment in proceedings or an order approving a settlement of proceedings under r.10 does bind the claimant child or protected party and gives the defendant a discharge.

(c)

To make sure that money recovered by or on behalf of a child or protected party is properly looked after and wisely applied. Rule 21.11 provides for the control of money recovered.

(d)

To ensure that the interests of all dependants entitled to a possible share in the settlement are properly defined and protected; see para.7 of the Practice Direction….”

The Order for anonymity was sought under CPR 39.2 which, so far as material, provides:

“(1)

The general rule is that a hearing is to be in public. …
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness”.

Applications under CPR 20.10 are normally held in public. But counsel inform me that there has been an increase in the number of applications for anonymity. In In re Guardian News and Media Ltd [2010] 2 WLR 325; [2010] UKSC 1 ("Guardian") para 22 Lord Rodger stated the general rule, which applies to personal injury cases as to other cases:

“In the United Kingdom, until the recent efflorescence of anonymity orders, the general rule both in theory and in practice was that judicial proceedings were held in public and the parties were named in judgments. Their names would also be given in newspaper reports and in the law reports. That is still usually the position – as can be seen from the frequent press reports of, say, employment tribunal hearings and decisions where details of personal and sexual relationships among the warring parties are a common feature”.

In para 2 he said:

“the practice of referring to parties by initials has increased at all levels in recent years. Even assuming that the use of initials was justified in many cases, the present appeals show that an order ("anonymity order") may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it. This happens despite Sir Christopher Staughton's warning, in R v Westminster City Council, Ex p P, (1998) 31 HLR 154, 163, that "when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant." Lord Woolf MR quoted the warning with approval in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E.”

The facts of the present case can be stated only in general terms. To do otherwise would defeat the purpose of the anonymity order that I have made. The Claimant is still a child. His claim was for negligence relating to treatment provided at the hospital managed by the Defendant. His disabilities are fortunately much less than in other cases which have come before the courts, and that is in part the reason why anonymity is sought. It is expected that he will need care for the rest of his life, but it is also expected that he will be of full capacity when reaches the age of 18. It follows that he has an awareness of his condition that makes him more sensitive to it than some other claimants would be. It also follows that even if his money is in a trust for him, it will be a bare trust, so that he will, if he wishes, be able to require the money to be paid to him. He will also be able to participate in normal social life to a greater extent than some other claimants. For these reasons he will be more vulnerable than other claimants. There are means by which the financial interests of claimants under a disability may be protected for the whole of their lives, if they lack capacity. These are set out in CPR 20.11. But a claimant who has capacity, or will have it at the age of 18, will not be protected in this way. He may became a target for those who would wish to profit from his money or deprive him of it.

The sum of money which is the subject of this settlement is substantial. It is information that the Claimant is to receive so large a sum of money that is sought to be protected by the anonymity order. In the present case the application has not been based on the sensitivity of any medical or other private information.

One of the purposes of these proceedings for approval is as stated in sub-para (c) of para 5 above: to ensure the money paid to the claimant is looked after and wisely applied. If the naming of a claimant will make him vulnerable to losing the money to fortune hunters or thieves, then it follows that the purpose of the approval hearing will be defeated.

The requirement that there be open justice now rests on two bases. The oldest basis is that of the common law, as set out in cases such as Scott v Scott [1913] AC 417, as noted in Guardian para 23. Another basis is the ECHR. In Scott v Scott the justification contemplated for any derogation was not the right to private life of any of the parties. The derogation in question there was a hearing in private, but the same principles apply to anonymity. As Lord Haldane put it, in the passage starting at p438:

“I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.”

Art 6 may add nothing. No mention of Art 6 was made in Guardian. It may be that Art 6 would not apply to applications under CPR 21.10. That would be so if such applications do not involve “the determination of [a party’s] civil rights and obligations: Y v HM Attorney General [2003] EWHC 1462 (Ch). I have heard no argument on this, and say no more about it.

In Guardian the justifications contemplated for any derogation from the principle of open justice include respect for private life. The reason, and the basis, for the court’s jurisdiction to make anonymity orders was explained as follows:

“29.

In fact, however, in these cases the courts have gone further: they have not only used initials in their judgments but have made anonymity orders addressed to other people - in effect, to the press. Having the power to make orders of this kind available is one of the ways that the United Kingdom fulfils its positive obligation under article 8 of the Convention to secure that other individuals respect an individual's private and family life...

30 To comply with article 8, United Kingdom law must have a remedy of this kind available for use in appropriate cases... In In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, ... speaking for all members of the appellate committee, Lord Steyn affirmed, at p 605, para 23, that the court did have jurisdiction to make an order of this kind and that "the foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR." More recently, in In re British Broacasting Corpn [2009] UKHL 34; [2009] 3 WLR 142, 161, para 57, Lord Brown of Eaton-under-Heywood indicated that the powers of the High Court to make such an order "arise under section 6 of the [Human Rights Act 1998] read in conjunction with section 37 of the [Senior Courts Act 1981]."”

In para 34 Lord Rodger stated that by making anonymity orders

“the courts have interfered with the article 10 Convention rights of the press to impart information which either is, or normally would be, available to them”.

The relevant parts of Arts 8 and 10 are:

"Article 8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society ... for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Article 10 Freedom of Expression

1 Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority …
2 The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, ... for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

Having considered how the court should balance the rights under the two articles, Lord Rodger concluded:

“In the present case M's private and family life are interests which must be respected. On the other side, publication of a report of the proceedings, including a report identifying M, is a matter of general, public interest. Applying Lord Hoffmann's formulation, the question for the court accordingly is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies M to justify any resulting curtailment of his right and his family's right to respect for their private and family life.”

There are therefore two questions for the court to consider before making an anonymity order based on the need to protect Convention rights. The first question is: are the Art 8 rights (or any other Convention rights) of the applicant engaged at all? In the case of a claimant in a personal injury action, his or her Art 8 rights will often be engaged, to a greater or lesser extent, because of the sensitivity of the medical and financial information under discussion. In the case of a defendant, that is much less likely to be the case. Defendants which are public authorities do not, in any event, normally have Art 8 rights, and are most unlikely to have them in respect of such claims.

If the Claimant’s Art 8 rights are engaged, then the second question for the court is: is there sufficient general, public interest in publishing a report of the proceedings which identifies the Claimant to justify any resulting curtailment of his right and his family's right to respect for their private and family life?

One argument commonly advanced for claimants, which is also advanced in this case, is the fear of intrusive media reporting. In the present case there is no specific evidence as to why that should be a real concern. I do not doubt that there is likely to be press reporting, as both counsel submitted. But there is no history of unduly intrusive reporting in this case, or any similar case to which I have been referred.

In Guardian at paras [62] and [72] Lord Rodger put that argument in its proper context. At para [62] he explained the importance of a name for reports of proceedings. And at para [72] he dealt with possible abuse as follows:

"72 … the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press. James Madison long ago pointed out that "Some degree of abuse is inseparable from the proper use of everything, and in no instance is this more true than in that of the press": "Report on the Virginia Resolutions" (1800), in Letters and Other Writings of James Madison (1865) Vol 4, p 544. … The possibility of abuse is therefore simply one factor to be taken into account when considering whether an anonymity order is a proportionate restriction on press freedom in this situation."

There is only one case decided since Guardian, to which I have been referred, and in which the court has considered anonymity in relation to a claim involving medical matters. That case did not concern an approval hearing. It is A (A minor) & Others v A health & Social Services Trust [2010] NIQB 108. It was a highly unusual claim for an alleged breach of duty in relation to IVF treatment by two children who were born with a skin colour different from that of their parents. The claim was dismissed on the merits. In that case Gillen J gave careful consideration to the application for anonymity in paras [39]-[44]. He excised from the judgment details of the case, and granted anonymity to protect the Art 8 rights of the claimants and their family (para [49], [51]).

Another case since Guardian in which anonymity orders have been considered is also from Northern Ireland. It is R A, Re Judicial Review [2010] NIQB 27, in which the court was asked to quash a decision of a District Judge who had refused to extend a reporting restriction in relation to the publication of the applicant’s name. The Court refused to quash the order (although that does not appear from the name of the case). Again the court gave detailed consideration to the question in a manner which is rarely found in cases where anonymity was granted before Guardian. The ground for refusing anonymity was that the applicant’s name had been disclosed earlier in the proceedings, so that the risk of harm to him would not be averted by an anonymity order: paras [6], [13] and [29]. If judges give judgments like these, Lord Rodger will not have occasion to say in the future that anonymity orders are being made “without the court considering in any detail what is the basis or justification for it” (see para 8 above).

The reasons given in Kaim Todner for adhering to the general rule of naming the parties to litigation apply to personal injury claims. They are set out at p977 as follows:

“… it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely.”

The need for public confidence to be maintained applies as much to the exercise of the court’s jurisdiction to protect the interests of children and other protected parties as any to other proceedings before the court. And in personal injury cases publicity is an important means by which exaggerated claims can be detected and deterred. Exaggerated personal injury claims are not infrequent. If there is publicity, then neighbours and relations of a claimant whose claim has been exaggerated may know that fact, and will be able to report it to the defendant, usually a hospital authority or insurance company. The risk of exaggerated claims may be smaller where the claims are made by children. And there is no suggestion of that at all in this case. But if anonymity became routine, then the risk would increase. And as was also said in Kaim Todner immediately before the passage cited above:

“The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases”.

In carrying out the balancing act required between Arts 8 and 10 (as explained in In Re S) the court must focus on the particular facts of each case.

In the present case I accept that there are factors which expose the claimant to a risk of interference with his private life. But I regard these factors as weak in this case. The size of awards of compensation is private information, but it is information of a kind that is very commonly reported, and the reports serve a useful function in keeping the public informed. The family’s concern about media intrusion is genuine, but there is nothing wrong with responsible reporting. There is no evidence in this case to give rise to a reasonable fear that there would be any other kind of reporting. A stronger point may be that the claimant has an awareness of his condition that makes him more sensitive to publicity than some other claimants would. But there is little explanation in the evidence of how significant that sensitivity may be.

I also accept that there is the risk that the purpose of the approval hearing will be defeated if the claimant is named, as explained in paras 9 and 11 above. This is a strong argument in the present case.

On the other hand, there is the general interest in publishing a report of these proceedings, including the name of the Claimant. That is the general interest that prevailed in Kaim Todner, and the general interest in naming claimants which is referred to in Guardian at para 62. There is no general public interest in naming the claimant in these proceedings which is based on any fact specific to this case.

I concluded that in the present case naming the claimant would create the risk that the purpose of the approval hearing would be defeated, for the reason given in para 11 above.