JXMX (A Child) v Dartford and Gravesham NHS Trust

This case again raises the question whether the court should make an order that the claimant be identified by letters of the alphabet, and that there be other derogations from open justice (an anonymity order), in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement pursuant to CPR r21.10.

CPR r.16 and Practice Direction 16 para 2.6 provides that

"The claim form must be headed with the title of the proceedings, including the full name of each party. The full name means, in each case where it is known: (a) in the case of an individual, his full unabbreviated name and title by which he is known; …"

If a claim form is to be issued and served which does not comply with the requirements of PD 16 on identifying the claimant, or if an order is sought that the claimant be not identified at a later stage, then the (intending) claimant must apply to the court for a dispensation from those requirements, either before the claim form is issued, or when the grounds for anonymity exist.

In this case I refused to make the anonymity order sought, although I did order that there be no report of the address at which the claimant and her family live. The claimant is identified only by letters in this judgment because I gave permission to appeal. I granted the anonymity order sought until determination of any appeal, until discontinuance of any appeal, or until the time for serving notice of appeal expires without such a notice having been filed. If I had not done that, the purpose of any appeal would have been defeated.

One of the recent authorities on anonymisation is Guardian News and Media Ltd, Re HM Treasury v Ahmed [2010] UKSC 1; [2010] EMLR 15, [2010] 2 AC 697 at para [63] and following. At para [72] Lord Rodger said:

“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”

In the light of that in recent years I have given a number of judgments specifically on approval hearings which are available on Bailii: LK v Sandwell & West Birmingham Hospitals NHS Trust[2010] EWHC 1928 (QB); JXF v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB); [2011] Med LR 4, (2011) 117 BMLR 1; A Child v Cambridge University Hospitals NHS Foundation Trust [2011] EWHC 454 (QB); (2011) 120 BMLR 59, [2011] Med LR 247, [2011] EWHC 454 (QB), [2011] EMLR 18, 120 BMLR 59; MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB); CVB v MGN Ltd [2012] EWHC 1148 (QB) (which was not on an approval hearing). I have also given a number of judgment ex tempore (as I believe have other judges) but they are not publicly available (and may not even have been transcribed). One case on anonymity in a different legal context, but which is available and is based on adversarial argument, is HM Revenue & Customs v Banerjee [2009] EWHC 1229 (Ch). There Henderson J rejected an application for anonymity based on concerns expressed by the claimant as her vulnerability, which he did not accept to be well founded: para [38].

There are more recent judgments of high authority on the principle of open justice, including Jolleys (Ex Parte Press Association), R v [2013] EWCA Crim 1135 and R (on the application of M) v Parole Board [2013] EWHC (Admin); [2013] EMLR 23.

To these authorities I would add that the approach to the making or reporting restrictions under the Contempt of Court 1981 s.4(2) should apply in principle to any other derogation from open justice. In each case the test is one of necessity. In Independent Publishing Co Ltd v A-G of Trinidad and Tobago [2004] UKPC 26 at [69]; [2005] 1 AC 190) the Privy Council set that out in the following terms (for ‘the risk of prejudice to the administration of justice’ there must be read, in this context, ‘the risk of interference with the claimant’s privacy rights’, and or ‘a s.4(2) order’ there must be read ‘an anonymity order’) :

“in considering whether it was 'necessary' both in the sense under section 4(2) of the 1981 Act of avoiding a substantial risk of prejudice to the administration of justice and therefore of protecting the defendants' right to a free trial under article 6 of the Convention and in the different sense contemplated by article 10 of the Convention as being 'prescribed by law' and 'necessary in a democratic society' by reference to wider considerations of public policy, the factors to be taken into account could be expressed as a three-part test;

that the first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings, and if not that would be the end of the matter;

that, if such a risk was perceived to exist, then the second question was whether a section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be 'necessary' to take the more drastic approach;

that, thirdly, even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage value judgments might have to be made as to the priority between the competing public interests represented by articles 6 and 10 of the Convention ..."

Until recently applicants for approval hearings did not ask for anonymity. Claimants in actions for damages for personal injuries have generally been named. This has been so even where the claims arose out of injuries sustained at birth, where the evidence included the highly private facts of the medical treatment of the mother as well as of the child. I am informed by counsel, in this and in other cases, and by other Queen’s Bench judges, that applications for anonymity are now made in most approval hearings, if the order has not already been made by the Master.

Ms Gumbel submits that the reason for the increasing frequency of applications for anonymity orders is the availability of the internet. Information which was once ephemeral has now become recorded in permanent form, available to be found into the indefinite future with the use of a simple search engine. There is support for this submission by Sir James Munby P in J (A Child), Re [2013] EWHC 2694 (Fam) at paras [41]-[42].

In the present case I gave permission to appeal. It is not necessary that I should restate in this judgment the law as I have previously stated it in the judgments referred to.

Judges at first instance can be mistaken. The risk of error is greatly increased where, as in the cases I have mentioned above, the judgment is not the result of adversarial argument. The reason why there is no adversarial argument is that the defendant generally takes a neutral stance on the question of anonymity.

Advocates for claimants commonly present their submissions on the footing either that there is no issue (if no media organisation opposes the application), or that any issue there may be is one between the privacy rights of the claimant (under common law and under Art 8) and the freedom of expression rights of the press (again under common law and under Art 10). But that is not the correct analysis. The question at issue is whether the court should grant a derogation from open justice, and from the rights of the public at large. See A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 183B, where Lord Donaldson MR observed that it was an error to suppose that:

“newspapers have a special status and special rights in relation to confidential information, which is not enjoyed by the public as a whole. ...”

The fact that no media organisation opposes an application, or even the fact (if it be such) that there is consent to the order, does nothing to relieve the court of its obligation to apply the law on open justice for the benefit of the public at large. The authorities suggest that the contrary is the case: R v Westminster City Council, Ex p P, (1998) 31 HLR 154, 163 and JIH v News Group Newspapers Ltd[2011] EWCA Civ 42, para 21(7).

The judge’s decision whether or not to grant anonymity is made all the more difficult as a result of the circumstances in which the application usually comes to be made. Papers are usually delivered to the judge the night before a hearing. Sometimes they are voluminous. The main focus of the judge’s attention must be on whether or not to approve the settlement. Applications for anonymity are commonly made only at that stage, and sometimes not until the morning of the hearing. In the present case no family member was present, but members of the family are usually in court, and it is helpful and proper that they be present. The judge does not know what the family members have been led to expect as to anonymity, or as to the course the proceedings will take. But the judge can assume that a hearing in which the judge questions an application for anonymity is likely to add to the stress and suffering of the family. Almost all cases where the approval of the court is needed to a settlement are utterly tragic. For example, in this case the injuries were sustained at birth and are very severe. The court will feel the deepest sympathy for claimants and their family who struggle to cope against enormous challenges. The last thing a judge wants to do is to add to the suffering. But nevertheless judges must apply the law. It is in practice extremely difficult, if not impossible, to give to the application the close scrutiny which the court is required to give to it (JIH para 21(4)).

In the present case there are a number of witness statements made by the parents of the claimant. All of these but one were directed to supporting the claim, which was expected to come to trial this week. There is also a witness statement in support of the application for anonymity. This witness statement is formulaic: the litigation friend asserts in about one page her concerns that circumstances might exists to make it necessary for there to be a derogation from open justice. But she does not identify any specific facts which might give rise to a risk from which the claimant needs protection in the form of an anonymity order. Her main concern is the distress she and the family expect to suffer if there is publicity. I accept that these concerns are ones which are sincerely held. But they are no more than concerns. And the court is given no information as to what, if any, consideration may have been given to alternative measures (not involving derogation from open justice) to address these concerns.

Ms Gumbel summarised the evidence in her written submission as follows:

“The Claimant’s litigation friend is particularly concerned that any publicity involving the publication of the Claimant’s name will be damaging to her and her family. It is apparent from the documents before the Court on the approval hearing that this is a case in which the Claimant is a particularly vulnerable child who was very seriously injured as a result of the events surrounding her mother’s treatment shortly before her birth and her delivery. The Claimant lives at home with her mother and father and attends a special school, she has a team of carers and therapists working with her and one to one support at school. The Claimant has a case manager who is involved in recruiting and keeping in place the commercial care team. As set out in the statement of AXMX unfortunately she believes the Claimant’s family will be vulnerable to exploitation if it is known that the Claimant has had an award of damages amounting to several million pounds. Publicity about the amount of her award of damages could well lead to attempts to exploit her mother and father or other members of the family even though her damages will be managed by the Court of Protection. At the approval hearing the Court is asked to make an order to ensure that details of the case should not be subject to any publicity in which the Claimant or her family are identified. It is accepted this should not prevent publication of details of the case in as far as they are of interest but should not name the Claimant or provide means of identifying her.”

I queried in what way it is suggested the claimant or her family might be vulnerable to exploitation and by whom. In her oral submission Ms Gumbel in effect gave further evidence as to what she said was likely to happen if there were publicity. She gave examples of families who, she said, had received unsolicited mail, begging for a share of the damages award, from other families with disabled children who had not had the benefit of an award of damages.

It is not suggested that in the present case the locality in which the family lives exposes them to a particular risk of theft of the valuable equipment which the claimant needs. There is no evidence of particular circumstances which might make the family vulnerable to the demands of a particular family member, carer, or other person, who might unreasonably and unjustifiably ask for money to which they were not entitled. There is no mention of any other child or family member whose rights or interests need to be taken into consideration.

There is evidence in the present case from an educational psychologist instructed for the claimant. His evidence, which is not in issue, is that the Claimant may attain a level of general functioning of up to a 6 year old by the time she is adult. She has a very significant physical disability combined with severe learning disability. She is totally dependent upon others for all of her personal needs and requires very considerable support. She will be incapable of any form of employment and she will be unable to manage her own affairs. In spite of these difficulties she does go to school, but while there she needs full time support, for which special financial provision has been made in the Order giving effect to the settlement.

In other words, as I understand it, it is not expected that the Claimant will ever be without the company of a responsible adult to care for her. The money the subject of the settlement agreement will be managed by a professional Deputy. Her parents are responsible people who are able and willing to protect her in so far as any parents can. I cannot accept that the litigation friend’s expressed concerns about the vulnerability of the Claimant and the family are objectively well founded, and, even if they were, that the risks are such that a derogation from open justice would be either a necessary or a proportionate measure to address those risks.

There were present in court two journalists, as again is common for approval hearings. I invited them to make any submissions that they might wish to make. Mr Macmillan is a freelance journalist. He had not come to court prepared with anything to say. But in response to my invitation he said that he and his colleagues had no wish to cause distress to anyone. But they did want to report court proceedings. The old practice was for names to be used. Now almost every case is anonymised. In many cases journalists are not given copies of the orders or any other papers, and the anonymity orders make it difficult for them to apply to the court for copies from the file. The result is that the journalists cannot in practice report even those details of the case which the court might intend to be reportable. As explained in JIH at para [25]

“if the claimant is accorded anonymisation, it will almost always be appropriate to permit more details of the proceedings to be published than if the claimant is identified”.

Mr Macmillan’s spontaneous remarks are entirely consistent with the fears expressed by Lord Rodger at para [63] of the Guardian case:

“…even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique,… A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.”

There is a further difficulty, which arises from time to time, and which in fact arose in another approval hearing listed immediately after this hearing. An anonymity order had been made by a Master. As stated in JIH at para [21](9) “An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.” There are other dicta to the effect that derogations from open justice must be kept under review. But in practice it is again extremely difficult if not impossible for judges to do this.

In the other case I called for the witness statement which was referred to in the Order of the Master (it had not been included in the papers). It was produced to me in court. When I read it, it appeared to me to be as formulaic as the witness statement in support of the application in the present case. However, neither counsel nor the applicant had received any forewarning that I might wish to review the Master’s order (and I myself had not received a copy of the Master’s order until a few minutes before 10.30am). In these circumstances I decided that it was impossible fairly to conduct a review of the question whether the anonymity order should be continued, and I did not do so.

I was informed by counsel that Dingemans J had (in an unreported case) suggested that notice be given to the Press Association of a claimant’s intention to apply for an anonymity order, and that that had been done in this case. There is a practice direction in the Family Division, although not in the Queen’s Bench Division, and it is that that the claimant had followed. I would not dissent from this guidance as a matter of practice. Whether or not it makes a difference is something which may need to be investigated, although it is not obvious how any such investigation might take place.

In the case of application for non-disclosure orders, notice must be given, as provided in the Human Rights Act 1998 and JIH para [21](10). However, for reasons stated in my judgment in CVB I there held (at para [50]) that there was no requirement under HRA s.12(2) or CPR r23 for a claimant to give notice to an intended defendant or to anyone else of an application for an anonymity order derogating from CPR r.16.

Given the state of affairs described in this judgment, I granted permission to appeal because there is a real prospect of success, and in any event the uncertainty as to what judges should do in relation to anonymity applications in approval hearings is a compelling reason why an appeal should be heard.

Mr Porter indicated that his client might well not wish to appear on an appeal. That is the Defendant’s right.