In personal injury and clinical negligence cases involving significant sums of damages and particularly for claimants with very severe disabilities who are protected parties, we often consider whether anonymity orders are appropriate.
This article is a recap on where things stand with applications to the court for such orders in cases involving significant injury and damages awards.
The key guidance on this was set out in a Court of Appeal case decided in 2015 - JXMX v Dartford & Gravesham NHS Trust. The case involved an infant claimant who suffered significant brain injury at birth and would never have capacity to manage her own affairs.
When the case came to court for approval of the substantial settlement for the claimant’s case, her mother requested an anonymity order. The approval judge refused on the grounds that he did not consider there to be any evidence of a real risk of harm from the settlement being on public record or from it being heard in open court (as is usual). The consequence of this is that the press is able to attend and report on the settlement and have access to the full details of the claimant and damages recovered. At the time, the usual procedure was for a claimant seeking anonymity to make a formal application and give reasons why such an order should be made, but in this case the judge did not accept the reasons as sufficient to justify the order.
The claimant’s mother appealed the decision on this point and the matter went to the Court of Appeal. There was a great deal of interest in the case and various representations were made. The Court of Appeal held that in future, when dealing with approval hearings of this type, the court should normally make an anonymity order without the need for a formal application unless the court is satisfied that it is for some reason unnecessary or inappropriate to do so.
The Court of Appeal found that ‘the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy.’
This judgment means that in dealing with such approval hearings, a court will now normally make an anonymity order without the need for any formal application, drawn in such terms so as to prevent the publication of the name and address of the claimant, his or her immediate family and litigation friend. In order to ensure that the press still has the opportunity to report matters that are of public interest, it will maintain the right to attend any approval hearing. However, if the press feels anonymity should not be granted then the burden is on them to apply with reasons in support of the fact that such an order is unnecessary or inappropriate in that particular case.
The Court of Appeal provided some helpful guidance as to the approach to be taken in such cases, summarised as follows:
- The application and listing of the hearing will normally reflect the claimant’s details unless an anonymity order has been obtained earlier in the proceedings.
- In open court hearings the press and public have the right to attend – and the press to report on the case.
- If an anonymity order is made by the judge, then the press can still report on the case and settlement – but not the details listed above regarding the claimant.
- Documents available on the court record are only accessible by non-parties if they are anonymised.
- The court should invite / hear submissions on the issue before granting an order.
- The default position is that an order should be granted unless the judge is satisfied by the evidence that it is not necessary – and if the judge does reach that view, it should be set out in a judgment with those reasons.
- In any event a short judgment on the point should usually be given.
Once in place, an anonymity order should ensure that the claimant’s personal details are never revealed, even if the case and settlement are reported in the press.
Philippa Luscombe, a partner in the personal injury and clinical negligence team at Penningtons Manches, comments: “This guidance and position relates primarily to vulnerable protected parties with significant damages, but not exclusively. Generally the courts have to be satisfied that there is good reason not to grant such an order if it is requested by or on behalf of the claimant. Such orders are therefore worth considering on sensitive matters or where large damages are awarded and the claimant would not wish those details to be publicly available. This case was a big step forward in protecting claimants and clarifying the approach to be taken.”