H (A Healthcare Worker) v Associated Newspapers Ltd. & Ors

The court may restrain publication of information obtained through proceedings where disclosure would pre-empt the court’s determination and obstruct the due administration of justice. The restriction must remain proportionate to that purpose. Freedom of expression and press freedom carry substantial weight, particularly where publication concerns matters of genuine public interest. Administrative difficulty, public anxiety or resource implications alone do not ordinarily justify restraining publication. Confidentiality, patient welfare and the risk of deductive identification may justify anonymity where disclosure would trigger events defeating the proceedings. A restraint on identifying a healthcare worker’s speciality may nevertheless be unjustified where sufficient safeguards remain. A prohibition on soliciting information requires narrow drafting and must not impose an unnecessarily wide fetter on journalism.

H, an HIV-positive healthcare worker, brought proceedings against a health authority concerning a proposed patient-notification or lookback exercise. H sought to preserve the confidentiality of his identity and his patients’ records. The proceedings were issued anonymously, and an interim order restrained Associated Newspapers from publishing information capable of identifying H.

Associated Newspapers later sought to identify the health authority, H’s speciality and the approximate date of his diagnosis. Gross J varied the orders, permitting identification of the health authority but retaining restraints protecting H’s identity. H appealed against that variation, while Associated Newspapers challenged the remaining restrictions. The central issues were whether the orders could properly be made as incidents of the first action, how Article 10 interests should be balanced against confidentiality and patient welfare, and whether publication would pre-empt the court’s decision on the lookback exercise.

1. Appeal allowed to the extent indicated. The health authority was to remain identified only by the initial N. The restraint on publishing H’s speciality was removed. The prohibition on soliciting information was not restored. There was no order for the costs of the appeal.
2. The court had inherent power, as part of controlling proceedings and securing the due administration of justice, to restrain publication of information made available in or resulting from proceedings where publication would pre-empt the determination of the issues. That power was implicitly recognised by Civil Procedure Rules 1998, r 39.2. A third party with notice of such an order could be liable for contempt.
3. Freedom of expression and press freedom under Article 10 carried substantial weight. The proposed publication concerned matters of genuine public interest. However, H’s confidential HIV status, the confidentiality of patient records and the risk that publication of N’s identity would lead deductively to H’s identification were legitimate countervailing interests. The order was justified only so far as necessary to prevent pre-emption of the first action.
4. The court rejected reliance on administrative inconvenience and the drain on public resources as an independent basis for restraining publication. Those consequences were part of the price which might have to be paid for freedom of expression. They were relevant insofar as disclosure could cause patient alarm or trigger events defeating the pending determination.
5. Disclosure of N’s identity would probably lead to enquiries, patient reassurance measures and possible disclosure of H’s identity. The anonymity order was therefore appropriate. By contrast, disclosure of H’s speciality did not create a sufficient risk of identification once the other restraints remained in force, and its publication would assist legitimate public debate.
6. The order restraining solicitation was too wide. Such a restriction was a particularly serious fetter on freedom of expression and could be justified only by a tightly drawn order addressing an identified risk.
7. H was required to make available records reasonably required for evaluation of the proposed exercise, but N could not disclose or act upon them without H’s permission or the court’s permission.

• Court of Appeal (Civil Division): H (A Healthcare Worker) v Associated Newspapers Ltd. & Ors [2002] EWCA Civ 195. Appeal allowed to the extent indicated; leave to appeal to the House of Lords refused.
• Queen’s Bench Division: Gross J set aside the earlier orders and permitted publication of the health authority’s name, while retaining restraints protecting H’s identity and personal details.
• Interlocutory orders: Master Leslie granted anonymity in the first action, and Scott Baker J granted an injunction in the second action restraining publication and solicitation of information capable of identifying H.