LK v Sandwell & West Birmingham Hospitals NHS Trust

An anonymity order under CPR 39.2 requires proof that non-disclosure is necessary to protect the interests of the relevant party. Consent, or the fact that anonymity orders are sometimes made in personal injury settlements, does not justify the order.

An application should be supported by evidence and argument addressing necessity and the guidance in the Supreme Court authorities. The court must assess the position of each party separately. Protection of a vulnerable claimant may justify anonymity, but the identity of a public-body defendant should ordinarily remain public unless necessity is demonstrated.

This was an application to approve the settlement of a substantial personal injury claim brought by a protected party through a litigation friend. The claimant was expected to remain dependent on carers, and part of the settlement was to be paid to family members who had provided care.

The claimant sought orders preventing disclosure of the claimant’s identity and particulars capable of identifying the claimant, and also preventing disclosure of the defendant hospital trust’s identity. The defendant took a neutral position. The central issue was whether either order was necessary under CPR 39.2.

1. Claimant’s anonymity. The court held that the test under CPR 39.2 was necessity, not convenience or consent. Having considered the evidence concerning the claimant and the litigation friend, the judge was satisfied that non-disclosure was necessary to protect their interests. The claimant and litigation friend were therefore to be referred to by initials, and particulars capable of identifying the claimant were not to be disclosed.
2. Evidence and argument. Applications under CPR 39.2 should be supported by evidence and argument directed specifically to the necessity of anonymity. The argument should be provided separately from the approval advice and should address the recent Supreme Court guidance. Evidence need not always take the form of a separate witness statement or affidavit, but the court must have sufficient material to conduct the required assessment.
3. Defendant’s identity. The general possibility that identifying a defendant might identify the claimant was insufficient. On the material available, that connection was speculative, and the judge was not satisfied that concealing the hospital trust’s identity was necessary. The order was therefore refused in respect of the defendant.
4. The public has a legitimate interest in knowing which hospital trusts face or settle substantial claims. Although there may be cases where anonymity for a defendant is necessary, such cases should be rare. The court stressed that the observations were not intended to determine future applications because detailed submissions on the Supreme Court authorities had not been made.

Not stated in the judgment.