JXMX (A Child) v Dartford and Gravesham NHS Trust

An anonymity order in approval proceedings is a derogation from open justice and must be justified by necessity, not merely by consent, distress or general concerns about publicity. The applicant must identify specific facts giving rise to a real risk, consider less restrictive measures, and show that anonymity is proportionate. The court must protect the rights of the public at large, including the public interest in effective reporting, even where no media organisation objects. Applications should be made before issuing a non-compliant claim form or when the grounds for anonymity arise.

The claimant, a child, brought a personal injury claim against an NHS trust. At the hearing to approve a settlement under CPR r21.10, the claimant sought anonymity and restrictions on reporting. The evidence relied mainly on the family’s distress and a general concern that publicity about a substantial damages award might expose them to exploitation.

The court refused the anonymity order but prohibited publication of the claimant’s address. Anonymity was granted temporarily because permission to appeal had been given. The judgment considered the proper approach to anonymity applications in approval hearings, including the effect of open justice, public reporting and alternative protective measures.

1. Application and governing principle. A claimant seeking to dispense with the identification requirements in CPR r16 and Practice Direction 16 must apply before issuing a non-compliant claim form, or when the grounds for anonymity arise. An anonymity order is a derogation from open justice and from the rights of the public at large. The absence of opposition, or consent, does not relieve the court of its duty to apply the law.
2. Necessity and proportionality. The test applicable to reporting restrictions under section 4(2) of the Contempt of Court Act 1981 was applied in principle to anonymity orders. The court must ask whether there is a real and substantial risk requiring protection, whether anonymity would eliminate that risk, whether less restrictive means would suffice, and whether the risk should nevertheless be tolerated when competing public interests are balanced.
3. Evidence required. Generalised concerns about distress, vulnerability or possible exploitation are insufficient. The applicant should identify specific facts, the persons or circumstances creating the risk, and the alternative measures considered. The claimant’s severe disabilities, professional management of the settlement funds, continuing adult care and responsible parents meant that the asserted risks were not objectively established and, in any event, did not make anonymity necessary or proportionate.
4. Reporting and review. Anonymity may impede reporting of matters which the court intends to remain publishable. Any interlocutory anonymity order must be kept under review. The judge also reaffirmed the conclusion reached in CVB that an application for anonymity did not require notice under Human Rights Act 1998 section 12(2) or CPR r23, although notice to the Press Association was accepted as sensible practice.
5. The anonymity application was refused. Publication of the claimant’s address was prohibited. Temporary anonymity continued only until the appeal was determined, discontinued, or the time for appealing expired.

The judgment itself records no prior appellate decision. Permission to appeal was granted because there was a real prospect of success and uncertainty concerning anonymity applications in approval hearings. Temporary anonymity was ordered pending any appeal.