JX MX v Dartford & Gravesham NHS Trust & Ors

An order withholding a party’s identity derogates from open justice and may be made only where it is strictly necessary. The order must be no wider than is needed to achieve justice.

In an approval hearing for a child or protected party, a limited anonymity order will normally be necessary. The court must protect the claimant’s and family’s private and family life, since highly personal evidence is usually required and such claimants cannot settle without court approval. Specific risks, such as dissipation of damages, strengthen the case but are not essential. The hearing remains public and reportable, subject to proportionate restrictions on identification and access to unredacted court documents.

The claimant, a severely injured child acting through her mother, settled a clinical-negligence claim against the hospital trust for a substantial lump sum and periodical payments. Court approval was required under CPR 21.10.

On the approval application, Tugendhat J refused to prohibit publication of the claimant’s name. He protected the family’s address and granted permission to appeal: [2013] EWHC 3956 (QB). The claimant appealed, supported by the Personal Injury Bar Association. The Press Association intervened.

The central issue was whether an anonymity order was necessary to protect the claimant’s identity indefinitely while preserving open justice.

1. Appeal allowed. The judge had been wrong to refuse an order preventing publication of the names of the claimant and her parents.
2. Open justice is fundamental. Anonymisation restricts both that principle and freedom of expression. It is therefore permissible only where strictly necessary to do justice in the individual case, and the restriction must be the minimum consistent with that purpose. The issue is one of principle, not discretion, although an appellate court will give proper deference to the first-instance assessment.
3. Approval hearings for settlements by children and protected parties remain within the open-justice principle. They nevertheless have an essentially protective character. The court will usually consider highly personal material about injuries, medical condition and future care. Unlike adults with capacity, these claimants cannot settle privately. In most such cases, publication identifying the claimant would unjustifiably interfere with the claimant’s and family’s Article 8 rights. A specific risk of asset dissipation or exploitation is an additional reason for protection, but is not a precondition.
4. Accordingly, although each case must be considered individually, the court should normally make an anonymity order in approval proceedings unless satisfied that it is unnecessary or inappropriate. The hearing should remain public, with the press and public able to attend and report it. The press must have an opportunity to make submissions.
5. The order should normally prohibit publication of the names and addresses of the claimant, immediate family and litigation friend, and restrict non-party access to unredacted court documents. An order under section 39 of the Children and Young Persons Act 1933 was inadequate because it ends when the child reaches majority and is unavailable for adult protected parties.
6. The judge should give reasons if anonymity is withheld and should normally give a brief anonymised judgment explaining the claim and the approval decision for the press.

• Court of Appeal (Civil Division) — allowed the claimant’s appeal and held that an anonymity order should have been made: [2015] EWCA Civ 96.
• High Court, Queen’s Bench Division — Tugendhat J refused to prevent publication of the claimant’s name, but protected the family’s address and granted permission to appeal: [2013] EWHC 3956 (QB).