Zeromska-Smith v United Lincolnshire Hospitals NHS Trust

The open justice principle requires hearings and judgments to identify the parties unless anonymity is necessary. An adult litigant of full capacity who voluntarily brings a claim cannot generally obtain anonymity merely because the evidence concerns intimate psychiatric and family matters, or because publicity may cause distress. Anonymity may nevertheless be ordered in truly exceptional circumstances where a specific and compelling risk makes it necessary. The court must impose no wider restriction than required. Applications should normally be made and served on the press well before trial, since the decision may affect settlement.

The claimant brought a claim for psychiatric injury and associated loss arising from the admitted clinical negligence resulting in the stillbirth of her daughter. Shortly before trial, she applied for anonymity, relying on the sensitive medical evidence, the risk to her mental health, and possible harm to her children and family. The Press Association opposed the application. The central issue was whether anonymity was necessary under the common-law principle of open justice and Civil Procedure Rules 1998, rule 39.2, despite the claimant being an adult of full capacity who had chosen to litigate.

1. The application for anonymity was refused. The fundamental common-law rule is that justice is administered in public and judicial decisions are pronounced publicly. The exceptions depend on necessity, not convenience or the judge’s general discretion. This principle is reflected in Civil Procedure Rules 1998, rule 39.2(1), (3) and (4).
2. Identification of the parties is an important aspect of open justice. Publishing the defendant’s name while withholding the claimant’s name would materially diminish the public and press interest in the proceedings. The claimant’s psychiatric condition, intimate medical history, family relationships and possible publicity-related distress did not make anonymity necessary.
3. JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 was confined to approval hearings involving children and protected parties. Such hearings have a protective character, and anonymity will ordinarily be appropriate because those claimants cannot settle without court approval. That reasoning did not extend to an adult of full capacity who chose to bring ordinary adversarial proceedings.
4. ABC v St George’s Healthcare Trust [2015] EWHC 1394 (QB) illustrated that the general rule is not absolute. It did not assist this claimant because the anonymity order there rested on wholly exceptional and specific harm to a child who might discover a serious inherited medical risk through publicity. The circumstances here were inherent in the nature of the claim and did not reach that threshold.
5. Applications in non-approval cases should ordinarily be made and served on the Press Association well before trial. This permits proper representations and may inform a claimant’s decision whether to settle. The court should not assume that a late application will be entertained or granted where the defendant is neutral.