Anthony Dixon v North Bristol NHS Trust

Derogations from open justice, including anonymity, private hearings, reporting restrictions and limits on access to court documents, require clear and cogent evidence that they are strictly necessary to secure the proper administration of justice. In confidentiality proceedings, the court should consider tailored protective measures, such as confidential schedules and private consideration of sensitive material, before anonymising the parties.

A claimed risk to life must be objectively verified and immediate. Evidence of possible deterioration in mental health, without a convincing demonstration of a real and immediate risk of suicide, does not engage Article 2. Where Article 8 is engaged, it must be balanced against Article 10, with substantial weight given to open justice and the public interest in identifying parties where identity is central to the proceedings.

The claimant, a surgeon formerly employed by the defendant NHS Trust, brought proceedings seeking to restrain disclosure to former patients of two documents arising from an investigation into his clinical practice. He relied principally on breach of confidence, together with contractual, data protection, privacy and Convention rights.

Before determination of the substantive claim, the claimant sought anonymisation of both parties, reporting restrictions and restrictions on third-party access to the court file. He argued that publicity would defeat the purpose of the proceedings and threaten his rights under Articles 2 and 8. The defendant opposed the application, relying on the extensive existing media coverage and the public interest in the litigation. The issue was whether the requested derogations from open justice were necessary and proportionate.

1. Application refused. The claimant failed to establish that anonymisation, comprehensive reporting restrictions or wider restrictions on court-file access were necessary to secure the proper administration of justice.
2. In confidentiality proceedings, the court must use the least restrictive measures necessary to protect the asserted confidential information. Confidential schedules, limited access to confidential material and, if required, private consideration of particular passages could protect the documents without anonymising the parties. The existing publicity meant that identifying the claimant as a colorectal surgeon would immediately defeat anonymity, while the proposed reporting restriction would substantially prevent meaningful reporting of the proceedings.
3. The Article 2 threshold was not met. The evidence did not demonstrate, convincingly and objectively, a real and immediate risk that the claimant would attempt suicide. The expert opinion was based substantially on a single assessment and incomplete medical records, lacked clarity about the relevant proceedings and did not adequately explain why refusal of anonymity would create the asserted risk. The evidence showed, at most, a possible deterioration in mental health and a fear that suicidal thoughts might recur.
4. The Article 8 case also failed. The proceedings did not concern the claimant’s right to practise or determine his professional reputation. Any criticism arising from public proceedings was ordinarily part of the price of open justice. The claimant had not shown that reporting these proceedings would cause a relevant interference with his Article 8 rights beyond information already in the public domain.
5. Even if Article 8 were engaged, the balance would favour Article 10 and open justice. The requested orders would effectively shield the proceedings from public scrutiny, while the claimant’s identity was central to the public interest in the case. A limited order under Civil Procedure Rules 1998 restricting third-party access to confidential schedules was justified.

First-instance decision. The judgment was initially handed down in private pending a possible appeal and was later handed down publicly after the claimant confirmed that he did not intend to appeal.