EGC v PGF NHS Trust

Derogations from open justice, including anonymity, private hearings, reporting restrictions and limits on court-file access, are exceptional. They must be strictly necessary to secure the proper administration of justice and no more extensive than required.

In confidentiality claims, the court should consider less restrictive measures, such as confidential schedules or private treatment of particular evidence. Anonymity is justified only where identification itself would harm the administration of justice or engage sufficiently established Convention rights. A claimed threat to life requires clear and cogent evidence of a real and immediate risk. Where only Article 8 is engaged, it must be balanced against Article 10, giving substantial weight to open justice and public reporting.

The claimant, a doctor formerly employed by the defendant NHS Trust, sought an injunction to prevent disclosure of two documents containing confidential information. He also applied for anonymity, reporting restrictions and restrictions on third-party access to the court file.

The application relied on the need to preserve confidentiality and on alleged interference with the claimant’s rights under Articles 2 and 8 of the Convention. The defendant opposed the application, contending that less restrictive procedural measures could protect the information and that the proposed restrictions would substantially curtail reporting of a matter of public interest.

The central issues were whether anonymity was necessary to preserve the subject matter of the claim, whether the evidence established a real and immediate risk to life, and how any Article 8 interests should be balanced against open justice and Article 10.

1. The Anonymity Application was refused. The claimant failed to establish that anonymity was necessary to preserve the confidential information. The claim concerned a discrete challenge to disclosure of two documents and was at an early stage. The court could use confidential schedules and, if necessary, hear submissions about the documents in private.
2. Anonymity would not achieve the claimant’s principal objective. Because of pre-existing media coverage, identifying the claimant by role would lead to identification by name. Anonymity combined with a restriction on any information capable of identification would, in practical effect, prohibit meaningful reporting of the proceedings.
3. The Article 2 case failed. The evidence, including the expert report, did not demonstrate clearly and cogently a real and immediate risk that the claimant would attempt suicide. The threshold for engagement of Article 2 was therefore not met.
4. The Article 8 case also failed. The claimant had not shown that continuing the proceedings openly would cause the alleged adverse impact on his mental health. Professional reputation and criticism for bringing proceedings were not sufficient justifications for anonymity; such consequences were part of the price of open justice.
5. Even if Article 8 had been engaged, the substantial interference with Article 10 and open justice would have outweighed it. The claimant had not discharged the burden of proving that the proposed derogation was necessary by clear and cogent evidence.
6. A limited order under CPR 5.4C could restrict third-party access to confidential schedules. The court would later consider whether any part of a hearing needed to be private to protect the confidential material.

The judgment was an interim public judgment pending the claimant’s proposed appeal. Permission to appeal was refused, with liberty to renew the application to the Court of Appeal.