A (A Child) v Cambridge University Hospital NHS Foundation Trust
Reference:  EWHC 454 (QB);  EMLR 18
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 4 Mar 2011
Summary: Open justice - reporting - clinical negligence - child - settlement - approval - Children and Young Persons Act 1933 - section 39 - criteria for order prohibiting identification - order made under section 39 - question is whether sufficient general public interest in a report which identified the claimant to justify any resulting curtailmment of his and his family's right to respect for private life - no such general interest - risk object of proceedings would be defeated
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Instructing Solicitors: Attwters for the Claimant; Kennedys for the Defendant
C, now aged 7, was starved of oxygen at birth due to D’s negligence. He was severely incapacitated physically but mentally intact or substantially so. Upon an application for the court’s approval of a substantial settlement of C’s claim for personal injuries C sought an order under s 39 of the Children and Young Persons Act 1933 prohibiting identification of the Claimant as being the claimant in the case.
(1) What were the criteria the court should apply when considering an appliction for reporting restrictions under s 39 in such a case?
(2) Applying those criteria, should the court make an order and if so in what terms?
(1) The authorities before the Human Rights Act gave no clear guidance on how the court should approach a s 39 application, but the HRA now provided the basic framework. It requires the court to have regard to Art 10 of the Convention (freedom of expression) as well as to Art 6 (fair trial and open justice) and Art 8 (private life).
(2) Recent Court of Appeal guidance on anonymity orders, given in JIH v News Group, applied equally to orders under s 39 of the 1933 Act. The CA held that where the court is asked to grant anonymity on the ground that this is necessary under Article 8 the question is whether there is any sufficient general, public interest in publishing a report of proceedings which identifies the party to justify any resulting curtailment of his right or his family’s right to respect for their private and family life.
(3) An order under s 39 interferes less with open justice and freedom of expression than an anonymity order coupled with restrictions on acess to the court file and is therefore a more acceptable alternative, where some protection is necessary.
(4) In the present case an order was necessary to protect the rights of C and his immediate family. Time passes quickly and a report now would still be available in 11 or 12 years’ time when C became an adult. There was a risk that the object of the proceedings would be defeated by identification of the Claimant. As an adult his physical disabilities would result in vulnerability. If the sums of money at the claimant’s disposal as a result of this settlement were readily to be found on the internet there would be a risk of the claimant losing that money to “inappropriate friends, fortune hunters and even thieves”.
(5) There was no sufficient general, public interest in the publication of a reporting identifying C to justify the resulting curtailment of his and his family’s right to respect for their private and family life, and the risk of defeating the purpose of the proceedings (to ensure C received and kept the money necessary to compensate him for the personal injuries suffered).
The test adopted by the Judge, and drawn by him from the Court of Appeal’s judgment in JIH v News Group, has its origins in the Supreme Court’s decision in In re Guardian News and Media.
The use of s 39 of the 1933 Act to achieve the intended purpose here was later to be called into question on the grounds that s 39 does not or may not permit the court to prohibit online reporting: see MXB v East Sussex NHS Trust. Another point for consideration is that s 39 only permits a prohibition whilst the person remains a child. Its protection would expire on majority, even if the individual concerned remained vulnerable then – as the Judge held this claimant would.