Full case report
JX MX v Dartford & Gravesham NHS Trust
Reference  EWCA Civ 96
Court Court of Appeal (Civil Division)
Judge Lord Justice Moore-Bick, Lady Justice Black, Lord Justice Lewison
Date of Judgment 17 Feb 2015
Open justice – anonymity orders – children – infant settlements – personal injury – CPR r21.10 – Article 8 – Article 14 – reporting the courts
C, now aged six, suffered very severe injuries at the time of her birth. Her life expectancy is limited and she will be a protected party even on reaching maturity. D agreed to settle C’s claim for negligence (brought by her mother and litigation friend, A), with damages consisting of a large lump sum and periodical payments.
Under CPR r.21.10(1) settlements involving children and protected parties must be authorised by the High Court. If settlement precedes issue, the application for authorisation should include a Part 8 Claim Form (CPR r.21.10(2)). CPR r.16 and paragraph 2.6 of the Practice Direction to Part 16 require that claim forms include the names of the parties.
As part of the application for approval of the settlement, C sought an anonymity order under CPR r.39(2), such that her identity would be withheld from the public indefinitely, and that non-parties would not be allowed access to the statements of case (under CPR r.5.4C).
The matter came before Tugendhat J ( EWHC 3956 (QB)). He considered there was insufficient evidence that anonymity was necessary and proportionate. The evidence put forward was a ‘formulaic’ witness statement expressing generic concerns which he did not consider objectively well-founded.
Tugendhat J ordered that C’s address (being that of A also) should not be disclosed, but declined to order anonymity. He considered that there was some confusion as to when and whether anonymity should be granted in infant settlement applications. As the matter would benefit from the guidance of the Court of Appeal, he therefore gave permission to appeal.
When should the courts grant anonymity to children or protected parties in settlement approval hearings?
Allowing the appeal and stating that the court should normally make an anonymity order in such cases unless it is satisfied that it is unnecessary and inappropriate to do so:
(1) Approval hearings, like other examples of the Court exercises its protective jurisdiction, do not lie outside of the constitutionally important principle of open justice. The tension between open justice and doing justice in the case mirrors (in Convention terms) the tension between the Article 8 rights of claimants and Article 10 rights of the press and the public.
(2) However, the nature of this specific function means that the public interest in seeing justice done can still be accomplished without disclosing a party’s identity. Such hearings, although essentially dealing with private business, should generally be in public, and anonymity will usually be sufficient to protect claimants.
(3) The requirement to have settlements approved is peculiar to children and protected parties. Other litigants are free to settle claims in private, but children seeking to settle claims have no such choice. Under Article 14 ECHR child/protected litigants are entitled to the same respect for their Article 8 rights as other litigants. Withholding the name of child claimants therefore mitigates to some extent the inevitable discrimination between different classes of litigants.
(4) Orders under s.39 of the Children and Young Persons Act 1933 will not usually be adequate, as they expire upon the child reaching the age of 18 (R (JC and RT) v Central Criminal Court  EWCA Civ 1777) and are not available to adult protected parties.
(5) In approval hearings under CPR r.21.10, the Court should normally make the anonymity order in favour of the Claimant without the need for any formal application, unless it is satisfied that it is unnecessary or inappropriate to do so. It is not necessary to identify specific risks in order to establish the need for protection.
(6) Such an order should prohibit publication of the name and address of claimants and their immediate families (and their litigation friends). The Press should be given an opportunity to make submissions before reporting restrictions are imposed. If anyone wishes to oppose an anonymity order being made, it must serve on the claimant a statement setting out the nature of its case. The judge should give a brief judgment explaining the reasons for the making of or refusal to make an order.
This judgment will do much to clarify anonymity of claimants in approval hearings under CPR r.21.10. The Court took the opportunity to set out the principles which should be applied in such cases which will be useful to practitioners and the judiciary alike.
Whilst stating that the usual course of action would be to make an anonymity order, the Court of Appeal was careful to underline that interference in the Article 10 rights of the Press and public must be strictly necessary and proportionate, and that derogations from open justice should be limited. Proceedings must still be in public as standard, and the Press will have an opportunity to make submissions opposing anonymity and reporting restrictions.
The Article 14 arguments appear to have tipped the balance: the Court was keen to emphasise that the protective jurisdiction falls within the scope of the open justice principle, but that where parties were compelled by law to bring their settlements before the Courts, the interference with litigants’ Article 8 rights represented by their identification (which is usually considered necessary for open justice) could not be justified.
The judgment (together with that below) indicate that the practice in many cases has been to issue a claim under the child’s name and then seek an anonymity order at the point of settlement. Point (i) of the general principles [see para. 35 CA judgment] states that the hearing should be listed for hearing in public under the name in which proceedings have been issued. However, if before proceedings are started it is intended to avoid the child’s identity entering the public domain it would seem prudent to seek permission at the start of proceedings to issue the claim in anonymised form (or issue the Part 8 claim form if the claimant is only before the court to seek approval of a settlement).
Fieldfisher LLP for the Appellant, the Respondent did not appear and was not represented. Colemans-Cutts for the Intervener (Personal Injury Bar Association), the Treasury Solicitor as friend of the court
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 22nd Edition of Clerk & Lindsell on Torts, published by Sweet & Maxwell. Further info here.