MXB v East Sussex Hospitals NHS Trust
Reference:  EWHC 3279 (QB)
Court: Queen's Bench Division
Judge: Tugendhat J
Date of judgment: 20 Jun 2012
Summary: Open justice - reporting - clinical negligence - child - settlement - approval - Children and Young Persons Act 1933 - section 39 - reporting online - anonymity - CPR 39.2(4) - CPR 5.4C - orders for anonymity and reporting restrictions made - orders prohibiting third party access to court file made
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Instructing Solicitors: Christian Khan for the Claimant; Capsticks for the Defendant
On an application for approval of the settlement of a claim by a minor for damages against an NHS Trust , the court was asked to make orders under s 39 of the Children and Young Persons Act 1933 prohibiting the identification of the child, and under CPR 5.4C(4) prohibiting third party access to the court file.
In further approval applications in separate actions applications were made for anonymit orders under CPR 39.2(4) and orders under CPR 5.4C(4) restricting access to the court file.
(1) Were orders of the kind sought on behalf of the claimants appropriate on the facts of the cases?
(2) What jurisdiction should the court exercise and what form of order should be made?
(1) Orders were appropriate. It was expected that the Claimant would have capacity at the age of 21. The evidence demonstrated it was necesary to avoid the Claimant’s identification to prevent the risk of the Claimant becoming the victim of those who would attempt to misuse the funds awarded.There was no sufficient general public interest in publishing a report of the proceedings which identified the Claimant to justify the resulting curtailment of the rights of the Claimant to respect for their private and family life, and the risk of defeating the purpose of the proceedings (to ensure the Claimant received and kept the money necessary to compensate the Claimant for the personal injuries suffered).
(2) Although the power to grant reporting restrictions contained in s 39 of the 1933 Act had been extended beyond newspaper reports to cover broadcasts, there was force in the argument that it does not extend to empowering a court to prohibit reporting online, or in a medium other than a newspaper or broadcast. In making the appropriate order it was better to act under CPR 39.2(4) and not to use the wording derived from s 39 or to refer to s 39 at all.
Per curiam. Parliament recognised in the Contempt of Court Act 1981 and the Defamation Act 1996 that reports of proceedings otherwise than in a newspaper required recognition. Section 4 of the 1981 At and s 15 of the 1996 Act both accorded protection to reports, without limiting the protection to reports in any specified medium. The submission that s 39 of the 1933 Act was more limited in scope was of obvious relevance to the criminal courts in which orders under s 39 are commonly made, and the Judge had drawn the judgment to the attention of those who might be concerned.
A judgment that highlights a potentially important limitation on s 39 of the 1933 Act. No doubt this will receive attention from the legislature, given the central importance of that provision in protecting children and young people against inappropriate publicity for their involvement in criminal proceedings. Meanwhile, civil practitioners are given a firm steer away from reliance on s 39, given that CPR 39.2(4) contains a similar power which appears to give jurisdiction for reporting restrictions to be imposed regardless of the medium used to report.