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CA delivers much needed guidance on granting anonymity at approval hearings
JX MX v Dartford Gravesham NHS Trust  EWCA Civ 96
In a landmark judgment handed down today the Court of Appeal have given guidance concerning the request for anonymity at approval hearings.
Approval hearings are required under Part 21 of the Civil Procedure Rules when cases are settled on behalf of children and adults who lack capacity. Such hearings are not required by adults who settle their claims. The concern had been that since approval hearings are public hearings at which details of the claimant’s injuries and settlement are made known that confidential information would fall into the public domain which may put vulnerable claimants at risk.
William Latimer-Sayer from Cloisters and Rob Weir QC from Devereaux Chambers acted on behalf of the Personal Injury Bar Association (PIBA) who intervened on the appeal.
PIBA’s submissions were accepted in full that the subject matter of approval hearings was essentially private business. Whilst the principles of open justice require approval hearings to be in public in accordance with the principles of open justice, historically the court had generally made exceptions in relation to wards of the court and those of unsound mind. Granting anonymity was no greater than necessary to protect interference with the claimant’s private and family life and to avoid discrimination when compared to other litigants who did not need to seek court approval of their settlements in open court.
In giving general advice for the future, the Court of Appeal confirmed that when dealing with approval hearings, anonymity should usually be granted on request without the need for formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. The order should be drawn in terms which prohibit the publication of the name and address of the claimant and his or her immediate family as well as the name and address of his or her litigation friend.
In effect the burden of showing that it is necessary to grant anonymity is reversed and it is now for the Press to prove that such an order is unnecessary or inappropriate.
The guidance is to be welcomed on behalf of claimants who previously had to jump through numerous hoops to justify seeking an anonymity order by explaining why their particular case was exceptional. The Court of appeal’s ruling accepts that many reasons why claimants desire anonymity are generic and may apply without needing to prove they exist in a given case. Of course, some claimants are happy to publicise their settlement and they can continue to do so however for those worried about how their community may react to the news of their settlement and do not want strangers knowing about their private business, they should be able to remain anonymous.
Until this appeal, there had been a wide disparity of approach between judges in different parts of the country. The radical departure from the existing system was advocated by PIBA to bring clarity and consistency to the law. It should lessen the burden on claimants and legal professionals at the end of cases which settle out of court. Likewise it should reduce costs. The Court of Appeal are to be commended for adopting the course they did and providing much needed guidance for practitioners without the delay and uncertainty that would have ensued had the matter been remitted to the Civil Rules Committee for consideration.
For judgement go here