Radical overhaul of anonymity in approval hearings

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By Sarah Fraser Butlin

The Court of Appeal have just handed down judgment in the key case of JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96.  This fundamentally changes the approach to anonymity in approval hearings.

The underlying case was a claim by a child, through her litigation friend, for injuries sustained at birth.  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.  Unusually, the application for anonymity had been refused by Tugendhat J because the witness statement of her mother had evinced no specific reasons for concern and was “formulaic”. 

Intriguingly the claimant only sought to argue that her case was indistinguishable from previous authorities where anonymity had been granted. The far more interesting argument came from the Personal Injury Bar Association as interveners, for whom William Latimer Sayer acted.  They argued that normally the identity of the claimant should not be disclosed in reports of approval hearings. They put forward three justifications for this:

  1. the court’s function when approving settlements is essentially protective and fundamentally different from its normal function of resolving disputes between the parties to proceedings;
  2. the publication of highly personal information about the claimant’s medical condition involves a serious invasion of his and his family’s right to privacy; and
  3. unlike adult litigants of full capacity, who are free to settle their claims in private, children and protected parties have no choice but to seek the court’s approval of their settlements in proceedings open to the public and are thus placed at a significant disadvantage to other litigants in obtaining respect for their private and family lives, contrary to article 14 of the Convention.

The key issue for the court was whether it was necessary in these cases to derogate from the principle of open justice which was of “utmost importance … [and] of ancient origin” (para 5). In considering this, the Court drew parallels with wardship proceedings and recognised that “The function which the court discharges at an approval hearing is essentially one of a protective nature, as it was when it exercised the function of parens patriae on behalf of the Crown in relation to wards of court and lunatics. The court is concerned not so much with the direct administration of justice as with ensuring that through the offices of those who act on his or her behalf the claimant receives proper compensation for his or her injuries.” (para 29).

However the Court went further than simply recognising a willingness to protect the interests of claimants and protected parties (para 29) and that each application had to be considered individually to determine whether it was necessary to do justice to the claimant and his or her family by ensuring respect for their family and private lives (para 31). The Court ultimately reached the conclusion that:

34. In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend.

I would suggest this goes far beyond simply considering each case on its facts but rather acts as a presumption that anonymity will be given, without even the need for an application by the claimant.  This fundamentally changes the landscape of anonymity orders. It will now be for the press to establish that an anonymity order should not be granted, rather than vice versa.  Article 8 and 14 rights (rights to a private and family life, read together with the right of non discrimination) have been taken very seriously and weighed more heavily in the balance than Article 10 (freedom of expression).

The Court did not ignore the needs of the press.  They recognised that they have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, they held that “the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made.” (at para 34).

For practitioners, the key guidelines can be found in paragraph 35:

“With that in mind we suggest that the following principles should apply:

  1. the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
  2. because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;
  3. the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);
  4. the judge should invite submissions from the parties and the Press before making an anonymity order;
  5. unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;
  6. if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;
  7. the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.”