EGC v PGF NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Nicklin |
| Judgment Date | 19 July 2022 |
| Neutral Citation | [2022] EWHC 1908 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: QB-2022-002007 |
[2022] EWHC 1908 (QB)
THE HONOURABLE Mr Justice Nicklin
Case No: QB-2022-002007
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicola Newbegin and Madeline Stanley (instructed by Clyde & Co LLP) for the Claimant
Jeremy Hyam QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 14 July 2022
Approved Judgment
(Interim public judgment pending appeal)
This judgment deals with an application by the Claimant seeking the anonymisation of the parties in this litigation and corresponding reporting restrictions preventing the parties being identified (“the Anonymity Application”).
For reasons that are explained in a judgment handed down in private today, I have refused the Anonymity Application. In the ordinary way, that would lead to the publication of the judgment and the identification of the parties. However, the Claimant has sought permission to appeal. I have refused that application, as I do not consider that the proposed grounds of appeal have a real prospect of success and there is no other compelling reason why permission to appeal ought to be granted. The Claimant can renew his application for permission to appeal to the Court of Appeal. To preserve the position, pending any renewed application, the ring must be held. That means that my judgment refusing the Anonymity Application must remain private until such time as any appeal has been finally resolved. This shortened public judgment is to ensure that the Court explains as much about the Anonymity Application as is possible in the interests of open justice whilst ensuring that position is preserved pending any appeal.
I was strictly satisfied that the hearing on 14 July 2022 had to be heard in private. I explained my reasons at the hearing, but in summary, a public hearing would have immediately defeated the Anonymity Application mainly as a result of pre-existing media coverage.
A: The Parties
The Defendant is an NHS Trust that provides hospital and community healthcare in an area of the UK.
The Claimant is a doctor. He was employed by the Defendant.
B: Background to the dispute
The Defendant wishes to make limited disclosure of certain documents relating to the Claimant to a defined class of people (“the Confidential Information”). It notified the Claimant of its intention to do so in early May 2022. The Claimant has objected to this proposed disclosure.
C: The claim
The Claimant has commenced this civil claim seeking an injunction to prevent the proposed disclosure of the Confidential Information. The Claim Form seeks “ a declaration and injunction against the Defendant to prevent a breach of contract, breach of Data Protection Act 2018/GDPR, breach of confidence, misuses (sic) of private information and breach of Article 8.”
The Defendant agreed that it would not make any disclosure pending the Court's decision whether to grant an injunction. It is agreed between the parties that there is an element of urgency in resolving the question of whether the Claimant is entitled to an injunction.
D: The Anonymity Application
Prior to issue of the Claim Form, on 27 June 2022, the Claimant issued an Application Notice seeking orders anonymising the parties, for reporting restrictions to enforce the anonymity and corresponding orders limiting third party access to documents on the Court file (“the Anonymity Application”).
On 28 June 2022, I made an order directing that the Anonymity Action would be heard by a Judge in the week commencing 11 July 2022. I gave directions for the service of any further evidence in support of the Anonymity Application by the Claimant, and for evidence in answer by the Defendant. Pending the hearing of the Anonymity Application, I imposed temporary orders anonymising the parties, reporting restrictions and third-party access to the Court file. I granted the Claimant permission to issue the Claim Form using initials instead of the parties' names and giving the parties' addresses as care of their solicitors.
The Anonymity Application is made under s.11 Contempt of Court Act 1981, s.6 Human Rights Act 1998, and CPR 5.4A to 5.4D and 39.2 At the hearing, the Claimant sought an order in the following terms:
“(1) that the identities of the Claimant and the Defendant shall not be disclosed;
(2) there be substituted for all purposes of this case, in place of references to the Claimant by name and whether orally or in writing, references to ‘EGC’. Likewise the Defendant shall be referred to as ‘PGF NHS Trust’;
(3) that the Claimant and Defendant be described in all statements of case or other documents to be filed or served in the proceedings and in any judgment or order in the proceedings and in any report of the proceedings by the press or otherwise as ‘EGC’ and ‘PGF NHS Trust’ respectively;
(4) to the extent necessary to protect the Claimant's and Defendant's identities, any other references, whether to persons or places or otherwise, be adjusted appropriately, with permission to the parties to apply in default of agreement as to the manner of such adjustments;
(5) that the address of the Claimant and of the Defendant be stated in all statements of case and other documents to be filed or served in the proceedings as the address of the Claimant's and Defendant's solicitors respectively;
…
Court Files
(7) that the unredacted Claim Form and the unredacted Particulars of Claim be replaced by the redacted Claim Form and the redacted Particulars of Claim;
(8) the unredacted Claim Form and the unredacted Particulars of Claim are to be placed on the Court file marked ‘not to be opened without the permission of a Judge, Master or District Judge of the Queen's Bench Division’;
…
(10) that a non-party may not inspect or obtain a copy of either the unredacted Claim Form or the unredacted Particulars of Claim from either the Court paper files or digital files without the permission of a Master or High Court Judge. Any application for such permission must be made on 14 days' notice to the Claimant's solicitor, and the Court will effect service;
(11) the court's paper and digital files are to be retained by the Court and marked ‘ Anonymised’;
Reporting Restriction
(12) that reporting restrictions apply as to the disclosing of any information that may lead to the subsequent identification of the Claimant or Defendant. The publication of the name and address of the Claimant or the Defendant or of any member of the Claimant's immediate family is prohibited.
(13) that reporting restrictions also apply as to the disclosing of information contained in the documents, the confidential and private nature of which the Claimant is seeking to protect by these proceedings.
(12) that any non-party affected by this Order may apply on notice to all parties to have this Order set aside or varied…”
(1) Evidence
When issued, the Anonymity Application was supported by the witness statement of the Claimant's solicitor, Jane Lang, dated 27 June 2022. The grounds on which the Claimant sought anonymisation (and associated orders) were identified, and explained, by Ms Lang as follows.
i) Without these orders being granted, the bringing of the proceedings would defeat their purpose; in other words, the litigation process would destroy that which the Claimant seeks to protect. In particular, without appropriate restrictions to access to the Court file, the Confidential Information (or parts of it) would be open to public inspection and the confidentiality that the Claimant is seeking to protect thereby lost.
ii) It would be inevitable that, at any interim and/or final hearing, there would be need to discuss the confidential information in open court which would also threaten to destroy the confidence in the information. This was not a case where the Court would be able to adopt the expedient (as suggested in Various Claimants v Independent Parliamentary Standards Authority [2022] EMLR 4) of using confidential schedules to statements of case and witness statements to ensure that the confidential information does not enter the public domain as a result of the proceedings themselves.
iii) Anonymisation of the Claimant (and the making of associated orders to enforce that anonymity) are necessary to protect the Claimant's Article 2 and Article 8 rights.
Two further statements have been filed on behalf of the Claimant. The first was a further witness statement of Ms Lang, dated 4 July 2022. This exhibited some of the existing media coverage relating to the Claimant that had been located by a trainee solicitor who was tasked with identifying whether there was any reference to the Confidential Information in the public domain.
The second was a witness statement from the Claimant, also dated 4 July 2022. In this statement, the Claimant recounts the events and their impact on him. He had felt anxious and had disturbed sleep. He sought medical advice. The Claimant states that he did have suicidal thoughts, but that he had “ sufficient insight at the time not to go through with this”. He says that “ following further media interest … my condition rapidly deteriorated” and suicidal thoughts returned. Medication that was prescribed for the Claimant improved his mood. He is no longer taking any medication. In his witness statement, the Claimant stated:
“I am also most concerned about the effect of publication of [the Confidential Information] would have on me… If the contents… were to be made public, I would be devastated and I worry that I might find myself back in the same position in which I found myself…, when I contemplated suicide.
I am also worried that publicity about my application to prevent publication of [the Confidential Information] will have a similarly...
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