Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust
| Jurisdiction | England & Wales |
| Judge | Mr Justice Martin Spencer |
| Judgment Date | 08 March 2019 |
| Neutral Citation | [2019] EWHC 552 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ17C00300 |
| Date | 08 March 2019 |
[2019] EWHC 552 (QB)
Mr Justice Martin Spencer
Case No: HQ17C00300
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Miss Susan Rodway QC (instructed by Shoosmiths LLP) for the Claimant
Mr Charles Feeny (instructed by Browne Jacobson LLP) for the Defendant
Hearing dates: 25 th and 26 th February 2019
Approved Judgment on anonymity
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction and Background
In this matter in which the Claimant seeks damages for psychiatric injury arising out of the stillbirth of her daughter on 27 May 2013, an application has been made for anonymity on the part of the Claimant. The trial was listed to start on Friday, 22 February 2019 and Miss Rodway QC indicated that she would be making the anonymity application. The application was made on Monday, 25 February 2019 but I “parked” the application to enable the Press Association to be served with the notice. On 26 February, I received submissions in writing from the Press Association and Miss Rodway resumed her application. Having heard argument, I refused the application and these are the reasons for that decision.
The brief background facts are that the Claimant, who is Polish, and was born on 26 September 1980, moved to England in July 2004 and soon thereafter met and formed a relationship with Mark Smith. They married on 28 July 2007. They always planned to have a family and moved from London to Lincolnshire where they were able to purchase a large property which could accommodate their family.
In about October 2012, the Claimant discovered that she was pregnant and her first booking appointment at the hospital was on 24 October 2012. A 12 week scan on 2 November 2012 gave an estimated date of delivery of 15 May 2013. A further scan on 28 December 2012 revealed that the baby was a girl and the Claimant and her husband were overjoyed. The Claimant had set her heart on having a daughter. They agreed a name for the baby, Megan, decorated and prepared a nursery for the baby and prepared themselves for the baby's birth.
A membrane sweep was carried out at 40 weeks' gestation on 15 May 2013 and a second membrane sweep was carried out a week later on 22 May 2013, neither of which precipitated labour. Therefore, the Claimant was admitted to the Defendant's hospital on 26 May 2013 for induction of labour. This was now term +10. At 01:00 in the early hours of 27 May 2013, a CTG trace was started which sadly revealed that there was no heartbeat and in fact the baby had died in utero. The labour had to proceed, it lasted some 18 hours, the baby was delivered by forceps and was stillborn. The Claimant was discharged the following day, 28 May 2013.
Liability for the stillbirth of the baby has been admitted by the Defendant and it is further conceded that the Claimant is entitled to damages to represent her loss arising out of the fact that the pregnancy was not brought to a successful conclusion. However, the Claimant also seeks substantial damages for what is claimed to be a pathological grief reaction combined with depression, which has proved intractable.
In December 2014, the Claimant fell pregnant again with an estimated date of delivery of 12 September 2015. This time the baby was a boy and the child was delivered by elective caesarean section on 1 September 2015. A further child, also a boy, was delivered on 8 May 2018. It is part of the Claimant's case that she suffers from pathological separation anxiety in relation to both her children, as a result of her psychiatric condition consequent upon the stillbirth of Megan.
The Application for Anonymity
In support of the application for anonymity, the solicitor with conduct of the claim on behalf of the claimant, Ms Kiran Deo, has made a statement in which she has stated that the claim, involving substantial damages and a schedule of loss exceeding six million pounds is one which is bound to attract publicity and the interest of the press. Miss Deo goes on to say:
“10. One of the consequences of the Claimant's illness is that she now suffers from disabling separation anxiety and has to have her two young sons in her sight at all times …
11. The claim has already had a substantial impact on the Claimant's children and has put a significant amount of added pressure on the Claimant's marriage. There is also a definite risk of suicide. Having to relive and discuss such painful past events and for those events to be shared with the public in such a way that the family can be identified will be very difficult and could easily lead to irreparable damage to the family unit. This risk of interference with private family life, which is self-evident, can be alleviated with the making of an anonymity order.
12. Part of the Claimant's objective for bringing an action against the Defendant was to try and achieve justice for what has happened and to ensure the Defendant is held accountable for the mistakes that have been made. However, I would respectfully argue that the public interest can be served without the need for disclosure of the Claimant's identity.”
Supplementing Miss Deo's statement, Miss Rodway QC, who represents the Claimant, has argued that the principle of open justice is satisfied by the Defendant being identified without identification of the Claimant. She submits that the trial includes matters of a deeply personal and private nature concerning the Claimant's mental health, her relationship with her two children, her intimate medical history and her past suicidal ideation which included thoughts of ending her life as well as that of her son. Although she is not a protected party she is described as a “highly vulnerable individual” and the interests of her young children should, it is submitted, be weighed in the balance. It is submitted that publication of the Claimant's identity will serve no useful public purpose but will risk considerable further harm to the Claimant's already precarious mental health and harm to her children and family. Personal privacy is said to be all important to the Claimant such that she changed jobs because her work colleagues were aware of the stillbirth of the Claimant's daughter and she then concealed this background from her new employers and work colleagues. She avoids interaction with strangers.
Miss Rodway further submits as follows:
“iv) In the current climate of swift and widespread dissemination via social media, there is always the risk that some individuals may react in an extreme and negative way to parts of the evidence … it is not fanciful to consider her receiving harmful abuse which would have repercussions for the Claimant and her family. There is also the risk, knowing that the Claimant is Polish, this could extend to racial abuse;
v) The publication of the Claimant's identity would necessarily identify her children. Public knowledge of the facts of their mother's mental health issues risks real harm to them. In addition it would provide the opportunity for her children, at a later stage, to discover and read facts of the case concerning them which would be likely to cause them considerable harm and distress;
vi) If the Claimant is awarded damages, the revelation of her identity would also potentially expose her and her family to unwanted attention from strangers, potential unscrupulous attempts to persuade her to invest unwisely or begging letters pleading for financial help;
vii) The principle of open justice can readily be met in the present case without the need to identify the Claimant or her family.”
When the application was made at the start of the trial, I adjourned the application and ordered that it should be served on the Press Association to give them the chance to consider the application and make any submissions they wanted to in response. On the morning of 25 February 2019, I received written submissions by the Press Association which, whilst acknowledging that the Claimant's Article 8 ECHR rights are engaged in this case, argued that these rights are to be weighed against the Article 10 rights of the press. Having made submissions in relation to the legal principles and previous decisions, which I consider later in this judgment, the Press Association submitted that anonymity orders in cases where the party seeking them is not a protected party should only be made in exceptional circumstances and where necessary in the interest of the administration of justice. They submit that the order sought in this case would represent a departure from the previous jurisprudence and that the granting of anonymity would set an unfortunate precedent. They state:
“22. As signatories to the Independent Press Standards Organisation Code of Conduct, we submit many of the concerns raised by the application could be met by our responsibilities under that code, particularly those sections of the guidance relating to privacy, children, suicide and intrusion into grief or shock.
23. It is also submitted that many of the details of the case, especially those of a sensitive nature, would not necessarily need to be made public. Some parts of the evidence could, for example, be heard in private or protected by reporting restrictions.”
On that basis, the application is opposed.
The legal background
The starting point is the fundamental principle of common law that justice is administered in public and judicial decisions are pronounced publicly. This “open justice” principle is both integral to protecting the rights of the parties and also essential for the maintenance of public confidence in the...
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Upper Tribunal (Immigration and asylum chamber), 2020-03-19, [2020] UKUT 128 (IAC) (Hysaj (Deprivation of Citizenship:Delay))
...force of the open justice principle should not readily be denigrated from: Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB). The appellant was named in proceedings up to and before the Supreme Court. His personal history, including his fraudulent application for......
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