JX MX (by her mother and litigation friend AX MX) (Claimant/Appellant) v Dartford & Gravesham NHS Trust Personal Injury Bar Association and Another (Interveners)

JurisdictionEngland & Wales
JudgeLord Justice Moore-Bick:
Judgment Date17 February 2015
Neutral Citation[2015] EWCA Civ 96
Docket NumberCase No: B3/2013/3735
CourtCourt of Appeal (Civil Division)
Date17 February 2015
Between:
JX MX (by her mother and litigation friend AX MX)
Claimant/Appellant
and
Dartford & Gravesham NHS Trust
Defendant/Respondent
Personal Injury Bar Association

and

The Press Association
Interveners

[2015] EWCA Civ 96

Before:

Lord Justice Moore-Bick

Vice-President of the Court of Appeal, Civil Division

Lady Justice Black

and

Lord Justice Lewison

Case No: B3/2013/3735

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Mr. Justice Tugendhat

[2013] EWHC 3956 (QB)

Royal Courts of Justice

Strand, London, WC2A 2LL

Miss Elizabeth Anne Gumbel Q.C. and Mr. Henry Witcomb (instructed by fieldfisher LLP) for the appellant (acting pro bono)

The respondent did not appear and was not represented

Mr. Robert Weir Q.C, and Mr. William Latimer-Sayer (instructed by Colemans-Cutts) for the intervener

Mr. David Barr Q.C. (instructed by the Treasury Solicitor) as friend of the court

Hearing date: 3 rd December 2014

Lord Justice Moore-Bick:
1

This is the judgment of the court.

2

This appeal raises an important question relating to the principle of open justice and the exercise of the court's power to withhold from the public the names of parties to litigation, a practice commonly referred to as "anonymisation". It arises in the context of an application for approval of a compromise of a claim for damages for personal injury brought by a child.

3

All settlements or compromises of claims by or against children must be approved by the court if they are to be binding on the parties, whether they are reached before or after proceedings have been started: see CPR 21.10. Approval is likewise required for the settlement or compromise of any claim by or against a protected party. If substantive proceedings are pending, approval is sought by application in those proceedings. If substantive proceedings are not pending, approval is sought using the Part 8 procedure. In either case the child or protected party appears in the court documents as claimant or defendant acting by a litigation friend.

4

The claimant in the present proceedings, who is now aged six, suffered very severe injuries at the time of birth. Her expectation of life is limited and she will be a protected party when she becomes an adult. Acting by her mother she brought proceedings in the High Court against the defendant hospital trust alleging negligence on the part of those who were responsible for her care. In due course the defendant agreed to settle her claim by paying a very significant sum in damages. The damages included both a large lump sum and substantial periodical payments. An application was then made to the court seeking approval of the settlement. The matter came before Tugendhat J., who was asked to make various orders designed to ensure that the claimant's identity was withheld from the public indefinitely. They included an order prohibiting persons other than the parties to the proceedings from obtaining copies of the statements of case from the court records. The judge declined to make an order preventing publication of the claimant's name, but he did direct that her address should not be disclosed. He gave permission to appeal and made orders protecting the identity of the claimant pending determination of any appeal. This is the claimant's appeal against the judge's dismissal of her application for anonymity.

Open justice

5

The principle of open justice has long been considered to be of the utmost importance. It is of ancient origin, but for present purposes it is unnecessary to trace its existence back beyond the decision of the House of Lords in Scott v Scott [1913] A.C. 417, a case involving a suit by a wife for a declaration of nullity on the grounds of her husband's impotence. The question for their Lordships was whether the court at first instance had jurisdiction to order a hearing in camera on the grounds of public decency and to punish as a contempt of court the subsequent publication of a transcript of the proceedings. Much of what was said assumed the existence of the principle of open justice and was directed to the circumstances in which the court might be justified in departing from it, but clear statements of its nature and importance can be found, in particular in the speeches of Lord Atkinson and Lord Shaw of Dunfermline. Lord Atkinson said at page 463:

"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect."

6

Lord Shaw, quoting Bentham, said at page 477:

""In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice." "Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." "The security of securities is publicity.""

7

Nonetheless, all their Lordships recognised that there are occasions on which the principle of open justice must give way to the need to do justice in the instant case. Thus, Viscount Haldane L.C. said at page 437:

"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. In the two cases of wards of Court and of lunatics the Court is really sitting primarily to guard the interests of the ward or the lunatic. Its jurisdiction is in this respect parental and administrative, and the disposal of controverted questions is an incident only in the jurisdiction. It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic. The other case referred to, that of litigation as to a secret process, where the effect of publicity would be to destroy the subject-matter, illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity."

8

The emphasis on necessity might suggest that the involvement as parties of children or those lacking mental capacity (now "protected parties") would not justify an order for the proceedings to be held in private, but in Scott v Scott their Lordships all accepted that cases of wardship, cases involving protected parties and cases involving secret processes provided exceptions, or apparent exceptions, to the general rule. The justification for excluding cases involving wards of court and protected parties was that the court was exercising a function of a kind essentially different from that involved in determining disputed causes. The passage from the speech of Viscount Haldane to which we have referred is to that effect and it is clear from the speeches of Lord Halsbury, Lord Atkinson and Lord Shaw that they were of a similar opinion. Thus, Lord Shaw said at page 483:

"The three exceptions which are acknowledged to the application of the rule prescribing the publicity of Courts of justice are, first, in suits affecting wards; secondly, in lunacy proceedings; and, thirdly, in those cases where secrecy, as, for instance, the secrecy of a process of manufacture or discovery or invention — trade secrets — is of the essence of the cause. The first two of these cases, my Lords, depend upon the familiar principle that the jurisdiction over wards and lunatics is exercised by the judges as representing His Majesty as parens patriæ. The affairs are truly private affairs; the transactions are transactions truly intra familiam; and it has long been recognized that an appeal for the protection of the Court in the case of such persons does not involve the consequence of placing in the light of publicity their truly domestic affairs."

9

A recent authoritative analysis of the principle of open justice, its historical importance and the jurisdiction of the courts to determine its scope, including the scope of any exceptions to it, is to be found in the judgment of Lord Reed J.S.C. in A v British Broadcasting Corporation [2014] UKSC 25, [2014] 2 W.L.R. 1243, in particular at paragraphs 23–41. In that passage Lord Reed recognised that there may be many different cases in which the court must have regard to the need to do...

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