JXF v York Hospitals NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE TUGENDHAT,Mr Justice Tugendhat |
| Judgment Date | 04 November 2010 |
| Neutral Citation | [2010] EWHC 2800 (QB) |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ09X03016 |
| Date | 04 November 2010 |
[2010] EWHC 2800 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Tugendhat
Case No: HQ09X03016
Mr Simeon Maskrey QC (instructed by Penningtons Solicitors LLP) for the Claimant
Mr Philip Havers QC (instructed by Hempsons) for the Defendant
Hearing dates: 1 November 2010
Approved Judgment
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.
Mr Justice Tugendhat:
Should the Court make an anonymity order in respect of the Claimant when approving a compromise by or behalf of a protected party?
I did make such an order in this case, and stated that I would give my reasons later. These are they. The application was made in relation to a hearing under CPR 21.10 for approval of a settlement.
In this case the Claimant asked for an order that contained various provisions to ensure that his identity be not disclosed. These included that he be referred to only by the letters JFX in the documents filed with the Court, and that documents already filed be disclosed to third parties under CPR r5.4 only subject to appropriate adjustments. The Claimant had in his Application Notice also asked for the hearing to be in private, but Mr Maskrey did not pursue that, and it was held in public. The application is not opposed by the Defendant.
CPR 21.10 provides:
“(1) Where a claim is made—
(a) by or on behalf of a child or protected party; …
no settlement, compromise or payment (including any voluntary interim payment) and no acceptance of money paid into court shall be valid, so far as it relates to the claim by, on behalf of or against the child or protected party, without the approval of the court”.
The reasons for this provision are explained in the notes to the White Book (2010) 20.10.1 as follows:
“Rules 21.10.1 and 21.11 and the Practice Direction provide a comprehensive code the objects of which are:
(a) To protect the interests of children and protected parties. This may involve protecting the child from any lack of skill or experience of their legal advisers which might lead to a settlement of a money claim for far less than it is worth; see Black v Yates [1992] Q.B. 526; 4 All E.R. 722. (claim by child dependants for compensation greater than amount awarded by a foreign court).
(b) To provide means by which a defendant may obtain a valid discharge from a child or protected party's claim. At common law a contract of compromise out of court does not bind such a claimant unless it can be proved to have been for their benefit. No prudent defendant would wish to take a risk on this point. A judgment in proceedings or an order approving a settlement of proceedings under r.10 does bind the claimant child or protected party and gives the defendant a discharge.
(c) To make sure that money recovered by or on behalf of a child or protected party is properly looked after and wisely applied. Rule 21.11 provides for the control of money recovered.
(d) To ensure that the interests of all dependants entitled to a possible share in the settlement are properly defined and protected; see para.7 of the Practice Direction….”
The Order for anonymity was sought under CPR 39.2 which, so far as material, provides:
“(1) The general rule is that a hearing is to be in public. …(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness”.
Applications under CPR 20.10 are normally held in public. But counsel inform me that there has been an increase in the number of applications for anonymity. In In re Guardian News and Media Ltd [2010] 2 WLR 325; [2010] UKSC 1 (“Guardian”) para 22 Lord Rodger stated the general rule, which applies to personal injury cases as to other cases:
“In the United Kingdom, until the recent efflorescence of anonymity orders, the general rule both in theory and in practice was that judicial proceedings were held in public and the parties were named in judgments. Their names would also be given in newspaper reports and in the law reports. That is still usually the position – as can be seen from the frequent press reports of, say, employment tribunal hearings and decisions where details of personal and sexual relationships among the warring parties are a common feature”.
In para 2 he said:
“the practice of referring to parties by initials has increased at all levels in recent years. Even assuming that the use of initials was justified in many cases, the present appeals show that an order (“anonymity order”) may be made, often by consent of both parties, without the court considering in any detail what is the basis or justification for it. This happens despite Sir Christopher Staughton's warning, in R v Westminster City Council, Ex p P, (1998) 31 HLR 154, 163, that “when both sides agreed that information should be kept from the public, that was when the court had to be most vigilant.” Lord Woolf MR quoted the warning with approval in R v Legal Aid Board, Ex p Kaim Todner [1999] QB 966, 977D-E.”
THE FACTS
The facts of the present case can be stated only in general terms. To do otherwise would defeat the purpose of the anonymity order that I have made. The Claimant is still a child. His claim was for negligence relating to treatment provided at the hospital managed by the Defendant. His disabilities are fortunately much less than in other cases which have come before the courts, and that is in part the reason why anonymity is sought. It is expected that he will need care for the rest of his life, but it is also expected that he will be of full capacity when reaches the age of 18. It follows that he has an awareness of his condition that makes him more sensitive to it than some other claimants would be. It also follows that even if his money is in a trust for him, it will be a bare trust, so that he will, if he wishes, be able to require the money to be paid to him. He will also be able to participate in normal social life to a greater extent than some other claimants. For these reasons he will be more vulnerable than other claimants. There are means by which the financial interests of claimants under a disability may be protected for the whole of their lives, if they lack capacity. These are set out in CPR 20.11. But a claimant who has capacity, or will have it at the age of 18, will not be protected in this way. He may became a target for those who would wish to profit from his money or deprive him of it.
The sum of money which is the subject of this settlement is substantial. It is information that the Claimant is to receive so large a sum of money that is sought to be protected by the anonymity order. In the present case the application has not been based on the sensitivity of any medical or other private information.
One of the purposes of these proceedings for approval is as stated in sub-para (c) of para 5 above: to ensure the money paid to the claimant is looked after and wisely applied. If the naming of a claimant will make him vulnerable to losing the money to fortune hunters or thieves, then it follows that the purpose of the approval hearing will be defeated.
THE PRINCIPLE OF OPEN JUSTICE
The requirement that there be open justice now rests on two bases. The oldest basis is that of the common law, as set out in cases such as Scott v Scott [1913] AC 417, as noted in Guardian para 23. Another basis is the ECHR. In Scott v Scott the justification contemplated for any derogation was not the right to private life of any of the parties. The derogation in question there was a hearing in private, but the same principles apply to anonymity. As Lord Haldane put it, in the passage starting at p438:
“I think that to justify an order for hearing in camera it must be shown that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made.”
Art 6 may add nothing. No mention of Art 6 was made in Guardian. It may be that Art 6 would not apply to applications under CPR 21.10. That would be so if such applications do not involve “the determination of [a party's] civil rights and obligations: Y v HM Attorney General [2003] EWHC 1462 (Ch). I have heard no argument on this, and say no more about it.
In Guardian the justifications contemplated for any derogation from the principle of open justice include respect for private life. The reason, and the basis, for the court's jurisdiction to make anonymity orders was explained as follows:
“29. In fact, however, in these cases the courts have gone further: they have not only used initials in their judgments but have made anonymity orders addressed to other people—in effect, to the press. Having the...
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