JXMX (a Child proceeding by her Mother and Litigation Friend Mrs AXMX) v Dartford and Gravesham NHS Trust
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Tugendhat,Mr Justice Tugendhat |
| Judgment Date | 17 December 2013 |
| Neutral Citation | [2013] EWHC 3956 (QB) |
| Date | 17 December 2013 |
| Court | Queen's Bench Division |
| Docket Number | Case No: HQ10X01917 |
[2013] EWHC 3956 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Tugendhat
Case No: HQ10X01917
Ms E A Gumbel QC (instructed by Field Fisher Waterhouse LLP) for the Claimant
Mr M Porter QC (instructed by Clyde & Co) for the Defendant
Hearing dates: 10 December 2013
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.
The Honourable Mr Justice Tugendhat Mr Justice Tugendhat This case again raises the question whether the court should make an order that the claimant be identified by letters of the alphabet, and that there be other derogations from open justice (an anonymity order), in a claim for personal injuries by a child or protected party which comes before the court for the approval of a settlement pursuant to CPR r21.10.
CPR r.16 and Practice Direction 16 para 2.6 provides that
"The claim form must be headed with the title of the proceedings, including the full name of each party. The full name means, in each case where it is known: (a) in the case of an individual, his full unabbreviated name and title by which he is known; …"
If a claim form is to be issued and served which does not comply with the requirements of PD 16 on identifying the claimant, or if an order is sought that the claimant be not identified at a later stage, then the (intending) claimant must apply to the court for a dispensation from those requirements, either before the claim form is issued, or when the grounds for anonymity exist.
In this case I refused to make the anonymity order sought, although I did order that there be no report of the address at which the claimant and her family live. The claimant is identified only by letters in this judgment because I gave permission to appeal. I granted the anonymity order sought until determination of any appeal, until discontinuance of any appeal, or until the time for serving notice of appeal expires without such a notice having been filed. If I had not done that, the purpose of any appeal would have been defeated.
THE LAW
One of the recent authorities on anonymisation is Guardian News and Media Ltd, Re HM Treasury v Ahmed [2010] UKSC 1; [2010] EMLR 15, [2010] 2 AC 697 at para [63] and following. At para [72] Lord Rodger said:
"the possibility of some sectors of the press abusing their freedom to report cannot, of itself, be a sufficient reason for curtailing that freedom for all members of the press"
In the light of that in recent years I have given a number of judgments specifically on approval hearings which are available on Bailii: LK v Sandwell & West Birmingham Hospitals NHS Trust [2010] EWHC 1928 (QB); JXF v York Hospitals NHS Foundation Trust [2010] EWHC 2800 (QB); [2011] Med LR 4, (2011) 117 BMLR 1; A Child v Cambridge University Hospitals NHS Foundation Trust [2011] EWHC 454 (QB); (2011) 120 BMLR 59, [2011] Med LR 247, [2011] EWHC 454 (QB), [2011] EMLR 18, 120 BMLR 59; MXB v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB); CVB v MGN Ltd [2012] EWHC 1148 (QB) (which was not on an approval hearing). I have also given a number of judgment ex tempore (as I believe have other judges) but they are not publicly available (and may not even have been transcribed). One case on anonymity in a different legal context, but which is available and is based on adversarial argument, is HM Revenue & Customs v Banerjee [2009] EWHC 1229 (Ch). There Henderson J rejected an application for anonymity based on concerns expressed by the claimant as her vulnerability, which he did not accept to be well founded: para [38].
There are more recent judgments of high authority on the principle of open justice, including Jolleys (Ex Parte Press Association), R v [2013] EWCA Crim 1135 and R (on the application of M) v Parole Board [2013] EWHC (Admin); [2013] EMLR 23.
To these authorities I would add that the approach to the making or reporting restrictions under the Contempt of Court 1981 s.4(2) should apply in principle to any other derogation from open justice. In each case the test is one of necessity. In Independent Publishing Co Ltd v A-G of Trinidad and Tobago [2004] UKPC 26 at [69]; [2005] 1 AC 190) the Privy Council set that out in the following terms (for 'the risk of prejudice to the administration of justice' there must be read, in this context, 'the risk of interference with the claimant's privacy rights', and or 'a s.4(2) order' there must be read 'an anonymity order') :
"in considering whether it was 'necessary' both in the sense under section 4(2) of the 1981 Act of avoiding a substantial risk of prejudice to the administration of justice and therefore of protecting the defendants' right to a free trial under article 6 of the Convention and in the different sense contemplated by article 10 of the Convention as being 'prescribed by law' and 'necessary in a democratic society' by reference to wider considerations of public policy, the factors to be taken into account could be expressed as a three-part test;
that the first question was whether reporting would give rise to a not insubstantial risk of prejudice to the administration of justice in the relevant proceedings, and if not that would be the end of the matter;
that, if such a risk was perceived to exist, then the second question was whether a section 4(2) order would eliminate the risk, and if not there could be no necessity to impose such a ban and again that would be the end of the matter; that, nevertheless, even if an order would achieve the objective, the court should still consider whether the risk could satisfactorily be overcome by some less restrictive means, since otherwise it could not be said to be 'necessary' to take the more drastic approach;
that, thirdly, even if there was indeed no other way of eliminating the perceived risk of prejudice, it still did not follow necessarily that an order had to be made and the court might still have to ask whether the degree of risk contemplated should be regarded as tolerable in the sense of being the lesser of two evils; and that at that stage value judgments might have to be made as to the priority between the competing public interests represented by articles 6 and 10 of the Convention …"
Until recently applicants for approval hearings did not ask for anonymity. Claimants in actions for damages for personal injuries have generally been named. This has been so even where the claims arose out of injuries sustained at birth, where the evidence included the highly private facts of the medical treatment of the mother as well as of the child. I am informed by counsel, in this and in other cases, and by other Queen's Bench judges, that applications for anonymity are now made in most approval hearings, if the order has not already been made by the Master.
Ms Gumbel submits that the reason for the increasing frequency of applications for anonymity orders is the availability of the internet. Information which was once ephemeral has now become recorded in permanent form, available to be found into the indefinite future with the use of a simple search engine. There is support for this submission by Sir James Munby P in J (A Child), Re [2013] EWHC 2694 (Fam) at paras [41]–[42].
In the present case I gave permission to appeal. It is not necessary that I should restate in this judgment the law as I have previously stated it in the judgments referred to.
Judges at first instance can be mistaken. The risk of error is greatly increased where, as in the cases I have mentioned above, the judgment is not the result of adversarial argument. The reason why there is no adversarial argument is that the defendant generally takes a neutral stance on the question of anonymity.
Advocates for claimants commonly present their submissions on the footing either that there is no issue (if no media organisation opposes the application), or that any issue there may be is one between the privacy rights of the claimant (under common law and under Art 8) and the freedom of expression rights of the press (again under common law and under Art 10). But that is not the correct analysis. The question at issue is whether the court should grant a derogation from open justice, and from the rights of the public at large. See A-G v Guardian Newspapers (No 2) [1990] 1 AC 109 at 183B, where Lord Donaldson MR observed that it was an error to suppose that:
"newspapers have a special status and special rights in relation to confidential information, which is not enjoyed by the public as a whole. …"
The fact that no media organisation opposes an application, or even the fact (if it be such) that there is consent to the order, does nothing to relieve the court of its obligation...
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