Client Alert: Children and Protected Parties should be granted anonymity

JX MX (by her mother and litigation friend AX MX) v Dartford & Gravesham NHS Trust Court of Appeal, 17 February 2015

The settlement of a claim made by a protected party requires court approval. Unless there are provisions to the contrary, that order becomes a public document. Ironically, this means a non-protected claimant can settle their claim pre-litigation without their identity becoming public - a protected party cannot.

This recent case explores the protective measures a vulnerable claimant’s legal team should put in place to protect their client’s privacy - namely an anonymity order.

The Decision

The Court of Appeal (CoA) has given guidance to judges when dealing with applications for an anonymity order in approval hearings for children or protected parties.

Previously a child or protected party seeking an anonymity order had been required to make a formal application.

Following this decision, unless it is satisfied that it is unnecessary or inappropriate to do so, the court should normally make an anonymity order in favour of the claimant without the need for any formal application.

This order should prohibit publication of the name and address of the claimant and their immediate family and (if not already covered) the name of the litigation friend.

The CoA recognised that under the principle of ‘open justice’ the public and the press had a legitimate interest both in observing the proceedings and making and receiving a report of them.

Therefore, the press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings.

If the press or any other party wants to argue against an order, it will normally be necessary to file and serve on the claimant a statement setting out their arguments.

What this means for insurers

• Whilst these are issues for the claimant’s legal team, insurers and their lawyers need to be aware that as a result of this case more anonymity orders are likely in protected party cases. There are also procedural requirements defendants will have to comply with to ensure the protected party is not identified.
• It is difficult to envisage a situation where the defendant would want to challenge an anonymity order. In reality, the issues to be aware of are the procedural changes that will be put in place.
• It is unclear at this stage how the claimant’s team and the court will give notice to the press at the appropriate times. At a recent Keoghs case heard in the Royal Courts of Justice shortly after this judgment was released, the court listing notices seemed to be considered sufficient notice.
• The court also suggested that approval hearings would be heard in public rather than private, but with restrictions on reporting.
• As far as the defendant’s team is concerned once an anonymity order is made there are likely to be restrictions on all parties ensuring the identity of the claimant is not released. This is likely to cover restrictions on outgoing post including removal of the claimant’s name from letter headings and even how money is paid into court. Failure to comply with the restrictions will be a breach of the anonymity order.

The Appeal in detail

The claimant suffered severe injuries at birth. Damages were agreed and an application to court was made for approval. The claimant also asked the court to make various orders to ensure the claimant’s identity was withheld from the public indefinitely. They also sought 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 did order that her address should not be disclosed. He gave permission to appeal and made orders protecting the claimant’s identity in the meantime. The claimant appealed.

The CoA allowing the appeal, set out the principles to be followed:

(i) Because the hearing will be held in open court the press and members of the public will have the right to be present and to observe the proceedings;

(ii) Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(iii) The judge should invite submissions from the parties and the press before making an anonymity order;

(iv) Unless satisfied after hearing arguments that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;

(v) If the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;

(vi) The judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the press on request as soon as possible after the hearing.

The CoA held that the judge had been wrong in this case not to make an order preventing publication of the names of the claimant and her parents. The appeal was allowed.

Keoghs View

To many it may appear that what seemed a simple issue has been made considerably more complicated and unnecessarily so. It is hoped that the procedural hurdles now in place will be softened with time.