In this blog post, Finn Selman, pupil barrister at 12KBW, analyses the judgment in PMC v A Local Health Board [2024] EWHC 2969 (KB) and discusses how anonymity orders are approached in practice, in the experience of various members of chambers. It is recommended reading for those representing protected parties or those seeking anonymity orders.
Introduction
This blog post analyses the guidance given by Nicklin J in PMC v A Local Health Board [2024] EWHC 2969 (KB), as well as discussing the extent to which it is applied (or otherwise) at the coalface.
Summary of PMC v A Local Health Board
The Claimant sought damages of +£10 million for the Defendant’s clinical negligence in 2012 which resulted in the Claimant suffering cerebral palsy at birth. The Claimant was a protected party. By consent, judgment on liability was entered in 2023.
The Claimant had featured in articles and news reports as an example of the human cost of medical negligence. The Claimant’s litigation friend and solicitor had shared substantial information with the media which led to the publication of these articles and reports. The publishers of the articles were identified as Media Party 1 (“MP1”) and Media Party 2 (“MP2”) in the judgment.
On 1 November 2024 the Claimant sought an immediate interim anonymity order, pending hearing of the application, without notice to MP1, and a final anonymity order. In support of this, the Claimant relied on JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 and PQ v Royal London Hospital NHS Foundation Trust [2020] EWHC 1676 (QB). No prior applications for anonymity had been made.
The Defendant’s and media parties’ positions remained neutral throughout.
Nicklin J held:
- The default position is open justice [148]. The general rule is that the names of the parties to the proceedings will be made public [27];
- Any order to withhold the name of a party is a derogation from the principle of open justice and an interference with Article 10 of the Human Rights Act 1998 [29];
- The factors that militate against the grant of anonymity are the significant weight to be attached to open justice and the need to demonstrate, by clear and cogent evidence, sufficiently weighty countervailing factors which convince the Court that anonymity is necessary and proportionate [30];
- In cases where the derogation from open justice is sought on the basis of an argued interference with another qualified Convention Right, the correct approach is the balancing test found in re S [2005] 1 AC 593 at [17] of Lord Steyn’s judgment. [31]
- It is for those seeking the derogation from open justice to show why it must be derogated from [44].
- There are two distinct elements to any anonymity order which do not have to be granted together. The withholding order, which withholds the name of the relevant person in proceedings and the reporting restriction order, which prevents dissemination of that withheld information [45];
- An anonymity order ran the risk of ‘jigsawing’ together the Claimant’s identity from other materials such that any future articles, even if anonymised, ran the risk of breaching the reporting restriction order and so leading to potential contempt proceedings being brought against any publishers discussing the claim [59];
- Khuja v Times Newspapers Ltd [2019] AC 161 is unambiguous authority for the principle that a reporting restriction must have a statutory basis [106];
- JX MX does not assist where pre-existing publicity is in issue [125];
- The neutrality of the Defendant and/or media did not assist the Claimant [131];
- The practical effects of granting a reporting restriction order that acted retrospectively would be to require MP1, MP2 and other online providers to take down or amend articles that had already been published [139];
- If granted, the order would represent a significant interference of the media’s and the public’s rights under Article 10. This is not one of the truly exceptional cases, raising issues under Article 2 and/or Article 3, where the Court is compelled to force the genie back into the bottle [139];
- Anonymising the Claimant at the current stage of the litigation would represent a disproportionate interference with the Article 10 rights of MP1, MP2, Westlaw and the public generally [141];
- There are other ways that the Court can mitigate the impact on the Article 8 rights of the Claimant, arising from the disclosure of medical and private information, in the remaining phases of the litigation [141];
The anonymity order application was therefore refused.
How anonymity orders have been approached since PMC
Various members of chambers have recently been involved in cases, following the decision in PMC, where anonymity orders have been sought by the Claimant as a protected party. In spite of the judgment and result in PMC, these orders tend to have been granted. This point is discussed further in the commentary below, after the cases are summarised.
Gerard Martin KC in KXR v MXU and Another (Judgment: 2 December 2024)
- An anonymity application hearing before HHJ Howells, sitting as a Deputy Judge of the High Court.
- The Court considered:
- Article 8 and Article 10 of the Human Rights Act 1998 and Section 37 of the Senior Courts Act 1984;
- The decisions in PMC and JX MX;
- That non-disclosure of the identity of the Claimant and the Defendants is necessary to secure the proper administration of justice, and in order to protect the interests of the Claimant, and that there is no sufficient countervailing public interest in disclosure.
- The Defendants’ neutrality to the order.
- The Court held that an anonymity order could be granted which followed the standard form available on the Court Service website and was consistent with the principles enunciated in JX MX.
William Audland KC in FNC v MXS (Judgment: 3 December 2024)
- An approval hearing before HHJ Baddeley, sitting as a Deputy Judge of the High Court.
- The Court considered:
- Itself bound by the Court of Appeal authority in JX MX;
- That PMC is under appeal;
- That PMC could be distinguished as in that case the Claimant’s litigation friend and solicitor had shared information with the media on multiple occasions, resulting in publicity;
- The Claimant, as a vulnerable individual, could be exploited if the settlement became public knowledge in his community.
- The Defendant’s neutrality to the order and there being no representations from the press or any other interested party.
- The Court held that an anonymity order could be granted.
Stephen Worthington KC in DXW v Lewis & Aviva Plc (Judgment: 9 December 2024)
- An approval hearing for settlement before Mr Marcus Pilgerstorfer KC (sitting as a Deputy Judge of the High Court).
- The Court considered;
- Article 8 and Article 10 of the Human Rights Act 1998;
- Itself bound by the Court of Appeal authority in JX MX, despite the judgement in PMC;
- That non-disclosure of the identity of the Claimant and the Defendants is necessary to secure the proper administration of justice, and in order to protect the interests of the Claimant, and that there is no sufficient countervailing public interest in disclosure.
- The Defendant’s neutrality to the order and there being no representations from the press or any other interested party.
- The Court held that an anonymity order could be granted.
Comment
It appears that the situation at the coalface, in the Courts, does not reflect the position in PMC and instead reflects that of the Court of Appeal in JX MX. The Courts are following JX MX for fairly consistent reasons, as appears from the summaries above.
Firstly, they consider themselves bound by the ruling in JX MX as more analogous to the facts of a usual anonymity order application and as the higher authority of an appellate court. It is important to note that the facts of PMC are particular and distinctive; the normal run-of-the-mill anonymity order application does not take place against a background of substantial prior media involvement and public interest. The practical implications for the media and the public of an anonymity order in that case were a weighty consideration for Nicklin J in not granting the Claimant’s application, and featured heavily in his judgment. This provides scope for the Court to find, as can be seen in the cases above, that PMC can be distinguished on its facts from a standard case in which an anonymity order is being sought and the authority of JX MX favoured.
Secondly, it appears in practice that the protected party’s interests and Article 8 are being preferred to the principle of open justice and Article 10. In PMC the Court found that the principle of open justice and Article 10 (i.e. the rights of the public and the media) were paramount considerations and any interference with them was unjustifiable and disproportionate. So, when balanced with the protected party’s interests and Article 8 the correct balance was found to weigh in favour of the former. The Courts, however, following PMC, are finding the reverse. This may be due to the differences in the factual background.
Thirdly, the neutrality of other parties to the proceedings has been held to be a relevant consideration in determining whether an Anonymity Order should be granted in a particular case. This is despite Nicklin J’s finding that the neutrality of the Defendant and/or media parties did not assist the Claimant in PMC.
The feeling on the ground is that whilst Nicklin J’s open justice emphasis in PMC was correct, the balance must (and does) often come down in favour of the protected party’s interests.
Pupil barrister
