This article originally appeared in Issue 6 (September 2020).
Those who practise in the field of serious personal injury and clinical negligence will be very familiar with the principles that govern the grant of anonymity orders. The leading authority is JXMX v Dartford & Gravesham NHS Trust  EWCA Civ 96.
Where the claimant is a protected party the making of such orders is verging on the automatic, though this does not obviate the need to set out and establish the grounds for one. The presumption in a suitable case is that an order will be made unless the court is satisfied that it is not necessary to do so. The order should be sought as soon as it is appreciated that it is necessary and the courts have repeatedly deprecated late applications. Commonly such applications are intimated in the Particulars of Claim.
Court Form PF 10 is a precedent for an “Anonymity and Prohibition of Publication” order that is sometimes employed (albeit arguably it is unsuitable in the clinical negligence context) but most practitioners, including the author, will have their own preferred form of order capable of being adapted to the needs of the case. Typically, an order will recite that consideration has been given to of the Claimant’s Article 8 right to respect for private and family life and to the Article 10 right of others to freedom of expression and set out the legal basis for the order: rule 39.2(4) of the Civil Procedure Rules, section 11 of the Contempt of Court Act 1981 and rules 5.4C and 5.4D of the Civil Procedure Rules.
The order itself will provide that the identity of the Claimant and her Litigation Friend are not to be disclosed, further defining that prohibition by words such as:
“There shall be no publication in any newspaper or other media (including but not limited to the Internet and social media) or other disclosure to the public of any name, address, picture or information tending to identify the Claimant or Litigation Friend as being the Claimant or Litigation Friend in these proceedings,” adding – where there has been a judgment on some contentious issue words such as [“save that it shall not be a breach of this order to publish anything contained in the public judgment of this court dated”]
Various procedural and administrative requirements and permissible exceptions will then be set out.
Three recent cases
So much is standard but in three recent cases the Court has considered anonymity orders in circumstances that are different from the norm, though not in truth unusual.
In Darrell Stewart Jones v the Ministry of Defence  EWHC 1603 (QB), the Claimant, who was of full capacity, sued for the consequences of a 10 month delay in diagnosing his HIV status. The trial was to be heard entirely remotely and on the first morning the Deputy Judge received an application from the Press Association for access to the hearing. When he informed the parties of his provisional intention to allow the request, he received an unheralded application on behalf of the Claimant for an anonymity order. The justification for making the order was said to be that the Claimant was a “private man who has kept his HIV status secret from much of his social circle and his employers. He is understandably concerned about the impact that disclosure might have on his relationships with people and his employment.”
After a certain amount of justified grumbling about the timing of the application, the judge nevertheless proceeded to hear and decide it. His reasons for refusing the application were given ex tempore but he reproduced them in an Appendix to his judgment. He accepted that publication of the Claimant’s HIV status would adversely affect his private life but this did not reach the level of gravity that would justify departure from the principle of open justice. At  of the Appendix he said:
“This is not a case, for example, where the impact of disclosure might have a profound impact on the safety of a witness or where there is evidence that it would have a profound impact on mental health. The agreed evidence of the psychiatrists in this case is that whilst the Claimant has suffered psychologically as a result of contracting HIV (the precise cause, duration and severity of which is a matter of dispute), his illness has not been very severe and he is no longer classified as suffering from any diagnosable condition. This is not a case therefore where the evidence suggests that the disclosure will cause actual physical or psychiatric harm.”
Relevant to the assessment of harm was his finding that the stigma of being HIV positive has reduced over time. He did not set out any evidence supporting this assertion.
An additional factor was that the Claimant’s name was already in the public domain, being contained in court papers and the case having been listed without anonymising the Claimant. Given that the Court of Appeal in JX MX stipulated, at [35(i)] that applications for anonymity orders, “…should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made” the judge’s reasoning is perhaps slightly difficult to understand as any application, whenever made, would appear in the unanonymised name of the claimant. Equally, the Claim Form would be issued prior to the entitlement for anonymity. Thus, the claimant’s identity will always be “in the public domain”.
The case was similar in principle to Zeromska-Smith v United Lincoln Hospitals NHS Trust  EWHC 552 (QB) (also covered in QMLR here) where Martin Spencer J declined to make an anonymity order in a case where the negligence of the healthcare Defendant had led to the stillbirth of the baby the Claimant had been carrying. As a result, it was said, the Claimant had developed a life-changing and severe psychiatric illness that included some degree of risk of suicide. On her behalf it was argued that publishing her name would, “risk considerable further harm to the Claimant’s already precarious mental health and harm to her children and family”, judgment , including the fact that the Claimant’s two children – and potentially their schoolmates – may come to know intimate details of her psychiatric condition.
Contrast the position in ABC v St George’s Healthcare Trust  EWHC 1394 (QB), where Claimant had negligently been kept in the dark about her diagnosis of Huntingdon’s disease, an inherited neurological condition with a 50% chance of being passed on to any children the patient may have. The Claimant’s argument included an assertion that her daughter would or may become aware of the diagnosis, and of her risk herself of contracting the disease, at any age where she would thereby suffer real harm. Nicol J held that this sufficed to make anonymity necessary.
In PQ v Royal London Hospital NHS Foundation Trust  EWHC 1662 (QB) the Court considered whether an anonymity order should be made to cover a trial of liability as a preliminary issue. The Claimant was a protected party. Martin Spencer J held that a derogation from the Article 10 right of freedom of expression at the liability stage was necessary so as to make meaningful the exercise of the same right at, if, and when, there was a quantum trial. The at first glance paradoxical reasoning was that if the liability trial was reported in full and with the Claimant named, it would make it impossible to report in any useful detail any quantum trial that took place with the protection of an anonymity order since anyone juxtaposing the two judgments would easily be able to identify the Claimant.
Anonymity orders will only be made where it is necessary to derogate from the principle of open justice. “Necessity” – sometimes redundantly described as “strict necessity” – is a condition precedent. Whilst they have become routine in cases involving protected parties, exceptional circumstances will be required before one is granted in favour of a claimant with capacity, who is deemed a volunteer in the litigation process. It seems that severe harm, perhaps to a level that arguably engages Article 2, will be required before one is granted. Embarrassment, humiliation, some degree of societal disapproval and even some psychiatric injury appear not be sufficient, see Zeromska-Smith. Nor is a justified claim to vulnerability enough. Perhaps the question that practitioners should ask when considering applying for such orders is: “Is there a real danger that if the order is not made the claimant or others would come to serious harm?” A feature of many late applications is that there is a paucity of evidence directed specifically to the potential harm of publicising the claimant’s name. This certainly was the case in Jones.
Where the claimant is a protected party, it is wrong, and dangerous, to conclude that different rules apply to preliminary trials of liability and that it is only if they will, or may, proceed to a quantum hearing that an order should be made. As soon as one accepts this one is tacitly inviting the court to make an order pending the outcome of this preliminary issue and to discharge it if the claimant fails.
Lizanne Gumbel QC and Owain Thomas QC appeared for the parties in PQ v Royal London Hospital NHS Foundation Trust. Neither contributed to this article.
Readers interested in this topic would greatly benefit from reading two posts by my colleague Angus McCullough QC on 1COR’s UK Human Rights Blog. They are to be found here and here. The latter post contains detailed drafting suggestions.