Anonymity orders are a routine part of the working life of those practising in the field of personal injury and clinical negligence. In 2015 the Court of Appeal in JXMX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96 clarified the basis on which anonymity was justified in cases involving the approval of a settlement on behalf of a protected party (i.e. a child or someone who lacks capacity to conduct the proceedings: CPR r.21.1). Since then it has been generally recognised that the principles identified in JXMX extend beyond approval hearings, to all stages of proceedings involving a protected party. Anonymity orders are routinely sought and granted in such cases: GB v Home Office is an early example in which Coulson J referred to the requirement for consistency that had been highlighted in JXMX.
Given that such orders are so frequently obtained, it is perhaps surprising that no standard form of order has emerged. More concerningly, some forms of order have been found either to lack clarity, or be remarkably burdensome to comply with; indeed, unnecessarily burdensome for the purposes of achieving proper protection of the identify of a vulnerable party.
Further detail as to the background to anonymity orders, and some of the difficulties with their operation in practice, can be found in a two part article published on the UK Human Rights Blog in 2019: Straining the Alphabet Soup, Part 1 and Part 2. In a recent QMLR article (QMLR Issue 6) William Edis QC reviewed recent cases in which anonymity had been considered where the person seeking anonymity was not a protected party, to which reference may be made for the trickier cases beyond the paradigm.
In an attempt to address the issues that have been experienced even in standard cases in which anonymity will ordinarily be granted, I have been involved, with William Latimer-Sayer QC and Helen Mulholland, in developing a template for an order for use in personal injury and clinical negligence proceedings. This is with a view to producing a form of order that is effective in its purpose, makes only such incursions into the principle of open justice as are strictly justified, and is practical to operate.
The full membership of both the Personal Injury Bar Association (PIBA) and the Professional Negligence Bar Association (PNBA) have been consulted on the form of order. That exercise established that there was strong support for such an order and yielded some useful suggestions from senior practitioners for improvement of the template on which views were sought. The product of that exercise has now been endorsed by both Associations, and the template is set out below, with some commentary. The next stage, which may lead to further refinement of this template, is to seek the views of the judiciary and others working in the field. If you have any comments or suggestions in relation to this template, I would welcome hearing from you.
The template can be found on the UK Human Rights Blog: https://ukhumanrightsblog.com/2019/05/02/straining-the-alphabet-soup-part-2-drafting-anonymity-orders/
