Anonymity orders: putting the genie back in the bottle?
PMC -v- A Local Health Board [2024] EWHC 2969 (KB)
Nicklin J provides guidance on when and how to seek orders for anonymity and/or reporting restrictions. The default position must be open justice: it is for the applicant to satisfy the court, to the required standard, that the relevant derogation is necessary. Nicklin J casts doubt on the Court of Appeal’s decision in JX MX v Dartford & Gravesham NHS Trust [2015] 1 WLR 3647, suggesting it conflicts with principles of open justice [109-114]. He specifically doubts that children and protected parties should have a presumption of anonymity after approval of a settlement. Nicklin J granted permission to appeal on the basis the decision raised issues of wider importance and the conflict, in his view, between JX MX and other appellate authorities.
Five key takeaways for claimants
- Anonymity or reporting restrictions should be sought at the beginning of proceedings [55]. Given third parties’ rights to statements of case under CPR r 5.4C and the potential retrospective effect of an order if information has already entered the public domain, it can make it difficult or impossible to secure anonymity after issue [114]. To support an application after proceedings have begun, the Claimant must file any public judgments in the claim, documents available to public inspection, details of any open court hearings in the claim, and what is available about the claim on third-party providers such as Westlaw [151].
- Parties should be cautious of engaging with the media. If a party’s name is already in the public domain in connection with a claim, it is “Canute-like” to suggest that the court can or should erase it [55]. Doing so is to try to put the genie back in the bottle [63]. An order to remove lawfully published material will be wholly exceptional [93]. In PMC the Claimant’s mother’s and solicitor’s prior media interviews in connection with the claim undermined the application.
- Clear, cogent and specific evidence must be provided to demonstrate the necessity of such an order [30]. The court will scrutinise that evidence [32] but the scales do not start evenly balanced [41]. Vague or general assertions about privacy or the risk of potential harm or exploitation are insufficient. Where the Court of Protection has already appointed a professional deputy, an applicant may be better protected and not require anonymisation [129].
- Parties must not merely rely on the standard PF10 form [145-159]. Very few (if any) cases can simply adopt the terms of PF10; each element of it must be made relevant to what the court is being asked to do [146]. References to s.6 Human Rights Act 1998 and CPR 39.2(4) as the jurisdiction under which the order is made are erroneous [149]. The correct statutory basis should be identified [155]. The reference of PF10 to ‘further’ publication creates difficulties for continuing publications online because it is apt to have a retrospective effect [150]. The words ‘by consent’ are neither appropriate nor relevant [153].
- The neutrality of the Defendant and/or the media does not assist claimants. It is not for the media or the public to justify why someone’s name should be publishable [44]. In PMC, two media organisations made submissions and did not oppose the grant of anonymity. The court considered that neither organisation fully appreciated the implications of the order sought [131]. Generally, the court should consider the media and the public’s rights under Article 10 [139].
Background of PMC
The anonymity application in issue derived from the Claimant’s clinical negligence claim against the Defendant. Prior to the application, there had been no previous hearings. Judgment on liability was entered by consent and directions for a quantum-only trial were given for December 2025. The Claim Form sought damages of more than £10 million.
On 31 October 2024 the Claimant’s solicitor was contacted by a journalist from Media Party 1 (‘MP1’). That journalist sought to liaise with the family regarding the claim and already had a copy of the Particulars. MP1 had already published two articles concerning the Claimant and Media Party 2 (‘MP2’) had also covered the story. On 1 November 2024 the Claimant’s solicitor issued a without-notice Application Notice seeking an anonymity order.
Nicklin J refused the application for the interim anonymity order, given that MP1 had not been notified and he was not satisfied that all practicable steps had been taken, or that there were compelling reasons why notification should not occur [20].
Decision in PMC
Following a substantive hearing, Nicklin J recognised the factors in favour of granting anonymity as the Claimant’s status as a child and that the quantum trial would consider intensely private medical information. However, he sharply criticised generalities asserted about the Claimant, including that he was “vulnerable to exploitation” or “may also need safeguarding” [128]. Nicklin J considered the risk to be “somewhere between very remote and non-existent” given his affairs would be managed by a professional deputy appointed by the Court of Protection [129].
The availability of online information about the Claimant, “most of it placed there voluntarily as a result of interviews by the Claimant’s side” and the non-anonymised proceedings to that point meant any attempt to anonymise was unjustifiable and futile [132]. Nicklin J noted that given media coverage prior to issue, an application would not have been straightforward even if made at the time of issue [134]. The substantive application was rejected, notwithstanding that neither the Defendant nor MP1 nor MP2 opposed it [15,131].
Conclusion
The circumstances of this case, with relatively wide media exposure early on, may be unusual, and the decision may well be under appeal, but it would be wise for Claimants to consider anonymity at an earlier stage in proceedings than has commonly been the case. If the approach of Nicklin J is followed in other cases, where a deputy is in place, general assertions based on the vulnerability of the Claimant to exploitation will not hold water. More fundamentally for an exercise which has often become a rubber stamp at an approval hearing is Nicklin J’s point that “Few are the cases (if any) in which the Court can simply be asked to make an order in the terms of PF10. Careful consideration of each of the paragraphs of the order is required together with an understanding of purpose, jurisdiction and justification for each of them”. More careful scrutiny is to be expected.
