Court of Appeal Gives Guidance as to Correct Approach to Anonymity Orders Until Outcome of PMC Appeal
PMC v A Local Health Board [2025] EWCA Civ 176
The Court of Appeal has given guidance to practitioners on how to approach anonymity orders until the resolution of the appeal in PMC.
Nicklin J, in his judgment [2024] EWHC 2969 (KB), which was covered here on QMLR, doubted the previous approach to anonymity orders set out in JX MX v Dartford & Gravesham NHS Trust [2015] 1 WLR 3647.
The case has been appealed, and in this short judgment, the Court of Appeal decided that argument in PMC would start following judgment from the Supreme Court in Abbasi v Newcastle Upon Tyne NHS Trust & Others.
Abbasi
Abbasi [2023] EWCA Civ 331 is a case concerning Reporting Restriction Orders (RROs) made in respect of the identities of doctors in ‘end of life’ proceedings involving children (e.g. cases similar to Charlie Gard’s and Alfie Evans’). Anonymity had initially been granted but the question was whether it should continue after the proceedings. The Court noted that there was no specific evidence relating to the individual doctors, only generic evidence (see §33-34, §90, §94, §117). The Court also noted that many of the reasons set out in the evidence did not actually bear on the clinicians’ article 8 rights, (§80) whereas families specifically wanted to talk about their case publicly to raise awareness of the issues (§106, §109).
The Court of Appeal noted that it was confronted with (at §88): “the future risk of an interference with article 8 against a concrete interference with the right to free speech…how to balance the right to free speech against an indirect and speculative interference with article 8.”
The Court of Appeal discharged the RROs finding Article 10 trumped Article 8 in the balancing exercise, see §130:
“The orders made in these cases provide for the indefinite continuation of injunctions against the world prohibiting publication of the names of a small number of clinicians in the Abbasi case and a wide range of health service staff in the Haastrup case. The intense focus on the specific rights being claimed delivers the clear conclusion that the article 10 rights of the parents in wishing to “tell their story” outweigh such article 8 rights of clinicians and staff as may still be in play, long after the RROs were made in the respective end-of-life proceedings. The wider systemic concerns which affect the operation of the NHS laid before the court by representative bodies cannot justify the creation of a practice, not anchored to the specific circumstances of the case, of granting indefinite anonymity to those involved in end-of-life proceedings. Such a step is one that is controversial and intensely political and suitable for Parliament rather than the courts.”
The case has been appealed to the Supreme Court.
Guidance
The Court of Appeal gave clear guidance to practitioners as to the approach that should be taken until judgment is given in PMC:
In the concluding section of his judgment, Nicklin J set out a critique at [147]-[159] of the model order devised by the PIBA and published as a court form, numbered PF10, in the light of the decision in JX MX and commonly used at approval hearings. We do not express any view on the merits of that critique. We are in no position to do so at this stage. However, in the light of the information about the practical impact of that critique which has been provided to us at the hearing today, we would suggest that, for the sake of good order, it may be best for practitioners and judges to continue to use that form for the time being.
As regards the current supposed uncertainty, we were referred to a note in the Civil Procedure News issue 1/2025 (14.1.25) published by the White Book, which said the following: “Given the errors noted in the draft order [PF10], urgent consideration of its terms and their revision by the [Civil Procedure Rules Committee] would seem to be justified. Practitioners should take care to note the guidance given in the judgment [of Nicklin J] and approach the draft order accordingly”.
As we have said, it is advisable to use PF10 in the interregnum that arises until judgment is given in this appeal. It is also worth pointing out that first instance judges remain bound by the decision in JX MX, until that decision is either departed from by the Court of Appeal or overruled by the UKSC.
Jeremy Hyam KC of 1COR is acting for the Defendant (A Local Health Board) in this appeal. He had no involvement in the writing of this article.
