Anonymous, Again

Anonymous, Again

David Manknell KC and Leo Kirby

PMC -v- CWM TAF MORGANNWG UNIVERSITY HEALTH BOARD [2025] EWCA Civ 1126

The Court of Appeal allowed the Claimant’s appeal against the decision of Nicklin J in PMC -v- A Local Health Board [2024] EWHC 2969 (KB). The judgment was written by Sir Geoffrey Vos MR, with whom Warby LJ and Whipple LJ agreed. Nicklin J had doubted the Court of Appeal’s decision in JX MX -v- Dartford & Gravesham NHS Trust [2015] EWCA Civ 96.

The case considered applications seeking anonymity under CPR 21.10 for approval of a settlement, as well as the Court’s jurisdiction to make anonymity orders in the course of personal injury proceedings generally.

Key takeaways for applicants

Practitioners must be clear what form of order they seek. The terminology for orders sought in such cases has not always been clear [2]. The Court of Appeal distinguished between:

• A withholding order (“WO”) to withhold or anonymise the names of a party or a witness, including withholding information that would identify that person;
• A reporting restrictions order (“RRO”), to restrict the reporting of material disclosed during those proceedings whether in open court or by the public availability of court documents; and
• An anonymity order (“AO”), which has the effect of both withholding or anonymising the names of a party or a witness and restricting the reporting of material disclosed during those proceedings.

JX MX was approved but clarified:

• An application for an AO at an approval hearing should be listed either as “an application under CPR Part 21.10” (or similar) or by reference to a three letter pseudonym [98].
• The media must be notified of the application if it has already published information about a case [101]. The media will be permitted to make representations. If no third party is known to have an existing interest in the case, no notification is necessary. This marks a change: the Master of the Rolls stated that “I cannot, however, see why, in cases where no third party is known to have an existing interest in the case, the media needs to be notified in advance of an anonymity application being made. The media will become aware immediately after an AO is made because of the provisions of CPR Part 39.1(5) … The media can then apply speedily, if they wish, to set aside the AO.” Practitioners will therefore need to consider whether a notification to the press is required in their particular case, but there is in our view a risk of criticism if the press are not notified of an application where they have reported on a case because those acting for the applicant had failed to make themselves aware of prior press interest.
• An AO will not be granted automatically [99]. Evidence must be presented to support an application.
• The evidence required will depend on the individual case. Applications under CPR Part 21.10 to approve a child’s settlement are not identical to other applications for anonymity [97]. Given that the risks to the party in question may lie wholly in the future there may necessarily be reliance on generic evidence about comparable cases. This is quite distinct from determining such applications only on rival generalities [100].
• Previous publicity has no automatic effect on whether applications will be granted. It is not itself a bar to the making of either a WO or an RRO. [103] However, it is plainly an important factor for the court to consider.
• It may be impractical or undesirable for already published material to be subject to an order. In PMC itself, the Court of Appeal would only make a forward-looking order; it would not require media organisations to remove material that had already been published [104].
• Any application for an AO should be made as early as reasonably practicable [104].

Practitioners must be clear of the jurisdictional basis of the order they seek.

• For an application for an AO in a personal injury claim by a child or protected party, claimants rely on the inherent common law jurisdiction of the court to protect the integrity of its proceedings in the interests of justice [102]. This is derived from the authorities on the power to make WOs and RROs [26-76]. It is not the parens patriae protective jurisdiction or an essentially protective Court process. It is not normally necessary to invoke the equitable jurisdiction of the court or section 37 of the Senior Courts Act 1981. It will be possible, in cases to which section 11 of the Contempt of Court Act 1981 applies, to rely also on that section [102].
• There is an essential distinction between this power and the court’s equitable power to grant an injunction restricting publication of material outside court proceedings against all the world [88].

Nicklin J’s judgment in the court below remains valuable. Sir Geoffrey Vos MR was at pains to recognise that Nicklin J had “expertise in this area” [24]. The Court of Appeal endorsed Nicklin J’s formulation [at 40 of his judgment] that the Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification. [90]

The PF10 form needs to be updated by the Civil Procedure Rule Committee. It now contains elements which need revising [115]. In the meantime, it is likely best to adopt the approach suggested by the Court of Appeal in its interim judgment ([2025] EWCA Civ 176) 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.”.

Background of PMC

The anonymity application resulted 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].

High Court decision

After 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].

Court of Appeal decision

The Court of Appeal determined that:

• There is a limited common law power to derogate from the principle of open justice in civil or family court proceedings by making, within court proceedings, both a WO and an RRO [8].
• JX MX largely remains good law [9].
• There is no jurisdictional reason why an AO should not be made, relying on either the common law power or section 11 of the Contempt of Court Act 1981, even if a WO was not made at the beginning of the proceedings [10].
• In the High Court, Nicklin J was wrong to refuse the application for an AO in the personal injury claim brought by a severely injured child through their litigation friend [10]. The terms of the specific AO can however only be prospective, because of the previous publicity that the case has attracted. The main features making it strictly necessary to make a prospective WO and an RRO, in the interests of justice, are (i) the extreme vulnerability of the claimant, and (ii) the Judgment Approved by the court for handing down [109].

The QMLR team has previously summarised Nicklin J’s judgment here and an earlier interim judgment by the Court of Appeal here.

1 Crown Office Row’s Jeremy Hyam KC represented the Local Health Board in the appeal. He had no involvement in the writing of this article.