In‑Proceedings Reporting Restrictions at Common Law: PMC v A Local Health Board [2025] EWCA Civ 1126

Introduction

The Court of Appeal’s decision in PMC v A Local Health Board ([2025] EWCA Civ 1126) addresses foundational questions about the source and scope of the courts’ powers to derogate from open justice in civil proceedings, particularly in clinical negligence claims involving children and protected parties and in subsequent approval applications under CPR Part 21.10. The case arose from a high‑value brain injury claim brought by a child through a litigation friend. The claimant sought an anonymity order (AO) combining a withholding order (WO) and a reporting restrictions order (RRO). Nicklin J refused, holding that there was no statutory basis for an RRO absent a WO within section 11 of the Contempt of Court Act 1981 and that prior publicity made anonymity unnecessary.

On appeal, the claimant challenged (i) the judge’s reliance on Lord Sumption’s dictum in Khuja v Times Newspapers Ltd that reporting restrictions on what happens in open court must have statutory footing; (ii) the judge’s refusal to follow aspects of JX MX v Dartford and Gravesham NHS Trust (Dartford) on routine anonymity for approval hearings; and (iii) the proposition that section 11 can only be engaged where a party’s name has been withheld “throughout” the proceedings (Re Press Association).

The defendant health board took a neutral stance. The Official Solicitor supported the appeal; the Personal Injuries Bar Association supported aspects. The BBC supported the first instance approach. The Court of Appeal—drawing on a chronology of authorities and assisted by the Advocate to the Court—issues a clarifying and practice‑shaping judgment with significant implications for open justice, privacy, and media reporting.

Summary of the Judgment

The Court of Appeal holds that there exists a limited common law power to derogate from open justice by making, within ongoing proceedings, both a WO and an RRO where strictly necessary in the interests of justice. Such RROs can restrain publication of specified information disclosed in proceedings, including material ventilated in open court. This power is distinct from equitable injunctions (contra mundum orders) grounded in section 37 of the Senior Courts Act 1981.
Section 11 of the Contempt of Court Act 1981 does not provide the sole source of RROs; it supplements common law. It is engaged only when and because a court has (and exercises) power to withhold a name or matter in proceedings; it then permits targeted directions to prevent publication of what is withheld for the purpose for which it was withheld.
Dartford remains largely good law and binding, though its ratio is confined to approval hearings under CPR Part 21.10. Its approach and guidance are broadly applicable—appropriately adapted—to AOs sought in personal injury claims by children/protected parties.
The obiter in Re Press Association (that section 11 requires a name to have been withheld “throughout the proceedings”) is rejected: neither jurisdiction nor section 11 imposes such a temporal precondition. An AO can be made later in proceedings, even after prior publicity, though the order may need to be purely prospective.
On the facts, a prospective AO is strictly necessary in the interests of justice given the claimant’s extreme vulnerability and the invariant intrusion of publishing medical, family, and financial details alongside his identity. The AO will not be retrospective and will not require takedown of prior reporting; nor will it prevent reporting of matters of public interest, including the hospital’s identity or the quantum of damages.
The Court refines process: approval hearings should be listed using a pseudonym or non‑identifying descriptor until the AO application is decided; the evidence required depends on the case; media notification is not invariably required absent an identified interest; and any order should be carefully drafted as to scope, prospective effect, and court record access. The Civil Procedure Rule Committee is invited to revisit Form PF10.

Doctrinal Analysis

Precedents Cited and Their Influence

Scott v Scott [1913] AC 417

Establishes the constitutional principle of open justice: hearings are public save in cases of “strict necessity.” The exceptions are non‑discretionary and aim at securing justice (e.g., parens patriae, secrecy essential to the process).
Influence: The Court uses Scott as the “rock” of open justice, but also as a springboard for modern development: the exceptions evolve where necessary to do justice.

R v Socialist Worker Printers [1975] 1 QB 637

Approves anonymising witnesses in a blackmail trial; publication of anonymised names may be contempt.
Influence: Recognises, pre‑1981, measures short of private hearings to protect justice and participants.

Section 11, Contempt of Court Act 1981

Authorises directions prohibiting publication of “a name or matter” withheld in proceedings, to the extent necessary for the purpose of withholding.
Influence: Confirms but does not exhaust the power to restrict reporting; requires a WO and confines RRO to the withholding’s purpose.

Independent Publishing Co v AG for Trinidad & Tobago [2005] AC 190

Holds that postponement of reporting of what occurred in open court requires legislation; endorses that reporting restriction powers are typically statutory in criminal contexts.
Influence: Cited by Lord Sumption in Khuja; distinguished here as dealing with post‑hoc constraints on reporting of already open hearings rather than in‑proceedings common law management to protect justice.

Re S (A Child) [2004] 1 AC 593

Introduces the structured Article 8/10 analysis (“ultimate balancing test”). Suggested, post‑HRA, the jurisdictional foundation for restraining publicity could be found in Convention rights.
Influence: Now re‑situated by A v BBC and Abbasi SC—Convention rights guide and constrain, but domestic common law and equity provide the source of powers; domestic law and ECHR “walk in step.”

Re Guardian News and Media [2010] 2 AC 697

Affirms power to make anonymity orders; clarifies section 11 is not the source of RRO power; emphasises the public value in naming participants, but not invariably decisive.
Influence: Supports the availability of non‑statutory orders restricting publication in appropriate cases.

JIH v News Group [2011] 1 WLR 1645

Sets out principles for anonymity and reporting restrictions: strict scrutiny; minimum restraint; no presumption; reasons to be given.
Influence: The Court of Appeal reiterates these safeguards and integrates them into the present framework.

Practice Guidance (Interim Non‑Disclosure Orders) [2012] 1 WLR 1003

Operationalises section 12 HRA: notice to media, interim approach, careful drafting.
Influence: Reinforces process discipline; the present case applies these principles contextually to AOs/RROs.

Re Press Association [2013] 1 WLR 1979

Obiter said section 11 requires withholding “throughout” the proceedings.
Influence: Expressly disagreed with here; section 11 has no such temporal requirement.

A v BBC [2015] AC 588

Lord Reed: open justice is a common law constitutional principle; courts have inherent power to qualify it where necessary in the interests of justice; examples of evolving categories; courts can take steps in current proceedings to avert future injustice.
Influence: Central authority on inherent power to grant WOs and RROs within proceedings and on the interests‑of‑justice test.

JX MX v Dartford and Gravesham NHS Trust [2015] 1 WLR 3647

Approval hearings under CPR 21.10 are protective. A limited derogation from open justice is ordinarily necessary; practical guidance for process and drafting.
Influence: Largely preserved; process adapted and clarified (e.g., listing by pseudonym).

Khuja v Times [2019] AC 161

Lord Sumption stated that common law does not extend to imposing reporting restrictions on what happens in open court—power must be statutory.
Influence: Distinguished and not followed on this point. The present case explains Khuja’s context (post‑trial reporting of matters already ventilated) and relies on subsequent Supreme Court authority (Wolverhampton, Abbasi SC) recognising common law RRO powers within proceedings.

PQ v Royal Free London NHS FT [2020] EWHC 1662 (QB)

Extends Dartford’s rationale to liability trials involving child claimants to prevent jigsaw identification undermining future approval hearings.
Influence: Supports prospective in‑proceedings anonymity to protect later stages.

Wolverhampton CC v London Gypsies and Travellers [2024] AC 983

Supreme Court’s “fundamental review” of injunctive relief: equitable jurisdiction under s.37 is inherent and flexible; distinguishes equitable injunctions from reporting restrictions; confirms reporting restrictions may be made under common law or statute.
Influence: Authoritative recognition that RROs can have a common law basis and are analytically distinct from equitable injunctions.

Abbasi v Newcastle upon Tyne Hospitals NHS FT [2025] UKSC 15

Clarifies taxonomy: (i) in‑proceedings management (WOs/RROs) under common law; (ii) contra mundum injunctions under equitable s.37 jurisdiction; (iii) statutory restrictions (e.g., s.11, s.4(2) CCA 1981). Reframes the Re S approach; requires a structured ECHR analysis with a domestic law starting point.
Influence: Decisive. Confirms common law power to grant RROs in proceedings, the separate role of section 11, and the proper structured methodology for balancing Articles 8/10.

Tic kle v BBC [2025] EWCA Civ 42 and Re HMP [2025] EWCA Civ 824

Tic kle: reiterated the substantial weight of open justice. Re HMP: clarified that open justice serves public scrutiny of the courts, not general third‑party information demands.
Influence: Frame the presumption and the purpose against which necessity is assessed.

The Court’s Legal Reasoning

There is a common law power to grant WOs and RROs within proceedings. The Court rejects the idea that all reporting restrictions on open‑court material must be statutory. Scott, A v BBC, Wolverhampton and Abbasi SC together establish the courts’ inherent authority to control proceedings in the interests of justice. While section 11 resolves certain cases, it does not extinguish the common law’s capacity to make necessary and targeted RROs in the conduct of proceedings.
Demarcation from equitable injunctions. Reporting restrictions made within proceedings are not equitable contra mundum injunctions (the latter restrain publication of out‑of‑court material and engage s.37). This distinction is central to correctly locating the jurisdictional basis and to avoiding category errors when applying open justice and Articles 8/10.
Section 11: scope and timing. Section 11 is engaged where a court “having power to do so” withholds a name or matter in proceedings; it then permits necessary consequential reporting restrictions. It does not require that withholding occurred from the outset or “throughout the proceedings.” The statutory language contains no such temporal precondition; the Court respectfully disagrees with the obiter in Re Press Association.
Dartford remains binding and broadly applicable. Dartford’s core holding and guidance survive. Approval hearings are protective; a limited derogation from open justice will “normally” be necessary to protect a child’s or protected party’s Article 8 interests while still holding hearings in public. The Court adapts the guidance: list by pseudonym or descriptor until the AO application is determined, and streamline media participation pragmatically.
Prior publicity is not an absolute bar. Khuja does not compel refusal where there has been earlier reporting. As PJS illustrates, prospective relief can be justified despite pre‑existing publicity. The appropriate response is usually a prospective order (without takedown) where strictly necessary.
Structured methodology and weight of open justice. The Court adopts the Abbasi SC structure: (a) interference prescribed by law; (b) legitimate aim; (c) necessity in a democratic society—where the fair balance between Articles 8 and 10 is struck. Open justice carries “very substantial weight,” but derogations are permissible where strictly necessary to do justice and to protect the integrity of the judicial process (CPR 39.2(4) aligns with this).
Application to the facts. Given an imminent quantum trial and/or approval hearing, publication of medical, family, and financial details alongside the child’s identity would be a serious and avoidable interference with Article 8 rights and risks to the effective administration of justice. A prospective AO proportionately protects the claimant without inhibiting reporting of matters of public interest (including hospital identity and damages).

Applying the Principles to the Case

The child claimant suffered profound brain injury and is permanently dependent. There has been some prior media coverage driven by parental engagement years earlier; the media organisation did not oppose protection of the family’s identities but objected to wider restrictions. The Court found:

A prospective AO is strictly necessary to protect the claimant’s interests of the highest order (privacy, safety from exploitation, dignity), to preserve the court’s ability to conduct later stages fairly, and to avoid “jigsaw” identification undermining approval hearings.
The order is limited and tailored: it withholds identifiers (name, address, immediate family details) prospectively and prohibits reports of proceedings containing those identifiers; it does not require removal of prior reporting; it does not suppress the defendant’s identity or the quantum.
Media oversight is respected: hearings remain public; judgments and orders will be published (subject to anonymisation as ordered); media can apply to vary or set aside.

Impact and Forward Look

Doctrinal and Practical Significance

Recalibration of jurisdiction: This judgment definitively recognises a limited common law power to impose in‑proceedings reporting restrictions (RROs) where necessary, alongside WOs, and independent of section 11 (though section 11 remains a complementary route when its preconditions are met).
Preservation and adaptation of Dartford: The approval‑hearing framework stands, with refinements (notably, listing by pseudonym or descriptor). Expect continued routine, carefully reasoned anonymity in such cases, subject to case‑specific necessity and proportionality.
Prospective orders despite prior publicity: Courts may grant AOs prospectively even when a claimant’s identity entered the public domain earlier; takedown is not presumptive and will rarely be appropriate in this context.
Structured proportionality as standard: Following Abbasi SC, judges should expressly work through legality, legitimacy, and necessity before striking the Article 8/10 balance, anchored in the common law of open justice.
Clear taxonomy reduces confusion: Practitioners should distinguish: (i) WOs/RROs within proceedings (common law and/or s.11), from (ii) equitable injunctions contra mundum (s.37, often post‑judgment or concerning events outside court), and (iii) statutory regimes (e.g., s.4(2), s.11, youth justice restrictions).

Practice Checklist (Civil PI claims by children/protected parties)

Make AO applications early. Use a pseudonym in listings until the AO is determined.
Evidence should:
- Set out the claimant’s vulnerabilities, nature of medical/family/financial information likely to be aired, and why linkage to identity risks harm or undermines the process.
- Address any prior publicity; propose a prospective order if appropriate.
- If future risks are hard to quantify, explain them with reference to experience in comparable cases (as Abbasi SC envisages).
Draft orders with two limbs:
- WO limb: Specify precisely what is withheld (names/addresses of the claimant, litigation friend, identified family members; and any material from the proceedings likely to identify them).
- RRO limb: Prohibit reporting that includes the withheld information; make the order expressly prospective; include an express proviso preserving prior reporting.
Open justice safeguards:
- Hearings remain in public; publish judgments/orders with appropriate anonymisation (CPR 39.2(5)).
- Only notify media in advance where there is a known interest; otherwise rely on publication of the order and the right to apply to vary/set aside.
- Ensure reasons are given for any derogation and keep the restraint to the minimum necessary.
Remember section 11: if a WO is made, consider whether a section 11 direction is also necessary to achieve the withholding’s purpose.
Anticipate CPR developments: PF10 is likely to be revised in light of this judgment—check current forms and practice directions.

Implications for Stakeholders

For claimants and families: Clearer, earlier, and targeted protections are available; anonymity is not automatic but is often achievable where justified.
For defendants (NHS bodies/insurers): Expect AOs to be commonly sought and often made; they do not inhibit reporting of public interest issues (care standards, liability, quantum), but they de‑link such reporting from the child’s identity.
For media: The press remains free to report the substance of proceedings. Restrictions will focus narrowly on identifiers and materials necessary to protect vulnerable parties. Prior publications are unaffected by prospective AOs.
For courts: The judgment supplies a coherent jurisdictional map and process, reduces friction with the media, and promotes consistent handling across PI and approval lists.
For rule‑makers: The CPRC is invited to revise PF10 to reflect this framework (e.g., listing conventions, drafting prompts for prospective orders and provisos about prior reporting).

Complex Concepts Simplified

Open justice: The default that courts sit in public, the public and media can attend, and fair, accurate reporting is allowed. It underpins confidence in the administration of justice.
Withholding order (WO): An in‑proceedings order that conceals specific information (e.g., a name) from the public during a hearing and in court documents.
Reporting restrictions order (RRO): An order, usually made in proceedings, prohibiting publication of specified information connected to the case (often the material withheld by a WO). It may bind the world at large, but its basis here is the court’s common law power to manage its process.
Anonymity order (AO): A combined WO + RRO. It both withholds identifying information and prohibits publication of that information in reports of the case.
Section 11 (Contempt of Court Act 1981): A statutory mechanism permitting the court to prohibit publication of a name or matter that the court is (and has power to be) withholding in proceedings, to the extent necessary to achieve the withholding’s purpose. It complements, but does not replace, common law powers.
Equitable (contra mundum) injunction: An injunction (under the court’s equitable jurisdiction and section 37 SCA 1981) restraining publication of information generally, often about events outside court proceedings. Distinct from an RRO made within proceedings.
Parens patriae: The court’s inherent protective jurisdiction (historically exercised on behalf of the Crown) to protect children and those lacking capacity, typically engaged in family or medical treatment cases.
Structured proportionality (Abbasi SC): When rights under Articles 8 and 10 conflict, the court asks: (1) Is the interference “prescribed by law”? (2) Does it pursue a “legitimate aim”? (3) Is it “necessary in a democratic society”? The fair balance is struck at stage (3), informed by Strasbourg factors and very substantial weight to open justice.
“Jigsaw” identification: The risk that separate pieces of information, each innocuous alone, can be combined by readers to identify a protected person.
CPR 39.2(4)-(5): Mandates non‑disclosure of identity where necessary to secure the proper administration of justice and to protect a person’s interests, and requires publication of the order on the judiciary website (with right to attend/vary).
CPR 5.4C/D: Governs non‑party access to statements of case and court records; AOs typically restrict provision of non‑anonymised documents.

Conclusion and Key Takeaways

The Court of Appeal confirms a limited common law power to make in‑proceedings WOs and RROs as necessary derogations from open justice, distinct from equitable contra mundum injunctions under section 37 SCA 1981.
Section 11 is ancillary and purposive: it can be used when a WO has been made in the proceedings, but it is not the only available route. It does not require the identity to have been withheld from the outset.
Dartford stands. Approval hearings are protective; a limited derogation is ordinarily necessary and should be managed transparently, minimally, and efficiently, with adapted listing practices.
Khuja does not preclude common law RROs in the present context; it concerned post‑hoc reporting of material already aired in public and is superseded in this respect by later Supreme Court guidance (Wolverhampton; Abbasi SC).
An AO can be granted prospectively despite prior publicity. Orders should be tightly drawn to withhold identifiers and restrict reporting of those identifiers, while preserving the ability to report on issues of public interest (including defendants’ identity and damages).
Open justice retains very substantial weight. Derogations require strict necessity, clear reasons, and the least restrictive means. The Abbasi SC structured analysis now sets the standard methodology.
This judgment supplies long‑needed clarity on jurisdiction, methodology, and process. Its influence will be immediate in PI claims by children/protected parties and in approval applications, and will inform broader practice on how courts, parties, and the media navigate open justice and privacy in the digital era.

Citation: PMC v A Local Health Board [2025] EWCA Civ 1126 (CA, 28 August 2025).