Factual and Procedural Background
This appeal concerns a court application for approval of a compromise of a personal injury claim brought by a child. The claimant, a six-year-old child who suffered severe injuries at birth and will be a protected party as an adult, brought proceedings against a defendant hospital trust alleging negligence. The defendant agreed to settle by paying a significant sum in damages. The settlement required court approval. The trial judge was asked to make orders to withhold the claimant's identity from the public indefinitely, including prohibiting access to statements of case by non-parties. The judge refused to order anonymity of the claimant's name but prohibited disclosure of her address. The claimant appealed the refusal of anonymity. This judgment addresses that appeal.
Legal Issues Presented
- Whether the court should exercise its power to withhold the identity of a claimant child in approval proceedings for a settlement of a personal injury claim, thereby derogating from the principle of open justice.
- What criteria and principles govern the court’s discretion to grant anonymity orders in such cases involving children or protected parties.
- Whether the nature of approval hearings for settlements involving children or protected parties justifies a general presumption in favour of anonymity orders.
- The appropriate form and scope of any anonymity order balancing open justice and privacy rights.
Arguments of the Parties
Appellant's Arguments
- The appellant argued that the present case is indistinguishable from prior cases where anonymity orders were granted to protect claimants who are children or protected parties.
- She submitted that the risk of interference with the claimant’s and her family’s private and family life is self-evident and does not require detailed articulation in evidence.
Intervener (Personal Injury Bar Association) Arguments
- Supported the appellant’s position and further submitted that the claimant’s identity should normally not be disclosed in reports of approval hearings.
- Justified this on three grounds: the protective nature of court approval proceedings; the serious invasion of privacy involved in publishing personal medical information; and the inherent disadvantage children and protected parties face by having to seek court approval in open proceedings unlike adult litigants.
- Argued that anonymisation would ensure proportionality and prevent excessive discrimination against vulnerable litigants.
- Maintained that withholding the claimant’s identity would not prevent publication of matters of genuine public interest.
Intervener (Press Association) Arguments
- Emphasized the constitutional importance of open justice and the role of the press as the public’s eyes and ears.
- Noted that stories without names attract less public interest and that the trial judge was correct to refuse anonymity.
- Suggested that in most cases an order under section 39 of the Children and Young Persons Act 1933 is preferable to an anonymity order despite concerns about long-term protection.
Friend of the Court Arguments
- Reminded the court of the relevant legal principles and cautioned against broadly adopting the intervener’s submissions without case-by-case consideration.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Scott v Scott [1913] AC 417 |
Established the fundamental principle of open justice and its exceptions, including cases involving wards of court and protected parties. |
Used to frame the principle of open justice and to acknowledge exceptions where privacy may override publicity. |
| A v British Broadcasting Corporation [2014] UKSC 25 |
Clarified the scope of open justice and exceptions, emphasizing the need to do justice in a broader sense. |
Supported recognition that courts must balance open justice with justice to vulnerable parties. |
| Attorney-General v Leveller Magazine Ltd [1979] AC 440 |
Held that principles of open justice apply to anonymisation of party or witness identities. |
Supported the court’s power to withhold party identity when necessary to protect interests. |
| Bank Mellat v Her Majesty's Treasury (No. 1) [2013] UKSC 38 |
Affirmed the fundamental nature of open justice but recognized inherent powers for private hearings when strictly necessary. |
Reinforced the necessity test for derogations from open justice and minimum intrusion principle. |
| JIH v News Group Newspapers Ltd [2011] EWCA Civ 42 |
Provided guidance on injunctions preventing publication of private information and principles for anonymity orders. |
Applied to emphasize necessity, minimum restriction, and public interest balancing in anonymity applications. |
| Independent News and Media Ltd v A [2010] EWCA Civ 343 |
Confirmed longstanding common law exceptions permitting private hearings to protect vulnerable parties. |
Supported the protective nature of privacy measures in cases involving children and protected parties. |
| R v Legal Aid Board Ex parte Kaim Todner [1999] QB 966 |
Advised caution against erosion of open justice principle through accretion of exceptions. |
Warned against expanding anonymity orders beyond necessity and stressed case-specific assessment. |
| Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109 |
Recognized the press as the public’s “eyes and ears” in open justice. |
Supported the importance of transparency and public reporting in judicial proceedings. |
| B & P v The United Kingdom (Appln Nos. 36337/97 and 35974/97) |
European Court of Human Rights recognized privacy needs of children and justification for private hearings. |
Supported balancing privacy rights against open justice in cases involving children. |
Court's Reasoning and Analysis
The court acknowledged the fundamental importance of the principle of open justice, which requires hearings and identities of parties to be public, but recognized established exceptions, particularly for children and protected parties. The court reviewed relevant authorities emphasizing that any derogation from open justice must be strictly necessary and the minimum required to do justice. The court distinguished the protective function of approval hearings for settlements involving children and protected parties from ordinary adversarial litigation, noting the court’s role is to ensure proper compensation and protection rather than resolve disputes.
The court considered the trial judge’s refusal to make an anonymity order, noting the judge focused heavily on specific tangible risks to the claimant and family, such as theft or exploitation, which were not evidenced. The appellate court found this approach too narrow and that the judge undervalued the importance of protecting the privacy and family life of the claimant and her family from the publicity of approval hearings. The court accepted that such privacy concerns need not always be articulated in detail and that formulaic evidence is not necessarily insufficient.
The court further reasoned that approval hearings, while held in open court, are essentially private business and that the public interest in open justice can usually be served without disclosing the claimant’s identity. The court emphasized the need to minimize discrimination against children and protected parties who must seek court approval, unlike adult litigants who can settle privately.
The court concluded that a limited derogation from open justice through an anonymity order is normally necessary in approval hearings involving children or protected parties to protect their private and family life. It held that such orders should prohibit publication of the claimant’s name, address, and related identifying information, balancing the public’s right to observe proceedings with the claimant’s privacy rights.
The court stressed the need for consistency in these decisions to avoid confusion and disrepute to the administration of justice and provided guidance for future cases, including that anonymity orders should be made as a matter of course unless the court is satisfied it is unnecessary or inappropriate. The press should be allowed to attend and make submissions, but anonymity orders should generally be granted to protect vulnerable claimants and their families.
Holding and Implications
The court ALLOWED THE APPEAL and held that the trial judge erred in refusing to make an anonymity order preventing publication of the claimant’s and her family’s names.
The court directed that anonymity orders should normally be made in approval hearings involving children or protected parties to protect their privacy and family life, subject to submissions from the press and parties. Such orders should prohibit publication of names, addresses, and restrict access to court documents by non-parties. This approach balances the constitutional principle of open justice with the need to do justice to vulnerable claimants by protecting their private lives.
No new precedent was created beyond reinforcing the strict necessity test for derogations from open justice and providing procedural guidance for judges in approval hearings involving children and protected parties.