PMC v A Local Health Board

Factual and Procedural Background

This appeal concerns an application for an anonymity order (AO) and associated reporting restriction measures in a high-value clinical negligence action brought on behalf of a severely injured child (the Plaintiff). The Plaintiff was born in 2012 at a hospital operated by the defendant authority (referred to below as "The Hospital") and suffered a large intraventricular haemorrhage around birth that resulted in cerebral palsy. The Plaintiff is profoundly disabled and dependent on others for care.

A claim for damages was initiated following a letter in October 2013. Liability was admitted in 2016 and a liability judgment was entered by consent in November 2023. Interim payments were made before the claim form was issued (the claim form was issued in March 2023), and those payments have been managed by a professional deputy appointed by the Court of Protection. Directions fixed a 10-day quantum trial for December 2025. To date there have been no substantive hearings on the merits.

In November 2024 the Plaintiff applied (form PF10) for an anonymity order (AO) on two broad bases: (i) that the Plaintiff was unlikely to have capacity to conduct proceedings or manage his affairs on reaching adulthood, and (ii) that disclosure of medical and financial details and publicity about interim payments or any settlement would unjustifiably interfere with the Plaintiff's private and family life (Article 8 ECHR). Evidence in support identified pre-existing media coverage (at least two articles from 2020–2021 arising from the Plaintiff's mother's engagement with a media outlet), further media interest, and concerns that the Plaintiff was vulnerable to exploitation.

The Plaintiff sought immediate without-notice interim relief which the trial judge (Judge Nicklin) refused, applying section 12 of the Human Rights Act 1998 and Article 10 ECHR principles. Instead the trial judge ordered an urgent substantive hearing, service of evidence on the media organisation (referred to below as "Company A"), and further factual material about press coverage and any open hearings. The substantive application was heard on 6 November 2024 and the trial judge delivered a full written judgment on 24 November 2024 refusing the AO.

The trial judge refused the AO primarily on two bases: (a) he considered there was no statutory foundation to make a reporting restrictions order (RRO) in the absence of a withholding order (WO) under section 11 of the Contempt of Court Act 1981, and (b) he found the evidence did not support a WO because material about the Plaintiff was already in the public domain. The Plaintiff appealed.

On appeal the Defendant (The Hospital) was neutral; the Official Solicitor supported the appeal; the Personal Injuries Bar Association supported aspects of the Plaintiff's case; and the broadcaster intervenor that supported much of the trial judge's approach is referred to below as "Company B." The Advocate to the Court provided historical background.

Legal Issues Presented

1. Whether, and to what extent, the common law (inherent) jurisdiction of the courts includes the power to make reporting restriction orders (RROs) in the course of civil or family proceedings — in particular orders that prevent reporting of information disclosed in open court or documents placed before the court.
2. How section 11 of the Contempt of Court Act 1981 interacts with any common law power: what pre-conditions and limits does section 11 impose on the court's ability to make RROs linked to withholding orders (WOs)?
3. Whether the Court of Appeal's guidance in the approval-hearing context (Dartford) remains good law and, if so, whether and how it should be applied to anonymity orders in personal injury actions brought by children and protected parties.
4. Whether an anonymity order may be made prospectively where aspects of the claimant's identity or circumstances have already been publicised, or whether prior publicity is a bar to such orders.

Arguments of the Parties

Plaintiff's Arguments

• The Plaintiff sought an AO because of the Plaintiff's severe vulnerability, likely future lack of capacity, the intrusive nature of the litigation (medical details, interim payments, settlement sums), and the need to protect Article 8 rights.
• The Plaintiff argued that an AO could be made prospectively and need not be retrospective; the fallback drafting inserted the phrase "from the date of this order" to make that clear (as advanced by Attorney Weir).
• The Plaintiff appealed the trial judge's legal conclusions that (i) there was no common law basis for making an RRO absent a WO (per section 11), and (ii) that the judge should have followed the dictum in the decision cited at [2017] UKSC 44 rather than earlier authority which recognised a common law jurisdiction to qualify open justice.

The Hospital (Defendant)

• The Hospital adopted a neutral position on the appeal (no active opposition to the Plaintiff's appeal was recorded in the opinion).

Company A (media organisation identified in the factual material)

• Company A did not oppose an order protecting the identity of the Plaintiff and family, but objected to any order preventing reporting of the name of the hospital in future phases of the litigation or to prohibitions on reporting the amount of any settlement.

Company B (broadcaster intervener)

• Company B supported most aspects of the trial judge's judgment, in particular the trial judge's reliance on the dictum in the authority at [2017] UKSC 44.

Official Solicitor and Other Interveners

• The Official Solicitor supported the appeal; the Personal Injuries Bar Association supported aspects of the Plaintiff's case. The Advocate to the Court supplied historical and contextual background at the court's request.

Table of Precedents Cited

Court's Reasoning and Analysis

The court approached the matters in stages: first by analysing the taxonomy and terminology (WO = withholding order; RRO = reporting restrictions order; AO = both together), then by reviewing the historical authorities in chronological order, and finally by applying the principles to the facts of this case.

Primary legal conclusions reached:

• The common law is capable of development and, properly understood, there exists a limited common law (inherent) power in civil and family proceedings to derogate from the open justice principle by making within proceedings both a WO and an RRO where such orders are strictly necessary in the interests of justice. That kind of RRO prevents publication, in connection with the proceedings, of specified material disclosed during those proceedings (whether in open court or in documents placed before the court).
• This common law power is distinct from the court's equitable jurisdiction to grant injunctions contra mundum (against the world) in relation to events occurring outside court proceedings (now reflected in section 37 of the Senior Courts Act 1981). The latter is a different species of remedy and often addresses publicity about matters not disclosed in open court.
• Section 11 of the Contempt of Court Act 1981 is directed to "publication of matters exempted from disclosure in court." Its procedural pre-condition requires: (i) a court that has power to withhold a name or other matter and (ii) an actual withholding in the proceedings before directions under section 11 can be given. Section 11 therefore has a limited and textually constrained role: it authorises the court, once a WO is made, to give directions prohibiting publication "as appear to the court to be necessary for the purpose for which it was so withheld."
• The court rejected the narrower reading suggested by an obiter in the criminal appeal decision at [2012] EWCA Crim 2434 (that section 11 requires the name to have been withheld "throughout the proceedings"). Nothing in the wording of section 11 mandates that the WO must have been in place from the start of proceedings.
• The court held that the trial judge was wrong to prefer the dictum in [2017] UKSC 44 (Khuja) as establishing that the common law never extended to imposing RROs on what happens in open court. The appeal court gave three principal reasons why that dictum could not be treated as decisive here: (i) Khuja involved an application after material had already been deployed at trial and so presented different concerns; (ii) other authorities (including the historical line from Scott v. Scott, decisions such as A v. BBC, and the Supreme Court's subsequent work in Wolverhampton and Abbasi SC) demonstrate that the common law has developed to permit, in limited circumstances, RROs made within proceedings; and (iii) there are clear indications in the authorities that the common law power may be deployed to protect vulnerable parties in appropriate cases.
• Dartford remains good law in large part and binding in its context: it provides a considered process for approval hearings under CPR Part 21.10 and practical guidance for first-instance judges. The court accepted much of Dartford but recommended procedural adjustments (for example, to avoid listing applications in a way that advertises the claimant's identity before the AO is determined and to streamline notification to the media where no third-party interest is apparent).

Application to the facts:

• On the facts (liability admitted, a very serious lifelong injury, large interim payments, a quantum trial listed, and prior media coverage that nevertheless did not include the specific litigation details), the court concluded that a properly drafted prospective AO was strictly necessary in the interests of justice to protect the Plaintiff's private and family life and to secure the proper administration of justice in the proceedings to come.
• The court emphasised that the AO could only be prospective (not retrospective) because of the pre-existing publicity. The court also emphasised that the AO should be narrowly tailored: it should identify precisely the material to be withheld after the date of the order and the RRO element should prohibit, after that date, reports of or concerning the proceedings which include the material the WO protects. The order must make clear that pre-existing media coverage is not covered by the new AO.
• The court declined to adopt the trial judge's view that Dartford wrongly reversed the burden of proof or created an unwarranted presumption of anonymity. Instead, the appeal court explained that Dartford provided a pragmatic process for approval hearings and that the trial judge's criticisms were not sufficient to displace the guidance save for a limited procedural adjustment noted above.

Holding and Implications

Final holding: The appeal was ALLOWED. The Court concluded that a properly drafted prospective anonymity order is strictly necessary in the interests of justice in this case and that the trial judge was wrong to refuse the AO on the grounds stated in his judgment.

Direct consequences for the parties:

• The Court allowed the Plaintiff's appeal and directed that an anonymity order be made in prospective terms. The AO should (i) specify precisely the identity-related material to be withheld after the date of the order (for example the name and address of the Plaintiff, the litigation friend and specified immediate family members and other material likely to identify them), and (ii) include a reporting restriction that prohibits reports after the date of the order which contain material falling within the WO. The order should expressly exclude pre-existing media coverage from its scope.
• The Court invited submissions from counsel as to the precise drafting of the order in light of the guidance in the judgment.

Broader implications for practice and precedent:

• The judgment clarifies that there is a limited common law power to make RROs within court proceedings, distinct from equitable contra mundum injunctions directed at publication about events outside court. Section 11 of the Contempt of Court Act 1981 is important but limited in scope; it presupposes a WO and authorises directions necessary for the purpose for which the WO was made.
• Judge-made guidance in Dartford remains a significant and largely authoritative starting point for AOs in approval hearings under CPR Part 21.10, subject to the caveats and procedural adjustments endorsed in this judgment. The court recognised the need for first-instance judges to follow a consistent but fact-specific process in these sensitive applications.
• The court signalled that prior publicity does not automatically prevent the grant of prospective anonymity or reporting-protection measures (consistent with authority such as PJS). Each case requires an intense, fact-specific balancing exercise and narrow tailoring of any derogation from open justice.
• The judgment invited the Civil Procedure Rule Committee to consider whether form PF10 (which implements certain aspects of Dartford) requires revision in light of the Court's analysis.
• The decision does not abolish the strong presumption in favour of open justice; it reaffirmed that very substantial weight is to be given to openness and that derogations are to be strictly necessary and proportionate.

Note: This summary is strictly confined to the content of the provided opinion and does not add, infer, or speculate beyond what the court stated in that opinion.