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

Precedent (neutral citation)	Rule or Principle Cited For	Application by the Court
[1913] AC 417	Established the central principle of open justice: hearings in public unless there is a "strict necessity" to depart; exceptions to be narrowly construed.	The court treated this decision as foundational ("rock upon which the principles of open justice stand") and as setting the strict-necessity threshold that any derogation must meet.
[1975] 1 QB 637	Approved anonymisation of witnesses in criminal proceedings; held publication of anonymised witnesses' names could amount to contempt.	Used as authority that anonymisation can be a lesser interference with open justice than hearing in private and that contempt can enforce limits on publication.
[2004] UKPC 26	Privy Council held there is no common law power to postpone publication of reports of proceedings that have already taken place in open court; legislative power is required for orders against the world.	Relied on as a constraint on the scope of any common law power to impose reporting restrictions concerning material already deployed in open court.
[1979] AC 440	Lord Diplock's formulation that departures from open justice are justified only to the extent reasonably necessary to serve the ends of justice.	Used to frame the necessity test for derogations and to emphasise proportionality and limited scope of any restrictions.
[2004] UKHL 47	In the context of child identification, the House of Lords explained interplay between Articles 8 and 10 and promoted an "ultimate balancing test" focusing on comparative importance and proportionality.	Cited as setting out the ECHR-oriented approach to balancing privacy and expression; the court noted later authorities had developed aspects of that approach further.
[2010] UKSC 1	Recognised that courts can make anonymity orders to fulfil positive obligations under Article 8; clarified that section 11 is not the sole source of power to make reporting restrictions.	Used to confirm that the common law and Convention-based reasoning can support anonymity orders (WOs) and to provide the framework for assessing public interest in reporting.
40 EHRR 1	European Court guidance (Von Hannover No.2) on assessing competing Article 8 and 10 interests and the public-interest component of any restraint.	Referred to as part of the balancing framework to be applied when assessing whether publicity is justified.
[2004] 2 AC 457	Campbell: relevant guidance on Article 8/10 balancing and the structured assessment of privacy claims.	Cited to support the court's approach to the comparative-value analysis in the balancing exercise.
[2011] EWCA Civ 42	Set out practical approach to applications restraining publication of private information: close scrutiny, minimal interference, and several detailed procedural points.	Adopted as a procedural and substantive guide; the court summarised the key points (e.g. close scrutiny, minimal necessary restriction, giving press opportunity to be heard).
[2012] 1 WLR 1003	Practice Guidance on interim non-disclosure orders and the application of section 12 HRA to interim relief.	Applied to explain the requirements for interim orders and interim applications under the Human Rights Act.
[1985] 1 WLR 708	Referenced in discussion of the pre-conditions for the application of section 11 of the Contempt of Court Act 1981.	Used by earlier courts to support an argument that section 11 only arises where a name/other matter is already withheld in proceedings; the present court rejected the narrower reading.
[2008] QB 770	Case cited in the context of section 11 discussion and the pre-conditions for publication-prohibition directions.	Considered in the overall analysis of the statutory scheme; supported the court's textual reading of section 11 as requiring a WO to have been made but not necessarily made from the start of proceedings.
[2012] EWCA Crim 2434	Criminal Division decision (Press Association) which contained an obiter statement that section 11 might require a name to have been withheld "throughout the proceedings".	The present court disagreed with that obiter dictum and held there is no textual basis in section 11 for requiring the WO to have been made from the outset of proceedings.
[2015] EWCA Civ 96	(Dartford) Guidance for anonymity orders in the context of court approval of settlements under CPR Part 21.10: emphasised the protective function, suggested routine anonymisation at approval hearings and set out procedural steps.	The court held Dartford remains good law in large part and is binding where it applies (approval hearings), and that its guidance is broadly applicable to personal injury AOs with caveats and some procedural adjustments.
[2017] UKSC 44	(Khuja) A Supreme Court dictum that the common law power to sit in private or anonymise material has not extended to imposing reporting restrictions on what happens in open court; any such power must be statutory.	The trial judge had followed this dictum. The present court distinguished Khuja, holding it did not preclude a limited common law power to make RROs in the course of proceedings where strictly necessary for the interests of justice.
[2020] EWHC 1662	(PQ v Royal Free) Considered Dartford in the context of an AO before a liability trial and explained the "jigsaw effect" risk if liability reporting prejudiced later settlement-protection steps.	Used as an example where privacy concerns in liability proceedings can justify an AO to protect later settlement approval processes.
[2023] UKSC 47	(Wolverhampton) Fundamental review of the court's power to grant injunctions against non-parties, confirmed the flexible equitable jurisdiction, and discussed reporting restrictions in that context.	Invoked to show the development of the equitable jurisdiction and to distinguish RROs within proceedings from contra mundum equitable injunctions addressing external conduct.
[2025] UKSC 15	(Abbasi SC) Clarified the law on injunctions protecting identities post-proceedings, confirmed the equitable jurisdiction to grant contra mundum injunctions where necessary to protect Convention rights, and set out a structured approach to balancing rights.	The court relied on Abbasi SC to confirm that equitable and common law powers can protect interests related to court proceedings and that a structured Convention rights assessment is required; Abbasi reaffirmed Wolverhampton.
[2000] QB 775	(Broadmoor jurisdiction) Recognised the court's power to grant injunctions on application of public bodies in certain protective contexts.	Referred to in Abbasi and used to explain the breadth of jurisdictional foundations for protective orders in certain types of cases.
[1990] Fam 39	(In re C (A Minor)) Example of directions and contra mundum injunctions in wardship/medical treatment proceedings.	Cited in Abbasi to illustrate the court's power to restrain publicity in the interests of protecting carers and the administration of treatment.
[1977] Fam 58	(In re F (A Minor)) Example of reporting restrictions and contempt for publication contrary to court order.	Used to illustrate enforcement of reporting restrictions via contempt and the role of such orders in protecting vulnerable persons.
[2001] Fam 430	(Venables) Injunctions to protect the identity of a child criminal and related reporting restrictions to protect safety.	Referred to as an example of reporting restrictions used to protect an individual's safety (human-rights-based protection).
[2016] UKSC 26	(PJS) Confirmed that injunctions restraining publicity may be made even where significant prior press/social-media attention exists; prior publicity does not automatically preclude relief.	Cited to support the proposition that existing publicity is an important factor but is not an absolute bar to granting prospective protection.
[2015] AC 455	(Kennedy) Authority on fact-specific balancing exercises between competing rights.	Used to support the court's emphasis on an intense, fact-specific balancing exercise when considering derogations from open justice.
[1965] AC 201	(In Re K (infants)) Older authority on parens patriae and protective jurisdictions.	Referred to in the context of the court's protective functions and as background to A v BBC reasoning.
[2014] AC 700	(Bank Mellat) Referred in discussions about the relationship between open justice and other jurisdictional limits.	Used in the broader jurisprudential narrative supporting a domestic-law starting point for analysis.
[1963] 1 QB 696	(Attorney General v Butterworth) Observations on the administration of justice as a continuing process.	Quoted to show the court can take steps in current proceedings to protect future administration of justice interests.
[2007] SLT 462	(HM Advocate v M) Example where a section 11 order was made to protect a witness at trial for safety reasons.	Used as an example of a situation in which anonymity was necessary to protect safety and where section 11 had been used.
[2012] 55 EHRR 6	(Axel Springer AG v Germany) Grand Chamber guidance on structured approach to balancing Convention rights.	Invoked in Abbasi for the structured Convention rights assessment (prescribed by law, legitimate aim, necessity/fair balance).
[2016] EMLR 19	(Couderc v France) Grand Chamber guidance on deference to domestic authorities when they have applied balancing criteria.	Used to emphasise that national courts' assessments attract a margin of appreciation and require strong reasons before being overturned.
[2025] EWCA Civ 824	(Re HMP) Emphasised the purpose of open justice and limited third-party access unrelated to examining the work of the courts.	Used to contextualise the limits of open justice and to support the court's approach to what access the public should have to particular pieces of information.
[2025] EWCA Civ 42	(Tickle v BBC) Reaffirmed the starting presumption in favour of open justice and that substantial weight is to be accorded to openness.	Cited with approval to emphasise that the balance begins with a strong presumption in favour of open justice that must be displaced only by strong countervailing reasons.
[2023] 2 Cr App R 15	(R (Marandi) v Westminster Magistrates Court) Authority invoked on the need to avoid deciding cases on rival generalities.	Referenced by the trial judge in criticism of Dartford; the appeal court addressed the objection and explained the importance of fact-specificity.
[2022] EMLR 11	(Griffiths v Tickle) Cited in the trial judge's criticisms of certain guidance; concerned comparative method in privacy cases.	Referenced in the debate over procedural guidance and specificity of evidence; the appeal court considered those criticisms and adjusted Dartford's process in limited respects.

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.