This article first appeared in the Personal Injury Law Journal
Facts
The Claimant suffered very severe
injuries at the time of birth, and brought proceedings alleging the Defendant
hospital had been negligent, with her mother acting as litigation friend. The
case settled, with the Claimant receiving a large lump sum, and substantial
periodical payments. At the approval hearing the Claimant’s mother requested an
anonymity order, providing evidence she was concerned about the loss of
privacy, and that people might start looking to her for payments if the
compensation became public.
At first instance, Tugendhat J
refused to grant the anonymity order, finding on the evidence that there were
no specific risks that made this necessary: the Claimant’s affairs would be
looked after by a professional deputy, and the mother’s fears were not
objectively well founded. He did order though that the Claimant’s address
should not be disclosed. The Claimant appealed to the Court of Appeal.
Open Justice
Moore-Bick LJ gave the only
judgment. He began with a lengthy perusal of the many cases confirming the
importance of open justice. These long standing principles are now set out in
the Civil Procedure Rules, Part 39.2(1) of which provides:
“The general
rule is that a hearing is to be in public.”
In JIH v News Group Newspapers Ltd, a case concerned with preventing
the publication of personal information, Lord Neuberger MR identified the
following general principles:
- An order for anonymity should not be made simply because the parties consent to it;
- The Court should consider carefully whether some restriction on publication is necessary at all, and, if it is, whether adequate protection can be provided by a less extensive order than that which is sought;
- If the application is made on the basis that publication would infringe the rights of the party himself or members of his family under Article 8, it must consider whether there is sufficient general, public interest in publishing a report of the proceedings which identifies the party concerned to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.
Moore-Bick LJ confirmed that any
departure from open justice needed to be justified strictly on the grounds of
necessity, which meant such an order was the minimum consistent with achieving
the ultimate purpose of doing justice in the instant case. The Court was clear
that it was not appropriate to balance the demands of privacy and freedom of expression.
Approval Hearings
Any proposed settlement for a
child or protected party must be approved by the Court, before it is binding on
the parties (CPR 21.10).
Previously, in the case of Scott v Scott, the House of Lords ruled
in cases concerning what were then known as wards of court and lunatics, the
Courts were not exercising the same function as when determining disputes, but
were instead exercising an administrative function as parens patriae, which
justified a departure from the principle of open justice.
The rules on exceptions to the
principles of open justice are set down in the CPR, rule 39.2(3) of which
provides:
A hearing, or
any part of it, may be in private, if: -
(d)
a private hearing is necessary to protect the interests of any child or
protected party; [or]
(g)
the court considers this to be necessary, in the interests of justice.
In practice, if a Claimant wanted
an anonymity order for an approval hearing they needed to provide specific
reasons, and inform the Press Association, who were entitled to attend the
hearing, and object. The Judge approving the settlement would make a decision
on a case by case basis, with critics arguing this led to an inconsistent
approach by the judiciary.
Moore-Bick LJ was concerned that
the Courts now have a much broader jurisdiction in relation to children and
those that lack capacity, for example in determining disputes between public
authorities and private individuals, and much of this jurisdiction is governed
by Statute. He reasoned that these changes meant it could no longer be argued
that in such cases the Court was not exercising its judicial functions in
approving cases.
Was an Order necessary?
Moore-Bick concluded that
although approval hearings did not lie outside the scope of the principle of
open justice, in the pursuit of justice Courts should be more willing to
recognise a need to protect the interests of claimants who are children or
protected parties, including their right to privacy.
He reasoned that the Court was
essentially dealing with private business and its function was essentially
protective, similar to when it exercised parens patriae on behalf of the Crown,
and fundamentally different from its normal function of resolving disputes
between parties to proceedings. Moore-Bick LJ was also influenced by Article 14
of the ECHR, which provides that all the other Convention Rights must be
applied without discrimination. Adults with full capacity were free to settle
their cases in private, and children and protected parties were entitled to the
same respect for their private lives. Anonymising mitigates to some extent the
“inevitable discrimination between these different classes of litigants”.
Human Rights
In addition to the common law,
this case can also be analysed in terms of arguments about human rights,
particularly Articles 8 and 10. Framed in this way, the issue is whether it is
necessary to interfere with the rights of the public and the Press under
Article 10 in order to protect the rights of the Claimant and their family under
Article 8, and vice versa. Moore-Bick concluded: “The approach is the same
whether the question be viewed through the lens of the common law or that of
the European Convention on Human Rights…”.
Type of order
The Press Association argued that
in most cases an Order under s39 of the Children and Young Persons Act 1939
will be more appropriate than an anonymity order. This is an Order prohibiting
publication of information calculated to lead to the identification of the
Claimant, which involves a lessor interference with the principle of open
justice than an anonymity order. In a previous case of MXB v East Sussex Hospitals, Tugendhat J held such an Order might
not provide adequate protection long term, because of the opportunity for
informal publication of information on the internet, which might be easily
accessible indefinitely. Moore-Bick LJ was also concerned that section 39
ceased to have effect when a child turned 18, and did not apply to protected
parties.
He held the minimum necessary to
do justice in the case was an anonymity order, by which he meant an order
prohibiting the publication of the Claimant’s name and address, and that of
their litigation friend and family, and a restriction on access by non-parties
to documents in the Court records.
Principles for lower courts
Moore-Bick LJ stressed that a
decision was necessary in every case to decide whether a derogation from the
principle of open justice is necessary to ensure that justice is done. However,
he continued that fine distinctions were difficult to justify and not easily
understood, and the Courts ought normally to grant an anonymity order without
the need for a formal application, unless satisfied that it was unnecessary or
inappropriate to do so. A Claimant did not need to identify specific reasons,
although if they did that would provide a further reason for derogating from
the principle of open justice. He continued that the Press need no longer be
formally notified when an anonymity order was being considered, however they
ought to be given an opportunity to make submissions before any order was made
restricting publication of the reporting of proceedings, such as the
circumstances giving rise to the claim or the settlement amount.
Moore-Bick LJ concluded by
advising Judges in lower courts considering approval hearings to recognise they
were dealing with private business in open Court. He held that the following
principles ought to apply:
(i)
The hearing should be listed for hearing in
public under the name in which the proceedings were issued, unless by the time
of the hearing an anonymity order has already been made;
(ii)
Because the hearing will be held in open court
the Press and members of the public will have a right to be present and to
observe the proceedings;
(iii)
The Press will be free to report the
proceedings, subject only to any order made by the judge restricting
publication of the name and address of the claimant, his or her litigation
friend (and, if different, the names and addresses of his or her parents) and
restricting access by non-parties to documents in the court record other than
those which have been anonymised (an “anonymity order”);
(iv)
The judge should invite submissions from the
parties and the Press before making an anonymity order;
(v)
Unless satisfied after hearing argument that it
is not necessary to do so, the judge should make an anonymity order for the
protection of the claimant and his or her family;
(vi)
If the judge concludes that it is unnecessary to
make an anonymity order, he should give a short judgment setting out his reasons
for coming to that conclusion;
(vii)
The judge should normally give a brief judgment
on the application (taking into account any anonymity order) explaining the
circumstances giving rise to the claim and the reasons for his decision to
grant or withhold approval and should make a copy available to the Press on
request as soon as possible after the hearing.
Conclusion
This case has been welcomed by
many representing Claimants, ending an anomaly that meant highly personal
medical information was made public. Approval hearings, unlike many hearings
involving children and protected parties, are still held in public, with the
PIBA and the Claimant accepting a full anonymity order provided sufficient
protection for the Claimant and her family. The Press remain free to attend all
approval hearings, and to report matters of public interest, such as the
settlement amount.
Of course, the above departures
from the principles of open justice do not apply to any contested personal
injury cases.
