taysilhouetteThe Court of Appeal should deal with the issue of how judges should approach the applications for anonymity which are increasingly being made in cases involving settlements of claims such as medical negligence cases, according to a senior judge.

Mr Justice Tugendhat gave this indication in a decision in which he explained why he refused to grant anonymity to a family which had reached a multi-million pound settlement with an NHS trust over a claim which led to the birth of a little girl with severe physical and learning difficulties ([2013] EWHC 3956 (QB)).

The judge gave the family permission to appeal against his refusal of an anonymity order.

Mr Justice Tugendhat said that until recently applicants in hearings seeking the court’s approval of a settlement had not sought anonymity:

“Claimants in actions for damages for personal injuries have generally been named. This has been so even where the claims arose out of injuries sustained at birth, where the evidence included the highly private facts of the medical treatment of the mother as well as of the child,

But applications for anonymity were now made in most approval hearings, if an order had not already been made by the Master.

Elizabeth-Anne Gumbel QC, for the child’s mother, had argued that the reason for the growth in anonymity applications was the internet, which meant that information which was once ephemeral was recorded in permanent form, indefinitely discoverable with a search engine.

Mr Justice Tugendhat said claimants’ counsel in these cases commonly argued that there was no issue – if no media organisation opposed the application – or that any issue there might be was between the claimant’s rights and the media’s right to freedom of expression.

But he said that this is not the correct analysis:

“The question at issue is whether the court should grant a derogation from open justice, and from the rights of the public at large. The fact that no media organisation opposes an application, or even the fact (if it be such) that there is consent to the order, does nothing to relieve the court of its obligation to apply the law on open justice for the benefit of the public at large.

The authorities – R v Westminster City Council, Ex p P ((1998) 31 HLR 154, 163) and JIH v News Group Newspapers Ltd ([2011] EWCA Civ 42, [21(7)]) – suggested that the contrary was the case, he added.

A judge’s decision on anonymity was also made more difficult by the circumstances in which applications were usually made, and almost all cases where the court’s approval was needed to a settlement were utterly tragic.

In this case the child’s mother – her litigation friend – had had made a witness statement supporting the anonymity application. But it was “formulaic” and did identify any specific facts which might give rise to a risk from which the claimant needed protection through an anonymity order.

 “Her main concern is the distress she and the family expect to suffer if there is publicity,” the judge said, adding: “I accept that these concerns are ones which are sincerely held. But they are no more than concerns. And the court is given no information as to what, if any, consideration may have been given to alternative measures (not involving derogation from open justice) to address these concerns.”

Mr Justice Tugendhat said:

“I cannot accept that the litigation friend’s expressed concerns about the vulnerability of the claimant and the family are objectively well founded, and, even if they were, that the risks are such that a derogation from open justice would be either a necessary or a proportionate measure to address those risks.

A journalist who was in court for the hearing had, when asked to make representations, pointed out that while he and his colleagues had no wish to cause anyone distress, they did want to report the proceedings.

Now, almost every settlement case was being anonymised, and in many cases journalists were not given copies of the orders or any other papers, and the anonymity orders made it difficult for them to ask the court for copies from the file.

He said that

“The result is that the journalists cannot in practice report even those details of the case which the court might intend to be reportable,”

He added that these fears were consistent with those expressed by Lord Rodger in Re Guardian News and Media Ltd, Re HM Treasury v Ahmed ([2010] UKSC 1; [2010] EMLR 15, [2010] 2 AC 697). Lord Rodger had said

“… even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique … A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.” [63]

Mr Justice Tugendhat said he had been told that Mr Justice Dingemans had suggested in an unreported case that notice of an intention to apply for an anonymity order should be given via the Press Association’s Injunctions Alerts Service.

 “There is a practice direction in the Family Division, although not in the Queen’s Bench Division, and it is that that the claimant had followed. I would not dissent from this guidance as a matter of practice.  Whether or not it makes a difference is something which may need to be investigated, although it is not obvious how any such investigation might take place.”

But he had held in CVB v MGN Ltd ([2012] EWHC 1148 (QB)) which was not on an approval hearing) that there was no requirement under section 12 (2) of the Human Rights Act or Rule 23 of the Civil procedure Rules (CPR) for a claimant to give notice to an intended defendant or to anyone else of an application for an anonymity order derogating from Rule 16 of the CPR.

The judge added:

“Given the state of affairs described in this judgment, I granted permission to appeal because there is a real prospect of success, and in any event the uncertainty as to what judges should do in relation to anonymity applications in approval hearings is a compelling reason why an appeal should be heard.”

While he had refused to make the anonymity order sought, he had ordered that the family’s address could not be published.

The judge said:

The claimant is identified only by letters in this judgment because I gave permission to appeal. I granted the anonymity order sought until determination of any appeal, until discontinuance of any appeal, or until the time for serving notice of appeal expires without such a notice having been filed. If I had not done that, the purpose of any appeal would have been defeated.”

This article originally appeared on the online subscription service Media Lawyer and is reproduced with permission and thanks.