On 4 December 2014 the Court of Appeal (Munby P, Lewison and King LJJ) will hear the appeal in the case of JXMX (A Child) v Dartford and Gravesham NHS Trust dealing with the question of whether anonymity orders should be made at approval hearings in personal injury cases brought by children or protected persons.
In this case the Claimant is a vulnerable child who was very seriously injured as a result of the events surrounding her mother’s treatment shortly before her birth and her delivery. The Claimant lives at home with her mother and father and attends a special school, she has a team of carers and therapists working with her and one to one support at school.
The Claimant’s litigation friend believed the Claimant’s family would be vulnerable to exploitation if it were known that the Claimant has had an award of damages amounting to several million pounds. Publicity about the amount of her award of damages could well lead to attempts to exploit her mother and father or other members of the family even though her damages were going to be managed by the Court of Protection.
As a result, Tugendhat J was asked to make an order to ensure that details of the case should not be subject to any publicity in which the Claimant or her family were identified. He gave judgment on 17 December 2013 ( EWHC 3956 (QB)).
He noted that
“Until recently applicants for approval hearings did not ask for 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. I am informed by counsel, in this and in other cases, and by other Queen’s Bench judges, that applications for anonymity are now made in most approval hearings, if the order has not already been made by the Master .
[Counsel for the Claimant] submits that the reason for the increasing frequency of applications for anonymity orders is the availability of the internet. Information which was once ephemeral has now become recorded in permanent form, available to be found into the indefinite future with the use of a simple search engine” 
However, Tugendhat J was not persuaded by the assertion that the Claimant and her family would be vulnerable to exploitation if her name was disclosed. He could not 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” .
But there is a strong argument that this approach is flawed and that Tugendhat J did not give proper weight to the Article 8 rights of the Claimant and her family. He did not engage in a balancing of the various rights involved, in particular under Articles 6, 8 and 10 of the Convention. As the Supreme Court said in AP v Secretary of State (N0.2) ( 1 WLR 1652) the Court must ask itself:
“whether there is sufficient general, public interest in publishing a report of the proceedings which identifies [the claimant] to justify any resulting curtailment of his right and his family’s right to respect for their private and family life” .
The absence of specific evidence of “vulnerability” is not the end of the inquiry. It is plain that publication of information about a child’s medical condition and finances is an interference with his or her private life under Article 8. As the judge appeared to accept, the impact of the internet means that this interference is likely to be very long lasting. There will be a serious interference with Article 8 rights.
The question is, therefore, is there sufficient general public interest in publishing a report including the claimant’s name to justify that interference. Although the courts have emphasised the importance of attaching a name to a story, the most important “public interest” aspect of this kind of case surely lies in reporting the underlying facts about the alleged clinical negligence, the injuries suffered and the admissions made. As Tugendhat J accepted, if the claimant is not mentioned by name then more detail can be given about this background.
As Emilie Haine argued in a post about this case on the Michelmore’s blog
“If the public interest lies in knowing the extent of the suffering caused by a hospital’s mistake, the admission of liability and the compensation sum awarded, this does not mean that the identity of the claimant must also be made known. As the solicitor for the claimant in JXMX argued, disclosure of the name ‘adds nothing to the story’; we must wait to see if the Court of Appeal agrees. The fear, unfortunately, is that the public interest in reporting settlements of this kind will trump the right to remain anonymous. Whatever the outcome, we hope to see certainty in this controversial area”.
It will be interesting to see the approach taken by Sir James Munby P and the other Court of Appeal judges to the sensitive balancing exercise required in this case.