Straining the Alphabet Soup: Part 2, Drafting anonymity orders – Angus McCullough QC

8 05 2019

In Part 1 we looked at the circumstances in which a court may be prepared to grant anonymity in personal injury proceedings, and the applicable principles. In Part 2 I consider practical issues in the drafting of these orders, and problems encountered in this.

In particular, I will suggest that the standard Court Form PF10, that is now frequently being adopted, is generally inappropriate for anonymity orders in personal injury proceedings.

First, a quick review of the rules and guidance, noting that in April 2019 relevant provisions of the CPR were amended, and the Master of the Rolls issued relevant guidance.

Legislation and Practice Directions

The main principles engaged emanate from the common law and the ECHR, and were referred to in Part 1 of this post.  The legislative provisions and recent guidance to bear in mind are the following:

CPR Rules 5.4C and 5.4D

These rules concern the right of a non-party to obtain access to court records, and the procedure for doing this.

  • The general position is that after a defendant has acknowledged service a non-party may obtain a copy of a statement of case (but not documents filed with, or attached to, it) and any judgment or order given in public.
  • Subject to the court giving permission a non-party may obtain a copy of any other document filed by a party, or any communication between a party and the court.
  • Under rule 5.4C(4) the court may on the application of a party “or of any person identified in a statement of case” prevent or restrict access to a statement of case.
  • There is a fee payable by a non-party wishing to obtain a copy of a document under r.5.4C, and if the court’s permission is required an application may be necessary.
  • A request or application to inspect court documents may be made after the case has concluded.
  • It has been held that the “default position”, based on principles of open justice, is that access should be granted to non-parties seeking access to material that has been relied upon by a court in making its decision, particularly for proper journalistic purposes.

CPR Rule 39.2

This rule has recently been amended, with effect from 6 April 2019, to give greater effect to principles of open justice.  Rule 39.2(1) sets out the general rule that hearings are to be in public, with a hearing to be held in private requiring to be strictly justified by reference to matters set out at r.39.2(3).  Rule 39.2(4) now provides:

(4)  The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.

Any order made for the non-disclosure of the identity of a party or witness is now to be published on the website of the Judiciary of England and Wales.  (At the time of writing this post, I could not in fact find the published orders on the website, or any section where these should be placed …)

Children and Young Persons Act 1933, s.39

This provides a statutory basis for prohibiting publication of the name, address, or school of a child or young person (that is, someone under the age of 18) “concerned in” proceedings. As such, it cannot apply to adult protected parties, and the prohibition lapses when the individual reaches the age of 18. There is a criminal sanction for breach of an order made under this power.

The exercise of the power is not restricted to the identity of parties to the proceedings. In JXMX, the Court of Appeal suggested that this provision was unlikely to provide adequate protection, even where it could be exercised, as it was restricted to publication. Nonetheless, the provision may be worth considering in cases in which the vulnerable person is a child that is not a party to the proceedings — such as in ‘wrongful birth’ cases, as discussed in Part 1 of this post.

Contempt of Court Act 1981, s.11

This provision merely makes explicit the power of a court to make such directions as are necessary for the purpose of prohibiting disclosure of a name in court proceedings.  It does not of itself create the power to prevent such disclosure.

Practice Guidance of 16 April 2019

On 17 April 2019 the Master of the Rolls issued guidance in relation to the publication of privacy and anonymity orders.  Any party seeking anonymity is required to ensure that the draft order does not contain any information that would undermine the purpose of the order.  This is because copies of such orders are now generally required to be published pursuant to CPR r.39.2(5).

Form PF10 The standard court form for an ‘Anonymity and prohibition of publication order’ can be found here. It is not specific to personal injury claims, and may be very useful in other contexts. But some features of this order make it unnecessarily burdensome, and costly, for routine use in personal injury claims.

In particular this form includes the following:

2. That the Claimant [and the litigation friend] be described in all statements of case and other documents to be filed or served in the proceedings and in any judgment or order in the proceedings and in any report of the proceedings by the press or otherwise as “ABC” [and “XYZ”] (or in other anonymised form as ordered).

3. That the address of the Claimant [and of the litigation friend] be stated in all statements of case and other documents to be filed or served in the proceedings as the address of the Claimant’s solicitors.

4. That in so far as necessary, any statement of case or other document disclosing the Claimant’s name or address [or the name or address of the litigation friend] already filed in the proceedings be replaced by a document describing such name or address in anonymised form as above.

5. That the original of any such document disclosing the name or address of the Claimant [or of the litigation friend] is to be placed on the Court file in a sealed envelope marked “not to be opened without the permission of a Judge, Master or District Judge of the Queen’s Bench Division”.

The practical difficulty with these provisions stems from the time and cost of the work that will be required by the parties to ensure compliance with the order in this form.

By way of example, the trial bundles would appear to be “other documents to be filed or served” within the scope of paragraphs 2-5.  On that basis, the full medical records (as well as every other document) included in the trial bundle would have to be reviewed, redacted in accordance with paragraphs 2 and 3, and the originals sealed in accordance with paragraph 5.  In a clinical negligence claim the medical records alone may run to several files of the trial bundle. The time and cost associated with that exercise would be significant.

The extent of this work is not obviously necessary, given the protections provided by paragraphs 1 (non-disclosure of identity), 6 (requirement for permission for a non-party to inspect the court file), and 7 (reporting restriction).  If that is right, and the full extent of the restrictions is not necessary for the protection of any vulnerable person (under the common law and Article 8), then the current order may be an unjustifiable intrusion on principles of open justice.

It could be argued that some of these consequences may be escaped by reliance on the opening words of paragraph 4 (“in so far as necessary”) – that it is not necessary to anonymise some or all of the documents “already filed”. But this would not seem to apply to documents yet to be filed (which may include the trial bundle). Furthermore, it would seem to raise questions as to what the purpose of the ordered steps may be; what meaning should be given to paragraph 4; and how ‘necessity’ should be judged. Court orders must surely attain greater clarity than this, which places the parties in an uncomfortably uncertain position as to whether compliance with the order has been achieved.

I would therefore suggest that it is not apparent that proper protection of the interests of a vulnerable party require these provisions in the majority of personal injury and clinical negligence cases. If that is so, then adoption of an order in the form of PF10 in these circumstances may be:

  1. Wider than is necessary and so unnecessarily impinge on principles of open justice; and,
  2. More burdensome and costly than is necessary and proportionate.

I would suggest that in most cases, an order in the form which appears below — adapted as necessary — is likely to be more appropriate. This form is less restrictive in terms of obligations imposed in relation to all documents filed or served.  But it retains the essential protections of (i) prohibition of publication of the identity of the vulnerable person (and consequentially, identities of family members and other details that would be liable to reveal his or her identity); and (ii) the requirement for any non-party to seek permission on notice to the claimant’s representatives before being able to access the court file, which enables focused consideration to be given to any such application and the terms on which it may be granted.

Incidentally, the dispensation in paragraph 8 of PF10 (which permits non-anonymised communications and records involving the Courts Funds Office) would not be necessary, as communications in relation to court funds would not constitute ‘publication’ and so would not be otherwise prohibited.

The following draft order may be adapted for use in the general run of personal injury cases in which anonymity of a vulnerable party is required.

This post originally appeared on the UK Human Rights Blog and is reproduced with permission and thanks

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