In November 2024, Mr Justice Nicklin handed down Judgment in PMC v A Local Health Board [2024] EWHC 2969 (KB), refusing to grant an anonymity order (or more precisely, a reporting restriction order) to the Claimant, PMC, a severely injured child acting through his litigation friend mother.

In doing so, he cast doubt on the application of what had hitherto been among the leading authorities on the making of anonymity orders, particularly as regards children,  JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96 (‘JM MX’) and on the suitability of the model form of such orders, PF10.  Thus, although the underlying action was in clinical negligence, the issues raised were, as both the first instance Judge, and later the Court of Appeal, noted, of wider importance to all cases where a claimant seeks an anonymity order.  Indeed, so important were the issues that, when the hearing of PMC’s appeal was adjourned in February 2025, the Court of Appeal acceded to a request by Counsel to provide interim guidance for practitioners, stating that ‘it is advisable to use PF10 in the interregnum that arises until judgment is given in this appeal’ and that ‘first instance judges remain bound by the decision in JX MX, until that decision is either departed from by the Court of Appeal or overruled by the UKSC’ (see: PMC v A Local Health Board [2025] EWCA Civ 176).  The appeal was heard on 22 and 23 July 2025, and the Court of Appeal handed down its Judgment on 28 August 2025 (PMC v A Local Health Board [2025] EWCA Civ 1126), overturning the High Court’s decision and providing the now-leading case on the Court’s jurisdiction to make reporting restriction orders.

The facts

The Claimant was born in 2012.  It is said that he tragically suffered an intraventricular haemorrhage as a result of asphyxia during labour, leading to him developing cerebral palsy.  A Letter of Claim was sent to the Defendant as long ago as October 2013.  In 2016, the Defendant admitted liability for negligence in the care of the Claimant and his mother, leading to the intraventricular haemorrhage, and began making substantial interim damages payments.  A Claim Form was issued in March 2023, and Particulars of Claim were filed and served in July 2023.  An Acknowledgment of Service was filed on 4 August 2023.  Judgment on liability was entered by consent on 8 November 2023, and on 20 November 2023, the Court approved the interim payments that had been made and a further sum to be paid within 28 days.  In January 2024, the Court ordered the claim to be transferred to a District Registry, and gave directions for a quantum-only trial, to take place in December 2025.  Up to that point, no application for anonymity had been made on behalf of the Claimant.  There had been no hearings in the case at all (all the orders essentially having been made by consent).

The application and decision at first instance

On 1 November 2024, the Claimant’s solicitors issued an application seeking to anonymise the name of the Claimant, reporting restrictions, and a prohibition on access to the Court file, relying, in particular, on JM MX.  The application enclosed a draft order essentially as per form PF10, and which can be found at Annex 1 of Nicklin J’s first instance judgment.

The application explained that on 31 October 2024, the Claimant’s solicitors had been contacted by a journalist who had accessed a copy of the Particulars of Claim and, intending to publish a news article about the case, was seeking the participation of the Claimant’s family.  Although, as the application disclosed, the Claimant’s mother had previously engaged with the media to a limited degree regarding the Claimant’s injuries and health, there had been no reporting on the litigation, and, in particular, the potential value of the claim.  The Claimant’s mother was concerned that the Claimant was vulnerable to exploitation.  Unsurprisingly, the Defendant health board was neutral on the application.

The application was referred to Nicklin J who immediately directed that it be served upon the media organisation in question, and that the Claimant file further evidence dealing, in more detail, with the past media coverage and the history of the proceedings, and any response to the application by the media.  The application was listed for hearing on 6 November 2024.  The Judge refused to grant an interim anonymity order pending the hearing, on the basis that the media had not previously been notified of the application, and he did not consider that there was any compelling reason not to do so.

Following the filing of the further evidence on behalf of the Claimant, the Judge noted that there had been several media publications, and that wider concerns about the standards of maternity care at the Defendant’s hospitals had meant that the Claimant’s story had remained of interest to the media, notwithstanding the passage of time.  As a result of this, the Judge found that the Claimant was likely to be readily identifiable, particularly in his local area, as a very high-profile victim of medical negligence.

The Judge noted that, in addition to the pleadings being publicly accessible upon request, pursuant to CPR 5.4C(1) (as a result of the Acknowledgment of Service), basic details of the case, including the Claimant’s surname, his mother’s full name, and the dates of orders, were also publicly available, including to subscribers of the Westlaw database.

The Court ultimately received written submissions from two media organisations.  Neither sought to oppose an order protecting the identity of the Claimant and his family, but both suggested that any order should not prevent the reporting of the name of the hospital or the ultimate outcome of the litigation, which they considered to be of public interest.

The Judge recorded that the general legal position was as follows:

  • The starting point is open justice, which includes the right to publish reports of proceedings. It follows, that the general rule is that the names of parties to proceedings will be made public and there is no general exception for cases where private matters are in issue.  Any derogation from this is an interference with the Article 10 ECHR [freedom of expression] rights of the public at large.  Restriction from open justice is exceptional and must be based on necessity.  These principles apply across all Courts and Tribunals, including in cases where Article 8 is engaged.
  • When deciding whether an applicant has satisfied the burden of demonstrating the necessity of derogation from open justice, the Court must carefully scrutinise the evidence and ascertain the facts. There are two principal grounds on which derogations can be justified: (i) maintenance of the administration of justice, and (ii) harm to other legitimate interests.  The first category includes cases, such as breach of confidence cases, where, unless some derogation is made, the Court would, by its process, destroy that which the claimant is seeking to protect.  In such cases, the Court may need to anonymise the parties or simply withhold protected information.  The second category concerns cases where the Court’s process will represent an interference with a Convention right which cannot be justified as necessary.  Whilst, in a very broad sense, the Court is then carrying out a balancing act, the scales do not start evenly balanced: the starting position is of substantial weight to open justice.  Names are an inherently important dimension of open justice.  Thus, it is not for the media or the public to justify why a name should be freely available, but for those seeking a derogation to justify why it should be withheld.
  • So-called anonymity orders have two distinct parts: (i) an order that withholds the name of a relevant party (or witness etc.) and directs that it be replaced with a cipher (a ‘withholding order’), and (ii) an order that prohibits the publication of the withheld information or any other information that would be likely to identify the person concerned (a ‘reporting restriction order’).
  • The nature of a withholding order (and the fact that it is not, itself, a reporting restriction order) was explained by Tugendhat J in CVB v MGN Ltd [2012] EWHC 1148 (QB). They are a part of the Court’s general powers to regulate its proceedings.  Since they do not prevent the relevant person being publicly identified, if the Court wishes to prohibit publication, then – providing it has jurisdiction – it must also impose a reporting restriction order.
  • There is no inherent common law power to make a reporting restrictions order; any jurisdiction to impose them must come from statute, per Lord Sumption in Khuja v Times Newspapers [2017] UKSC 49) (‘Khuja’):

‘The inherent power of the court at common law to sit in private or anonymise material deployed in open court has never extended to imposing reporting restrictions on what happens in open court. Any power to do that must be found in legislation: Independent Publishing Co Ltd v Attorney General of Trinidad & Tobago [2004] UKPCC 26’ (‘Independent Publishing’)

Therefore, before granting any form of reporting restrictions order, the Court must identity the statutory basis upon which it can be made.  In holding this, the Judge acknowledged that in Wolverhampton City Council v London Gypsies and Travellers [2023] UKSC 47 (‘Wolverhampton’), the Supreme Court had suggested that reporting restrictions could be made under common law powers, but noted that this conflicting decision did not directly concern the issue and did not refer to Khuja.   

  • Even if a statutory basis can be found, applications may nevertheless be refused where proceedings had previously been conducted in open court, without restriction or because of other material lawfully available in the public domain (where it is simply ‘too late’): it ‘is Canute-lite to suggest that the Court can, or should, attempt – by belated imposition of reporting restrictions – to erase the name of a claimant from the public domain in circumstances such as these. In many cases, it would be an affront to open justice even to try… A reporting restriction order is supposed to be prospective, not retrospective’.  Even if the Court were to take care that an order did not have retrospective effect, pre-existing publicity might make the future publication of anonymised reports very difficult, due to potential jigsaw identification.

Significantly for the Claimant’s application, the Judge then held that:

(1) CPR 39.2(4) – which provides that the Court must order that the identity of any person 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 person – was a general rule reflecting underlying principles of law, which did not expressly convey any power, which would have to be read into the rule by implication.  To do so would render all other relevant statutory powers, including section 11 of the Contempt of Court Act 1981 and section 39 of the Children and Young Person Act 1933, otiose insofar as civil proceedings are concerned.

(2) Section 6 of the HRA imposed an important duty on the Court, but not a power. To the extent that the Court felt compelled by section 6 not to act incompatibly with convention rights, but found itself without a statutory power, its remedy was to grant an injunction pursuant to section 37 of the Senior Courts Act 1981 (but this does not mean that it should be thought that section 37 represents a readily available means for the High Court to fashion reporting restrictions by injunction; such orders are exceptional).

  • The Court of Appeal in JM MX did not directly address and resolve – because it was not an issue on the appeal – the issue of the jurisdiction to make the order sought, and in particular the jurisdiction to make any reporting restriction order. The Court of Appeal did not, therefore, consider Independent Publishing, and, of course, the decision pre-dated the later Supreme Court decision in Khuja.  Whilst the Court in JM MX held that an order under section 39 of the Children & Young Person Act 1933 would be insufficient, it did not go on to identify the alternative jurisdiction under which a reporting restriction order could be made.  Whilst it might be considered that CPR 39.2(4) was the basis of the jurisdiction, the point was not addressed.  The later decision in Khuja is unambiguous authority that a statutory basis is required.  There were several wider issues with JM MX; it did not include analysis of the circumstances in which the Court can make a reporting restriction order under section 11 of the Contempt of Court Act 1981, and it appeared to conflict with the clearly established principles of open justice, effectively reversing the burden, and giving a presumptive priority to anonymity.  Nor did it deal with the issue of pre-existing publication.  Thus, the Judge held that JM MX was not authority for the proposition that reporting restrictions can be granted under CPR 39.2(4).
  • There was nevertheless a statutory power available to the Claimant under section 39 of the Children & Young Person Act 1933. Whilst the Claimant’s failure to make the application at the start of the proceedings did not extinguish that jurisdiction, the Court nevertheless had to consider the issues of necessity and proportionality.  The factors that favoured granting anonymity were that the Claimant was a child and that the remaining phases of the litigation would involve intensely private and medical information.  The Claimant’s alleged vulnerability to exploitation was not substantiated; whilst the Judge accepted that he was vulnerable owing to his age and disabilities, he was not persuaded of any real risk of exploitation.  His damages payments were managed by a professional property and affairs deputy appointed by the Court of Protection and the risk of someone exploiting him financially must be somewhere between remote and non-existent. The suggestion was mere assertion.  Militating against the grant of anonymity were the weight to be attached to open justice, along with the pre-existing media coverage, and the delay in the application being made, which now provided practical difficulties.   The fact that the two media organisations did not oppose the grant was a neutral factor; the Judge feared that they had failed to appreciate the full implications of the order sought by the Claimant.
  • Ultimately, the Judge found that any effort to anonymise the Claimant at this stage was both unjustifiable and futile. It was simply too late for anonymity in the Claimant’s case.
  • Although, in view of his decision, no issue arose as to the form of order, the Judge nevertheless took the opportunity to identify some problems that he considered would have arisen, had he reached that stage. By way of general observation, he opined that withholding and reporting restrictions orders do not easily lend themselves to standard form orders, still less by deployment on a mechanistic basis; there would be few cases, if any, where the Court could simply be asked to make an order in the terms of PF10.  He then went on to identify specific issues, including (i) that the standard form of recital (‘It appearing that non-disclosure of the identity of the Claimant is necessary… and that there is no sufficient countervailing public interest in disclosure’) appeared to reverse the burden against open justice, and (ii) that the reference to the jurisdiction of section 6 of the HRA and CPR 39.2(4) was erroneous (for the reasons he had explained previously).

The Court of Appeal decision

It should be noted that before the Court of Appeal, the Claimant sought two alternative orders, the first being in the same, ‘standard’ form as sought at first instance, and the second, no doubt recognising the force in Nicklin J’s comments as to practical difficulties, qualifying the order with the addition of the words ‘from the date of this order’, in order to make clear that the order sought was prospective rather than retrospective, i.e. that the media would not be required to remove historic articles from the World Wide Web.

As noted at the outset, the Court of Appeal overturned the High Court’s decision, on the following basis:

Jurisdiction

The common law is capable of development and the application of the principle of open justice can change in response to changes in society and in the administration of justice (per Lord Reed in A v British Broadcasting Corporation [2014] UKSC 25 (‘A v BBC’). Nicklin J was wrong to conclude that he should follow Lord Sumption’s dictum in Khuja that the Court’s inherent power at common law did not extend to imposing reporting restrictions.

Firstly, the Claimant’s case was not analogous with Khuja.

Secondly there was a line of authority, including A v BBC, Wolverhampton, and – since the first instance decision – Abbasi v Newcastle upon Tyne Hospitals NHS Foundation Trust [2025] UKSC 15 from which it was clear that there is an inherent power derived from the common law to derogate from the principle of open justice in civil or family proceedings by making both a withholding order and a reporting restrictions order where such an order is strictly necessary in the interests of justice.

Thirdly, there were clear indications in the authorities that the common law power to derogate from the open justice principle can be deployed to protect the interests of vulnerable people.  In particular, see Lord Reed at [41] of A v BBC: ‘…it would be in the interests of justice to protect a party to proceedings from the painful and humiliating disclosure of personal information about her where there was no public interest in it being publicised…’.  CPR 39.2(4) reflects that power.

JM MX

JM MX (or Dartford, as the Court of Appeal referred to it in short-hand), in large part remains good law and binding, but it must be noted that it is essentially concerned with the nature of approval hearings under CPR 21.10, which are not to be treated as identical to anonymity applications more generally. Moore-Bick LJ had not been introducing an inappropriate presumptive priority for anonymity over open justice, but rather seeking to introduce a simple and effective way of resolving the many applications for anonymity that are made in the context of CPR 21.10, i.e. to streamline the process where it was likely that the Court would consider such a derogation strictly necessary.

Children and protected party claimants are generally vulnerable and are persons whom the Court should look to protect.

The fact of previous publicity is not an automatic bar to the making of a withholding order or a reporting restriction order in cases concerning children and protected parties. It is an important factor for the Court to take into account, but it is impossible and undesirable to lay down a general rule.  In a very different context,  Lord Mance had explained in PJS v News Group Newspapers Ltd [2016] UKSC 26 (‘PJS’), that injunctions restraining publicity could be made, even in the face of significant existing press and social media attention.

Application of the principles to the Claimant’s case

The Court of Appeal determined that an anonymity order, drafted in prospective terms, was strictly necessary in the Claimant’s case having regard to (i) the extreme vulnerability of the Claimant, and (ii) the serious infringement upon the Claimant’s private and family life in relation to medical details, family circumstances and financial matters that the litigation will involve.

The order will not prevent the media from reporting on the matters of public interest in the litigation, such as the events that led to the injuries and the conduct of the hospital. Nor will the order prevent reporting of the amount of any damages awarded.

The order, being prospective, will not entirely prevent the possibility of jigsaw identification but, as in cases like PJS, that is not a reason to refuse the Claimant a modicum of protection.

PF10

The Court of Appeal did not hear detailed argument on the form of PF10, but noted that there are elements of the form that seem inappropriate in light of the Judgment and invited the Civil Procedure Rule Committee to consider how it might be revised.

This post originally appeared on the Brett Wilson Media Law and Communications Law Blog and is reproduced with permission and thanks