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Anonymity in Clinical Negligence Cases

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    When should the court grant anonymity to children or protected parties in clinical negligence cases? A blog considering the clarity provided by recent case law.

    By Ali Cloak

The Court of Appeal recently confirmed that children and protected parties should not be named in personal injury and clinical negligence cases unless anonymity is unnecessary or inappropriate. The ruling is very much welcomed for clarifying an important issue where there had previously been much confusion and uncertainty.

Background

Where a clinical negligence or personal injury claim is brought by a child or a protected party (an adult who lacks mental capacity to conduct their own case and therefore requires a Litigation Friend) then the settlement of the claim requires approval from the Court. Unless there are provisions to the contrary, the court order is a public document and so the names of the Claimant and Defendant and the Court documents including details of the case are therefore in the public domain.

There are often concerns about such publicity, particularly where the settlement is large, as it can highlight that a child or protected party has received a significant sum of money, as well as their personal and medical history. These Claimants are often seriously disabled and vulnerable to exploitation.

Historically, claimants had to apply formally for an anonymity order and provide the Press Association news agency with a copy of any submissions. Judges would require the claimant to provide good reasons as to why they should not be named before approving the request and this was sometimes refused.

JX MX v. Dartford & Gravesham NHS Trust

In the case of JX MX v Dartford & Gravesham NHS Trust the Claimant sought an anonymity order to keep her identity private and so that the documents used in the proceedings could not be made available to any party privy to the proceedings. The Claimant was 6 years old and had suffered severe injuries, which would mean that she would not have capacity to manage her own affairs even upon reaching adulthood.

When the application for anonymity was initially heard, the judge, Tughendhat J, felt there was insufficient evidence that anonymity was necessary and proportionate. He said that the case put forward was formulaic and expressed only generic concerns, which he did not consider well-founded. The Judge ordered that her address should not be disclosed but did not order anonymity. He felt there was confusion as to when an order for anonymity should be granted and gave permission for the case to be head by the Court of Appeal.

In the appeal hearing in February 2015, the Court of Appeal stated that anonymity orders should be made in such cases unless it is satisfied that is unnecessary and inappropriate to do so. Vitally, this ruling shifts the presumption in favour of anonymity being granted to children and protected parties in such cases as this.

Whilst it was acknowledged that there can be a tension between the principles of open justice and achieving justice in any specific case, the nature of this specific function means that the public interest in seeing justice done can still be achieved without disclosing the Claimant’s identity. Further, it creates an unusual situation where vulnerable claimants lost the right to conduct litigation privately.

Guidance for the future

The Judgment helpfully set out future practice:

• the hearing should be listed for hearing in public under the full name of the party, unless an anonymity order had already been made;
• the Press and members of the public will have a right to be present and to observe the proceedings;
• the Press will be free to report the proceedings, subject only to the anonymity provisions;
• the judge should invite submissions from the parties and the Press before making an anonymity order;
• 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 – this will include prohibiting the publication of the name and address of the Claimant, his or her immediate family and litigation friend or any details leading to their identification;
• If it is considered unnecessary/inappropriate then there should be a short judgment setting out his reasons for coming to that conclusion;

It is anticipated that the exceptions will be few and far between and the burden is now placed on the press to provide reasons why anonymity should not be granted.

This is a very welcome decision and provides much needed clarity.  It creates an assumption in favour of privacy for vulnerable parties in cases which are inherently of a very personal nature and in which the settlements can be large.

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