This appeal raises important issues as to the jurisdictional foundation for the principle of open justice and derogations from that principle. The context is the grant of anonymisation orders and reporting restriction orders in clinical negligence cases brought by children and protected parties and in proceedings brought to seek the court’s approval of settlements in such cases. [1]
An order sought within court proceedings to withhold or anonymise the names of a party or a witness, including withholding information that would identify that person, will be referred to as a withholding order (WO). An order sought within court proceedings which has the effect of restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of court documents will be referred to as a reporting restrictions order (RRO). An order made within court proceedings which has the effect of both withholding or anonymising the names of a party or a witness and restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of documents will be referred to as an anonymity order (AO). [2]
Mr Justice Nicklin (the judge) refused the AO sought by the claimant on the basis that there was no statutory foundation for making an RRO in the absence of a WO (see section 11 of the Contempt of Court Act 1981 (section 11)), and that the evidence did not support a WO being made in this case, because material concerning the claimant and his claim was already in the public domain. Derogation from the principle of open justice was not, according to the judge, necessary in this case. [3]
an application for an AO in a personal injury claim by a child or protected party is made under the inherent common law jurisdiction of the court to protect the integrity of its proceedings in the interests of justice…. [103]
in this type of case, anonymising the name of a claimant and restricting publication of their name and identifying material is generally likely to be a more desirable derogation from the open justice principle than holding the proceedings in private. Again, though, it is undesirable to generalise too much. All these cases and any strictly necessary derogation from the open justice principle that may be appropriate in them will be entirely dependent on their particular facts. It is worth mentioning, however, that those making applications for an AO would be well advised to do so as early as reasonably practicable in the litigation process. [105]
an AO drafted in prospective terms … is strictly necessary in this case in the interests of justice. The prospective AO will not prevent the media reporting on the matters of public interest arising in the litigation, such as the events that led to the claimant’s injuries and the conduct of the hospital in dealing with them. Nor will the order prevent reporting of the amount of any damages agreed or awarded. Instead, it will prevent the claimant and his family from being further identified in the media as the claimant in the case. [109]
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