Are anonymity orders involving protected parties in peril?

The very detailed judgment citing the extensive caselaw in this area in the case of PMC (a child by his mother and litigation friend FLR) v A Local Health Board on 22nd November 2024 [2024] EWHC 2969 (KB) could have very important implications for what solicitors should do when issuing proceedings and particularly those proceedings involving protected parties.

It may well be that most people are aware that with UK Dockets on Westlaw, people can create daily alerts on new cases, specific courts or parties, and other events, track individual cases and be alerted to any changes, access every step of the case journey from a claim being filed to judgment and through to the appeals process.

The availability of this information occurs as a direct result of the publication of this information on the Court’s electronic filing system (CE-File) and the availability of relevant documents from the records of the Court, under CPR 5.4C(1), following the filing of the Acknowledgement of Service.

However, in PMC Nicklin J. deals in detail with the implications of this for those seeking anonymity orders after the Claim Form and Particulars of Claim are filed. He points out that because these details have been published in this way that if the anonymity order is not sought at the outset of proceedings this could make it very difficult for those seeking anonymity orders after this stage to establish that there is a need for such an order.

All practitioners acting on behalf of protected parties are aware of the model PF 10 Order and of the guidance given by the Court of Appeal in the case of JX MX v Dartford & Gravesham NHS Trust [2015] 1 WLR 3647 [34] regarding dealing with approval hearings which means that (i) the hearing should be listed in public unless by the time of the hearing an anonymity order has been made (ii) Because the hearing will be held in open court the press and public will have a right to be present (iii) The press will be free to report the proceedings – subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend, and restricting access by non-parties to documents in the court record other than those which have been anonymised. (iv) Whether the claimant has formally applied for an anonymity order or not, the judge should invite submissions from the parties and the press as to whether such an order should be made. (v) Unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order B for the protection of the claimant and his or her family. (vi) If the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion. (vii) The judge should normally give a brief judgment on the approval application (taking into account any anonymity order).

What practitioners may not be aware of is that there is a view, as now clearly expressed by Nicklin J. in the PMC case, that by failing to seek an anonymity order (involving the withholding of the details of name address etc and corresponding prohibition of publication) it could well be too late to do so once his name has become “embedded in the public domain”:

“55… If a party to litigation has not taken steps to seek a withholding order and corresponding reporting restrictions at the outset of the proceedings, s/he is highly likely to find that – whether for want of jurisdiction to make the order or on the basis that the Court refuses to make an order – it is simply too late to do so once his/her name has become embedded in the public domain as a result of the natural (and entirely predictable) incidence of reporting of court proceedings.”

I consider that if a protected party fails to apply to withhold name, address and other details at the commencement of the proceedings, it is an unduly rigid interpretation of the Court’s powers under section 11 of the Contempt of Court Act 1981 if s/he were to be deprived of an Order which enables him to withhold their details and to prohibit publication of those details simply because the party’s details are “embedded in the public domain.” This would mean that in the hundreds of claims involving protected parties – where the Claim Form has been issued and served, Defences served, Orders of the Court made, some of which will be orders approving interim payments and there has not been an application made to withhold the names and addresses of the protected party – that these applications are likely to fail. This is not only an unduly restrictive interpretation of the Court’s power but it is likely to frustrate or render impracticable the administration of justice or would damage the interests of protected parties whose interests the Human Rights Act provides the power to the court to protect.

Nicklin J. considers in this detailed judgment where the wording of PF10 is wrong and needs improvement; whether a statutory power exists to grant orders in the suggested format and what that statutory power is; whether the court should be granting orders with retrospective effect and whether the Court of Appeal in the JX MX case failed to consider s.11 of the Contempt of Court Act 1981 and other relevant appellate authorities. We have been granted permission to appeal because (a) this is an area of significant wider importance and (b) that the Court of Appeal decision in JX MX conflicts with several other appellate level authorities.

This article was written by 7BR’s Leslie Keegan.

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