Whilst anonymity orders have long been considered to be something of a routine and default order in personal injury and clinical negligence claims brought by children and adults lacking mental capacity, the recent case of PMC has cast doubt over the power to grant them.
In PMC -v- A Local Health Board [2024] EWHC 2969 (KB), Mr Justice Nicklin conducted a thorough review of the law surrounding anonymity orders and, in particular, the jurisdictional basis that allows the Court to grant such an order.
In Nicklin J’s view, this jurisdiction originates from either section 39 of the Children and Young Persons Act 1933 or section 11 of the Contempt of Court Act 1981. Nicklin J was of the opinion that neither CPR 39.2(4) nor section 6 of the Human Rights Act 1998 conferred any statutory power to grant anonymity orders, but rather they proceed on the basis that the power is to be found elsewhere. With regard to section 11 of the Contempt of Court Act 1981, Nicklin J discussed the essential pre-condition to the making of a reporting restriction, in which the Claimant’s name (or information) must have been withheld throughout the proceedings. The implication of this surrounds the potential difficulty where anonymity orders are not sought from the outset of proceedings and where there has already been publication or previous reporting of the case. In those circumstances the need for such an order is negated by the fact that the Claimant can be identified from the information already in the public domain (such as in court lists or online dockets). The effect therefore is that where s39 of the Children and Young Persons Act 1933 does not bite, and where the application is made too late, the Court may find itself without any jurisdiction to grant an anonymity order.
However, Nicklin J did not leave the Court without any recourse at all. In fact, he left the door open for granting anonymity orders through a fall-back route provided under section 37 of the Senior Courts Act 1981. Through this section, the High Court is given a wide power to grant injunctions. Nicklin J concluded that where the engaged convention rights compel the court to impose reporting restrictions, but there is no other power to do so, then section 37 can provide that power.
Under paragraph 92 of his Judgment, Nicklin J set out the criteria required under s.37, stating that an injunction should only be granted if the applicant satisfies the Court:
(a) that there is no other jurisdiction available under which the Court can grant the reporting restriction sought; and
(b) by clear and cogent evidence, that, without the order being made, the Court will be in breach of the duty not to act incompatibly with a Convention right under s.6 Human Rights Act 1998; and
(c) that the In re S parallel analysis leads to the conclusion that such an order should be granted.
(In Re S [2005] 1 AC 593, it was stated that the Court should focus on the comparative importance of the specific rights being claimed in the case, as well as the justifications for interfering with or restricting each right, and the proportionality of such).
Accordingly, where the analysis of the case facts and the engaged convention rights compels the Court to impose reporting restrictions, it seems that there lies the power under s.37 to make an order for anonymity.
Nevertheless, the full effect of PMC on anonymity orders is yet to be seen, given that the Court of Appeal authority of JX MX v Dartford & Gravesham NHS Trust [2015] 1 WLR 3647 remains binding. In that case, the Court of Appeal determined – in upholding an anonymity order due to the need to protect the identity of Claimant and their family from publication – that unless the Court is satisfied that it is not necessary to do so, an anonymity order should be made. This decision has formed the prevailing authority for almost ten years. However, in coming to its decision, the Court of Appeal did not expressly identify or address the jurisdiction which allowed it to grant a reporting restriction.
In a recent approval hearing involving No5 Chambers, Her Honour Judge Wall (sitting as a Deputy High Court Judge) granted an application for an anonymity order in a case involving an adult claimant who lacked capacity. In her reasoning she found herself bound by the decision in JX MX, but in any event she found that she could use s.37, as laid out in PMC, as her backstop for jurisdiction.
HHJ Wall considered the balancing of Article 8 rights against those arising under Article 10, recognising that the Claimant would have been free to settle the case with no publicity at all had they not been a protected party. HHJ Wall also noted the specific facts of the case at hand, including prior vulnerability and exploitation together with the absence of previous publication or reporting (unlike PMC), which led to her finding that the Claimant’s Article 8 rights necessitated an anonymity order being granted.
It seems therefore that until such time as JX MX is overturned, anonymity orders will continue on a path of little resistance at first instance, at least in the context of cases that are before the Court for the approval of damages, since this will almost inevitably give rise to the recognition of both Article 8 and Article 14 rights. Anecdotally, these orders are still routinely being made in courts across the jurisdiction.
However, with PMC in the process of appeal, higher court consideration regarding the jurisdiction for and appropriateness of granting of anonymity orders should be forthcoming.
