Whilst not quite the definitive answer that had been so eagerly awaited following Nicklin J’s recent Judgment in PMC, the Court of Appeal has issued some practical interim guidance regarding anonymity orders in an effort to assist practitioners in the short-term, pending the appeal in PMC being finally determined.
On the 25th of February 2025, PMC v A Local Health Board [2024] EWHC 2969 (KB) reached the Court of Appeal. The appeal was listed to be heard by Sir Geoffrey Vos, Lady Justice Nicola Davies and Lord Justice Warby. Upon sitting to hear the appeal however, it was the submission of Nicola Greaney KC – acting as an advocate to the Court as appointed by the Attorney General – that the Court may wish to await the Supreme Court’s decision in Abbasi v. Newcastle Upon Tyne NHS Trust & Others [2023] EWCA Civ 331 before it proceeded to hand down judgment.
Abbasi concerned two applications to vary or discharge reporting restriction orders granted following the death of two seriously ill children in hospital, in order for the children’s parents to speak publicly about their children’s care. The treating NHS Trusts opposed the applications out of concern for the safety of the staff and the professional reputation of the Trusts. The appeals were allowed, and the reporting restriction orders were discharged, with the Court finding that upon an analysis of the competing article 8 and article 10 rights, the parents’ right to free speech decisively prevailed. However, the order was stayed pending any application for permission to appeal, and subsequently such permission was granted.
Ms Greaney submitted that the Supreme Court’s decision in Abbasi may assist this Court’s decision, including with the nature of the evidence that must be adduced regarding potential future risks if an anonymity order is not granted, and whether the Court of Appeal in JX MX v. Dartford and Gravesham NHS Trust [2015] 1 WLR 3647 was correct that evidence as to specific risks was not required. Further, it was considered how, if the Court proceeded without the Abbasi decision, it may need to reconvene to consider the decision in any event. Conversely, Mr Weir KC acting for PMC, submitted that the Court should not adjourn as Abbasi was concerned with a different jurisdiction of the court – that being the parens patriae jurisdiction -, and given that there was now an uncertainty created by Nicklin J’s Judgment, which included a lack of clarity as to whether the JX MX decision was to be followed. In the end, the Court felt that it was more satisfactory to await the Abbasi decision and decided to adjourn for a two-day hearing (the Court indicating that one day would not be sufficient) as soon as possible in the summer term.
As requested by Mr Weir KC in the event of an adjournment, the Court provided guidance as to the position to be adopted regarding anonymity orders moving forward, pending any further decision being made. The continued use of the PF10 form was endorsed and it was confirmed that first instance Judges remain bound by the decision in JX MX until such time as that decision is either departed from by the Court of Appeal or overruled by the Supreme Court.
For now, practitioners can therefore continue to rely on JX MX in the pursuit of anonymity orders, with the prevailing authority being that, unless the Court is satisfied that it is not necessary to do so, an anonymity order should be made.
