Identification and open justice

The essential issue in JXMX v Dartford & Gravesham NHS Trust was how courts should resolve the tension between a desire for anonymity in infant approval hearings and the principle of open justice.

Those practising in the field will know that there have been difficulties and an inconsistent approach at first instance when the point has been raised.

The Court of Appeal brought some much needed clarity to the issue in the judgment handed down on 17 February.

Desirable anonymity

It is worth starting by revisiting the reasons why anonymity orders in these cases can be thought necessary. The reasons are vividly illustrated when the settlement hearing involves, as it often does, highly private facts about medical treatment (including in cases where injuries were sustained at birth and medical treatment of the mother).

There are also circumstances where publicity is a concern for the child and family if it reveals difficult facts or circumstances which give rise to the claim. Local knowledge that a child has an entitlement to a substantial sum of money on reaching majority can bring with it other concerns, particularly where that child may be vulnerable either as a consequence of their injuries or otherwise.

Open justice

It is relevant to look a little closer at  the fundamental principle of open justice, a principle described as being of the utmost importance. The Supreme Court has over recent years had reason to restate the principle of open justice, most notably in A v BBC (Scotland) (tinyurl.com/ne3nn4s) and in Bank Mellat v HM Treasury (No 1) (tinyurl.com/ods6e4t).

The judgment in JXMX reminds us of the classic passage from Scott v Scott (tinyurl.com/pejcony): ‘The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured because it is felt that in public trial is to be found on the whole the best security for the pure, impartial, and efficient administration of justice, the best means of winning for it public confidence and respect.’

It has been accepted for just as long that there can be exceptions to the open justice principle, again in Scott: ‘While the broad principle is that the courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred.

‘But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of courts of justice must be to secure that justice is done… It may often be necessary, in order to attain its primary object, that the court should exclude the public.’

Human rights

The issue also brings into play an obvious tension between the article 10 rights (right to freedom of expression) of the press and public as against the article 8 rights (right to respect for private and family life) of the child and the family. Article 14 (prohibition of discrimination) is also relevant given that adult claimants are free to settle their claims anonymously and without recourse to the courts, whereas children have to seek approval which (without an anonymity order) opens them up to public scrutiny.

Resolving the tension

The Court of Appeal (Moore-Bick LJ giving the leading judgment) held that although approval hearings were within the scope of the principle of open justice, there was force in the argument that in the pursuit of justice, the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy, in relation to such proceedings.

Courts, it was said, ‘should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so’. The court went on to recognise the legitimate interest of the press.

Drawing the issues together with commendable clarity, it was said that the following general principles will apply:

• the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
• because the hearing will be held in open court, 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 any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an ‘anonymity order’);
• 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;
• 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; and
• the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval, and should make a copy available to the press on request as soon as possible after the hearing.

Discussion

The Court of Appeal should be commended for a clear and practical judgment which resolves a difficult issue. Once it was recognised that approval of a settlement is essentially private business (in the same way as a settlement for an adult is private business) it was inevitable that it followed that this would usually be an exception to the principle of open justice.

It is difficult to see that there can be any real legitimate interest in publishing the identity of a child in an approval case, but in those rare cases where there might be an interest, the court has included the safeguard of giving the press the right to be heard on the point so as to protect the open justice principle.

In practice it is rare for the defendant/insurer in these cases to do anything other than agree to (or at least not oppose) the anonymity order.

Claire Roantree, head of serious personal injury at Colemans-ctts, commented on considering the judgment: ‘Leaving aside the difficult balance of legal principles, this is a decision which will be welcomed by those who really matter, the families of injured children for whom being identified can, in some cases, literally add insult to injury.’

It would be wrong not to pay tribute to the Personal Injuries Bar Association, and in particular to Rob Weir QC and William Latimer-Sayer, who played a substantial part in obtaining this welcome clarification.

Greg Cox is a partner at Colemans-ctts. He acted for PIBA in the JXMX appeal