"What's in a name" - Anonymity for claimants in PI claims

It has long been a fundamental principle of the common law that justice is administered in public and judicial decisions are pronounced publically.

It has long been a fundamental principle of the common law that justice is administered in public and judicial decisions are pronounced publically.

As long ago as 1913, Lord Atkinson, speaking in the House of Lords in Scott v Scott [1913] AC 417 stated that, even if a hearing of a case may be ‘painful’ or ‘humbling’ for parties and witnesses alike and details may “be so indecent as to tend to injure public morals”, a public hearing provided the best security for “the pure, impartial and efficient administration of justice”.

Even then, there were exceptions for cases involving “wards of court” and what would today be seen as protected parties (albeit with the now grossly insensitive title of “lunatics”).

The key word in determining whether to depart from the norm was whether it was ‘necessary’ to do so. The importance of that word is reflected in Part 39 of the CPR.

Rule 39.2(1) provides “the general rule is that the hearing is to be in public”. Part 39.2(3) provides:

A hearing, or any part of it, may be in private if … (d) a private hearing is necessary to protect the interest of any child or protected party or: (g) the court considers this to be necessary in the interests of justice. CPR 39.2 (4) provides: “The court may order that the identity of any party or witness must not be disclosed if it considers non disclosure necessary in order to protect the interest in that party or witness”.

Since 2015, following the decision of the Court of Appeal in JXMC v Dartford & Gravesham NHS Trust, it has become the norm to anonymise the name of the claimant in settlement approval proceedings in claims for personal injury brought by a child or protected party, the purpose being to protect the vulnerable. In giving judgment the court made specific reference to the need for it to be ‘necessary’ to “consider whether a derogation of any kind is strictly necessary”.  

What then of adult Claimants?

In the recent case of Zeronska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 the Claimant pursued a claim for damages pleaded in excess of £6m to reflect her disabling pathological grief reaction and separation anxiety towards her two children which, it was alleged, befell her following the death, in utero, of her first child. Although not a protected party, she was said to be “highly vulnerable”, with past suicidal ideation. Her Counsel argued she and her family were at risk of abuse via social media if named, that public knowledge of her mental health would cause “real harm to her children”, and that a significant award would expose her and her family to “unwarranted attention”.

Mr Justice Spencer rejected those arguments. The revelation of matters personal to the Claimant and her children were “inherent and intrinsic” to a claim of this nature. Even the “exploration of intimate details of her private and family life” did not mean “the full force of the open justice principle and the interests of the press in reporting the proceedings” should be derogated from; it was not ‘necessary’ to depart from the principle of open justice.

Will it ever be ‘necessary’?

The answer is yes but only in circumstances that are “truly exceptional”. The case of ABC v St George’s Health Care Trust [2015] EWHC 1394 serves as a helpful example. That case involved the Claimant having been diagnosed with Huntington ’s disease, a virulent and life threatening neurological condition. It is a dreadful consequence of that condition that a sufferer’s child has a 50% risk of inheriting the condition. The Claimant’s daughter was unaware of the risk and Mr Justice Nicol accepted that there could be serious consequences for the daughter if she found out through a report of the proceedings. She should only find out through a managed mechanism, at an appropriate age and when in a position to be given appropriate advice and counselling.

It is therefore clear from the case law that the principle of open justice remains at the very core of the administration of justice and the courts will, save for cases involving children and protected parties, be very reluctant to depart from it. If a party is minded to ask the court then Mr Justice Spencer offered guidance: be aware how high the evidential burden is in proving it is ‘necessary’ to depart from the norm, do it early and certainly well in advance of the trial, and serve notice upon the Press Association.  

For any further information regarding any aspect of the issues raised in this case, please contact; Jonathan Lanigan, Partner on 0161 233 7469 or email jonathan.lanigan@weightmans.com or contact Dave Cottam, Partner on 0116 242 8924 or email dave.cottam@weightmans.com

 

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