Changes to anonymity orders
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Following the decision of the Court of Appeal in case JX MX v Dartford & Gravesham NHS Trust the anonymity orders no longer require a formal application, and can now be made in every approval hearing where a protected party (such as child or adult who lacks capacity) is involved.
The exception to this is when court rules that making an anonymity order is unnecessary or inappropriate.
High Court approval hearings are required for damages settlement approvals, concerning children and other protected parties, under Part 21 of the Civil Procedure Rules. They are held in an open court, where every member of the public and media has a free access.
What has changed?
Before the JX MX v Dartford & Gravesham NHS Trust a claimant had to apply formally for anonymity, inform relevant media agency about any submissions and also explain reasons behind the application during the actual hearing in the court.
This law was wildly criticized for not providing sufficient means, to protect a claimant's personal information from being revealed to the public, which potentially could lead those vulnerable parties to being exposed to people who could take advantage of this information and to invade their privacy.
In JX MX v Dartford & Gravesham NHS Trust the claimant was refused anonymity at the approval hearing in the court of the first instance, who did not consider that there were any reasons for concern; however the same court allowed an appeal.
The claimant appealed and was successful. The Court of Appeal's decision not only allowed anonymity in this particular case, criticizing the previous decision as being wrong, but also set out guidance for similar cases in the future.
The guidelines listed in paragraph 35 of JXMX v Dartford & Gravesham NHS Trust illustrate how anonymity will be dealt with from now onwards:
It suggests that the following principles should apply:
(i) 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;
(ii) 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;
(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, 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”);
(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;
(v) 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;
(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 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.
In summary, the effect of the judgement is that there is no necessity to identify specific risks in order to establish that the protected party requires protection in form of anonymity order, and it can be made without a formal application prior to commencement of the hearing. This should make things much easier for claimants.
The Court also recognised that the press has a right to follow the proceedings and report them, subject to any orders made. However, ''… the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made.'' (para 34 of JXMX v Dartford & Gravesham NHS Trust).
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