Anonymity law amended

A recent Court of Appeal case will mean that fewer children involved in medical negligence or personal injury claim will be able to be identified in the media. Trusts need to be careful not to name children inadvertently in such cases.

The Court of Appeal has determined that when there is a request for a court to approve settlement of a medical negligence or personal injury claim being brought by a child or claimant lacking mental capacity (known as a protected party) the identity of the child or protected party should normally be protected through an anonymity order. This is a change to the former position where a formal application for anonymity had to be made by the child’s representative.

The previous position

Settlements of damages involving children and protected parties must be authorised by the High Court, unlike settlements involving adults. However, these approval hearings take place in open court, which means members of the public and media are free to attend. There was strong criticism that the law was not doing enough to prevent highly personal information from being exposed in court. Such information could include a claimant’s name, address, current medical condition and future care needs.

Before this recent decision, a claimant would have to apply formally for anonymity and provide the Press Association news agency, as representative of the wider media, with a copy of any submissions. Claimants were required to set out before the court the reasons why they should not be named.

Reversing the burden

In this particular claim, JX MX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96, JX had sustained severe injuries at the time of her birth and brought a medical negligence claim against the defendant hospital trust. The claim was settled and damages were agreed out of court. However, an approval hearing at court was needed to confirm the settlement. JX’s solicitors sought an order preventing publication of her identity. The judge declined to make this order but did give permission to appeal. The appeal was successful. The Court of Appeal held the original judge had been wrong not to make an order preventing the publication of the claimant’s name and personal information. It also issued guidance setting out how such cases should be handled in future. The effect of the judgment is that a court will now, as a matter of routine, make an anonymity order in respect of claimants and protected parties at an approval hearing. The burden has now shifted to the Press Association and the other parties in the claim to show that there is good reason for the court not to make such an order.

Practical points for trusts’ legal teams

This decision has important practical consequences for a hospital trust’s legal department. There will be more cases where the trust will need to ensure it is doing what it can to preserve the claimant’s anonymity:

  • Remember, once an anonymity order is in place, steps must be taken to ensure that a claimant is not inadvertently named. This anonymity is lifelong for the child or protected party.
  • In practical terms, this could mean ensuring that a claimant’s name is removed from all outgoing communication including letters, emails and payments into court.
  • Remember that the anonymity order can be challenged in circumstances when it could be deemed unnecessary or inappropriate. However in reality, it is hard to envisage circumstances when a defendant trust would want to raise such arguments.

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