Anonymity will now be afforded to Claimants as a matter of routine practice unless for some reason the Court is satisfied it is not necessary or inappropriate to do so. Such circumstances appear to be very few and far between and the burden is now very much placed on the Press to provide reasons why anonymity should not be granted.
Prior to Fieldfisher's intervention there was much uncertainty amongst Judges at first instance with regards to the decision making process that should be followed in deciding whether or not to award anonymity to Claimants. Because a child or a protected party is deemed to lack capacity and therefore is unable to approve the terms of the settlement in their claims it is necessary for the settlement to be approved by the Court at an approval hearing. This is an entirely appropriate step to ensure that Claimants are not taken advantage of, and that they are awarded appropriate compensation. The downside of such hearings are that they are open to members of the public, and in particular the Press, who subject to an order granting anonymity, are able to report full details of the settlement, including the name and address of the Claimant and his/her family.
Up until today's Court of Appeal judgement, Claimants had to formally apply for anonymity, inform the Press Association of the approval hearing and provide them with a copy of any submissions setting out why anonymity should be granted. The Press were then free to attend the approval hearing and provide reasons as to why anonymity should not be given. Judges would consider the application on a case by case basis, regardless of the consent of the Defendant, emphasising that in order to derogate from the principle of open justice there must be a need for anonymity, with the Claimant therefore forced to provide good reasons as to why they needed anonymity.
Judges at first instance would frequently not award anonymity citing that the Claimant, or more appropriately his/her family, were unable to provide the Court with any specific reasons as to why anonymity should be granted. It would usually be argued on behalf of Claimants that if it were known that they had been awarded sums of money sometimes in excess of £10,000,000, that they may be harassed by neighbours, by parents of other children at their school, or members of the public, who wanted money themselves. Sometimes such arguments would persuade a Judge that anonymity should be awarded but sometimes it would not. There was no consistent approach being adopted by the judiciary. In the case of JxMx, the Judge at first instance, was not persuaded to grant anonymity, hence the appeal.
Now, following the Court of Appeal judgement, a new approach is to be taken. Although the principle that approval hearings lie within the scope of the principle of open justice, the Court of Appeal found that there was "force in the argument that in the pursuit of open 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." Further, the court found that "the public interest may usually be served without the need for disclosure of the Claimant's identity."
Most importantly of all, the Court of Appeal stated "we have been persuaded that, although each application will have to be considered individually, a limited derogation from the principle of open justice will normally be necessary in relation to approval hearings to enable the court to do justice to the Claimant and his or her family by ensuring respect for the family and private lives. In some cases it may be possible to identify specific risks against which the Claimant needs to be protected and if so, that will provide an additional reason for derogating from the principle of open justice, but we do not think that it is necessary to identify specific risks in order to establish a need for protection."
The Court of Appeal judgement means that it is now recognised that approval hearings, whilst in open court, are dealing with private business and a court will now normally make an anonymity order without the need for any formal application, drawn in such terms so as to prevent the publication of the name and address of the Claimant, his or her immediate family and litigation friend. In order to ensure that the Press, quite rightly, still have the opportunity to report matters that are of public interest, namely the level of any settlement and the paying party, the Press have the right to attend any approval hearing. If the Press feel anonymity should not be granted then the burden is on them to file and serve on the Claimant a statement setting out the reasons.
At the conclusion of the case, Mark Bowman, partner in Fieldfisher's medical negligence and personal injury department, who represented JxMx at the Court of Appeal with Henry Witcomb and Lizanne Gumbel QC of counsel, all acting on a pro bono basis, stated:
"This truly is a landmark decision. It is fantastic to know that as a result of our appeal that not only my client but Claimants all over the country will now be able to pursue medical negligence or personal injury claims without the fear or worry that at the end of their claim, their name and address will be plastered all over the internet for all and sundry to see. It is only right that the public should know that a Defendant has had to pay out substantial compensation to an injured Claimant, but there is no public interest in knowing who the Claimant is or where he or she lives. This judgement is very much a victory for Claimants across the country and brings much needed certainty to an area of law that was previously both uncertain, and frequently unfair to Claimants."