MX v Dartford and Gravesham NHS Trust and Others: CA 17 Feb 2015

Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should have been made: ‘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.’
Moore-Bick VP LJ said: ‘Any application of the present kind, therefore, gives rise to tension between the principle of open justice and the need to do justice in the individual case; or, if the matter is considered in Convention terms, a question whether it is necessary to interfere with the rights of the public and the Press under article 10 in order to protect the rights of the claimant and his or her family under article 8 and vice versa. The constitutional importance of the principle of open justice, as recognised in the authorities, is such that any departure from it must be justified strictly on the grounds of necessity. The same may be said of the right to freedom of speech. In either case the test is one of necessity. Although that usually involves a decision based on the judge’s evaluation of the facts of the case before him, it is important to be clear that the decision does not involve an exercise of discretion. Accordingly, although this court will accord proper deference to the judge’s assessment, it will in an appropriate case consider the matter afresh and decide for itself whether the proposed derogation from the principle of open justice is indeed necessary. It follows from the fact that the test is one of necessity that in order to be justified the derogation must be the minimum that is consistent with achieving the ultimate purpose of doing justice in the instant case.’

Moore-Bick VP, Black, Lewison LJJ
[2015] WLR(D) 77, [2015] EWCA Civ 96, [2015] 1 WLR 3647
Bailii, WLRD
European Convention on Human Rights 14 10, Children and Young Persons Act 1933 39
England and Wales
CitedScott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
CitedEvans and Others v The Serious Fraud Office QBD 12-Feb-2015
The claimants had had criminal charges brought against them by the defendants. A court had ordered them discharged, but the defendant had recommenced proceedings and these second set of proceedings had also been dismissed by the court. They now . .
CitedAttorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
CitedB v The United Kingdom; P v The United Kingdom ECHR 2001
The provisions of rule 4.16(7) providing for confidentiality in children proceedings were Convention compliant: ‘such proceedings are prime examples of cases where the exclusion of the press and public may be justified in order to protect the . .
CitedIn re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
CitedA v Independent News and Media Ltd and Others CA 31-Mar-2010
The newspapers sought leave to report proceedings before the Court of Protection in connection with a patient unable to manage his own affairs. The patient retained a possible capacity to work as a professional musician. The family wanted the . .
CitedJIH v News Group Newspapers Ltd CA 31-Jan-2011
Principles on Request for Anonymity Order
The defendant appealed against an order granting the anonymisation of the proceeedings.
Held: The critical question is whether there is sufficient general public interest in publishing a report of proceedings which identifies a party by name, . .
CitedBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .
CitedA v British Broadcasting Corporation (Scotland) SC 8-May-2014
Anonymised Party to Proceedings
The BBC challenged an order made by the Court of Session in judicial review proceedings, permitting the applicant review to delete his name and address and substituting letters of the alphabet, in the exercise (or, as the BBC argues, purported . .
CitedRegina v Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-Jun-1998
Limitation on Making of Anonymity Orders
A firm of solicitors sought an order for anonymity in their proceedings against the LAB, saying that being named would damage their interests irrespective of the outcome.
Held: The legal professions have no special part in the law as a party . .
CitedMXB v East Sussex Hospitals NHS Trust QBD 20-Nov-2012
The claimant child invited the court to protect his identity in these proceedings by the making of an order under section 39 of the 1933 Act.
Held: The court described the limitations inherent in such order in modern conditions where the . .
CitedJC and Another v The Central Criminal Court QBD 8-Apr-2014
The court was asked whether an order made under s. 39 of the 1933 Act, prohibiting the identification of (among others) a defendant under the age of 18 years, can last indefinitely or whether it automatically expires when that person attains the age . .
Appeal fromJXMX (A Child) v Dartford and Gravesham NHS Trust QBD 17-Dec-2013
The court asked whether it should make an order that the claimant be identified by letters of the alphabet, and that there be other derogations from open justice (an anonymity order), in a claim for personal injuries by a child or protected party . .

Cited by:
CitedH v A (No2) FD 17-Sep-2015
The court had previously published and then withdrawn its judgment after third parties had been able to identify those involved by pulling together media and internet reports with the judgment.
Held: The judgment case should be published in . .
CitedMoney v AB ChD 10-Nov-2021
Anonymity – balance in favour of open justice
Ruling on an application by the Defendant for anonymity.
Held: Refused: ‘The mental health condition of the Defendant and the impact of the judgment on his family relationships are, therefore, relevant factors to take into account, but they do . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Media, Human Rights, Children

Updated: 17 November 2021; Ref: scu.542930