Focus on Brain Injury | Victims secure the right not to be named in court proceedings

Victims Secure The Right Not To Be Named In Court Proceedings

On 20th February 2015, the Court of Appeal handed down judgment in a case involving a six year old child who sustained very severe injuries at the time of her birth. Proceedings were brought against the relevant NHS trust and settlement terms were agreed. The claimant, who has a limited life expectancy, is a Protected Party.

Any terms of settlement in any case involving a Protected Party must be approved by the court. In such proceedings, whether issued for the purposes of securing approval or whether already in existence, the claimant’s name will feature in the court papers as will that of the Litigation Friend. Both would typically feature in the final court order that contains the terms of settlement. Approval hearings are public hearings, which members of the public can request and have sight of documents relating to court proceedings.

It has been the practice of those involved in representing claimants in such cases for many years to apply to anonymise the final order in the case. The reasons for seeking such anonymity are obvious; very few claimants want to run the risk of the detail about the settlement becoming public knowledge and such claimants are often vulnerable individuals who may be at risk of exploitation or undue influence. The practice of the courts has varied tremendously in such situations and there was no doubt that clarification was needed.

At the approval hearing, the claimant’s legal team applied for various orders seeking to ensure that the claimant’s identity was withheld on an indefinite basis from the public. This included an application for an order preventing anyone other than the parties to the action from obtaining copies of the pleaded case from the court file and an application that the claimant’s name and address be removed from the final order approving the terms of settlement in the case, again to prevent the public from identifying the claimant. The judge refused to make an order preventing publication of her name although he did make an order in respect of her address. He also refused to make an order preventing anyone other than the parties from being able to access documents on the court file in the future. He did however grant permission to appeal his decision and made temporary orders protecting the claimant pending the hearing of that appeal.

The claimant appealed the judge’s decision. The issue was of such importance that the appeal court also heard representations from the Personal Injury Bar Association and the press. The Court of Appeal had to consider whether it was necessary, to achieve justice in the case, to anonymise the claimant so that the claimant’s name would never be available to the public. The Court of Appeal also agreed with the judge at the approval hearing who held that the fact that neither the defendant nor the press objected to the claimant’s name being withheld does not give the court a green light to derogate from the principles of open justice.

If the court is to derogate it must be by the least restrictive means consistent with achieving justice. Emphasis was then placed on the very real issue of the claimant and her family’s right to privacy which the court observed is acknowledged and reflected in other civil courts; the family proceedings rules, the Court of Protection rules and the European Convention on Human Rights all place considerable emphasis on this issue. The Court of Appeal was persuaded that although each case must be considered on its own facts, the starting point approval hearings will be an anonymity order that disguises the names of the claimant and Litigation Friend and removes the claimant’s address. In addition the standard order will place restrictions on access by individuals who were not party to the proceedings to key documents held on the court file.

So, there is now no need for a formal application for anonymity; it should be the norm and the starting point at any approval hearing. The Court also issued useful guidance about how this will work in practice; case lists naming parties are published in public areas of courts every day and online. Those lists will continue to use the full name of the parties in such a case unless an anonymity order has already been made. The hearing will proceed in public as has always been the case; press and public will be entitled to attend. The judge will invite submissions from anyone who considers that an anonymity order should not be made. If there are no submissions, the judge will make the order. If there are submissions and the judge has to reach a decision, he will give a short judgment with reasons.

There is no doubt that this decision will be welcomed by the vast majority of claimants and their families who are embroiled in complex, high value and highly emotive personal injury litigation. As those representing PIBA submitted at the appeal, there is an irony in the fact that adults who have capacity can conduct and complete their personal injury claims in relative privacy – no court approval of the final settlement is needed. Few claimants appreciate the extent to which such litigation will invade every aspect of their lives when they embark upon the process. It is reassuring to see that the court recognises this too and is acknowledging the role that open justice has to play in protecting those who are most vulnerable as they embark upon the rest of their lives.