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Courts should “normally” make anonymity orders to protect children in PI settlements

RCJ [1]

Moore-Bick LJ: Courts dealing with “essentially private business”

Courts should “normally” make anonymity orders to protect children involved in personal injury settlements without the need for formal applications, appeal judges have ruled.

Lord Justice Moore-Bick said courts, which must approve all settlements or compromises of claim involving children, should only not make an order where they were satisfied that it was “unnecessary or inappropriate to do so”.

Overturning a High Court ruling by Mr Justice Tugendhat, Moore-Bick LJ said court should recognise that, when dealing with approval applications from children or protected parties, they were dealing with “what is essentially private business, albeit in open court”.

He went on: “The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done.

“At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order prevent the administration of justice being brought into disrepute.

“This is an area in which fine distinctions are difficult to justify and not easily understood. Proceedings of this kind are sadly not uncommon and some or all of the issues to which this appeal gives rise regularly confront judges dealing with such applications.”

Giving the judgment of the court in MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 [2], Moore-Bick LJ said that given the “uncertainty among judges about the course that should be taken”, it was appropriate for the Court of Appeal to give some guidance.

He said anonymity orders should prevent publication of the names and addresses of claimants, their immediate family and also the name of any litigation friend.

The press should be “given the opportunity to make submissions” before any order was made, and would normally have to “file and serve on the claimant” a statement setting out its case.

Moore-Bick LJ said that “unless satisfied after hearing argument that it is not necessary to do so”, judges should make an anonymity order.

Earlier in the ruling, he said: “The claimant in the present proceedings, who is now aged six, suffered very severe injuries at the time of birth. Her expectation of life is limited and she will be a protected party when she becomes an adult.

“Acting by her mother she brought proceedings in the High Court against the defendant hospital trust alleging negligence on the part of those who were responsible for her care. In due course the defendant agreed to settle her claim by paying a very significant sum in damages.

“The damages included both a large lump sum and substantial periodical payments. An application was then made to the court seeking approval of the settlement.”

Lord Justice Moore-Bick allowed MX’s appeal. Lord Justice Lewison and Lady Justice Black contributed to the judgment.