- Litigation Futures - https://www.litigationfutures.com -

No anonymity for woman suing NHS for £6m

Spencer: Consequences of bringing claim

A woman suing a hospital trust for over £6m following the stillbirth of her first child cannot benefit from anonymity, the High Court has ruled.

Mr Justice Martin Spencer said that, having chosen to claim damages for psychiatric injury, Justyna Zeromska-Smith could not “avoid the consequences of having made that decision in terms of the principle of open justice”.

He said the anonymity application was made at the start of the trial, without any notice being given to the Press Association.

“This put the court reporter in an awkward position, and did not allow for full consideration of the issues or properly prepared submissions on behalf of the press.”

The judge said the United Lincolnshire Hospitals NHS Trust took a neutral stance, but in general an anonymity application should be made and heard in advance of the trial, and served on the Press Association.

“There are two reasons for this. First, and most obviously, it gives the Press Association a proper opportunity to make representations, whether orally at the application or in writing in advance.

“Secondly, the outcome of the application may inform any decision taken by a claimant in relation to settlement.

“Thus, if a claimant in a sensitive case such as the present knows that, if the matter goes to trial, her name will be published in the press, she may consider that to be an important factor in deciding whether or not to accept an offer of settlement – in some cases it could tip the balance.”

Spencer J said claimants should not “assume that the application will be entertained at the start of the trial”, because of disruption to the trial if the case needed to be adjourned to give the Press Association time to make submissions, nor that it will be “nodded through” by the judge, where the defendant took a neutral stance and there was only a court reporter to represent the press.

The High Court heard in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) that the hospital trust admitted liability for the stillbirth of Ms Zeromska-Smith’s baby in May 2013.

The trust also accepted that she was entitled to damages to “represent her loss arising out of the fact that the pregnancy was not brought to a successful conclusion”.

However, the judge said Ms Zeromska-Smith also sought “substantial damages” for “what is claimed to be a pathological grief reaction combined with depression, which has proved intractable”.

Although she had since had two sons, the judge said the claimant argued that she suffered from “pathological separation anxiety” in relation to both of them, as a result of the stillbirth.

Counsel for Ms Zeromska-Smith argued that the principle of open justice was satisfied by the defendant being identified without the claimant.

“She submits that the trial includes matters of a deeply personal and private nature concerning the claimant’s mental health, her relationship with her two children, her intimate medical history and her past suicidal ideation which included thoughts of ending her life as well as that of her son.

“Although she is not a protected party, she is described as a ‘highly vulnerable individual’ and the interests of her young children should, it is submitted, be weighed in the balance.

“It is submitted that publication of the claimant’s identity will serve no useful public purpose but will risk considerable further harm to the claimant’s already precarious mental health and harm to her children and family.”

Spencer J said the Press Association argued that anonymity applications from parties who were not protected “should only be made in exceptional circumstances and where necessary in the interest of the administration of justice”.

Making an anonymity order in this case “would represent a departure from the previous jurisprudence” and “set an unfortunate precedent”.

The Press Association also argued that many of the details of the case, especially those of a sensitive nature, “would not necessarily need to be made public” and could be heard in private or protected by reporting restrictions.

The judge said the claimant could derive “no support or comfort” from case law relating to children or protected parties, and he did not consider that in a case such as the present, “the principle of ‘open justice’ was adequately satisfied by the name of the defendant being published, but not the name of the claimant”.

He concluded: “In the present case, the revelation of the matters personal to this claimant and her family are inherent and intrinsic to a claim of this nature, relating as it is to psychiatric injury suffered by the claimant from the stillbirth of her daughter.

“Having chosen to bring these proceedings in order to secure damages arising out of that tragedy, the claimant cannot avoid the consequences of having made that decision in terms of the principle of open justice and the consequent publicity potentially associated with such proceedings being heard in open court.”

The anonymity application was refused.