Article by Gill Phillips, Director of Editorial Legal Services, Guardian News & Media Limited, Explaining The Developments Surrounding Applications for anonymity in cases involving settlements of medical negligence claims.

Article by Gill Phillips, summarising the law relating to anonymity for children in cases involving settlements of medical negligence claims.

March 2014

Tags: Media Reporting, Transparency, Anonymity, Child Welfare, Children, Medical Negligence

In JXMX (A Child proceeding by her Mother and Litigation Friend Mrs AXMX) v Dartford and Gravesham NHS Trust, [2013] EWHC 3956 (QB) Mr Justice Tugendhat refused to grant anonymity to a family which had reached a multi-million-pound settlement with an NHS trust over a claim which led to the birth of a girl with severe physical and learning difficulties.

Mr Justice Tugendhat observed that until recently applicants in hearings seeking the court’s approval of a settlement had not sought anonymity, but applications for anonymity were now made in most approval hearings. Often the media were not given copies of the orders or any other papers. The Judge emphasised that the simple fact that there was no media opposition was not sufficient to allow an application to succeed without more and pointed out that “The fact that no media organisation opposes an application, or even the fact (if it be such) that there is consent to the order, does nothing to relieve the court of its obligation to apply the law on open justice for the benefit of the public at large.” “The question at issue is whether the court should grant a derogation from open justice, and from the rights of the public at large”.

In JXMX, the child’s mother had argued that the internet meant that information which was once ephemeral was recorded in permanent form, indefinitely discoverable with a search engine. No specific facts were relied upon as giving rise to a risk from which the child might need protection through an anonymity order. The main concern was distress and the possible adverse consequences of publicity to the family. Mr Justice Tugendhat was not convinced that “the risks are such that a derogation from open justice would be either a necessary or a proportionate measure to address those risks”, although because he felt this was an important area that needed to be considered by the Court of Appeal, and had given permission to appeal, he continued the Order identifying the claimant only by letters; he had ordered that the family’s address could not be published.

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Author Information

Gill Phillips, Director of Editorial Legal Services, Guardian News & Media Limited

E Mail: gill.phillips@guardian.co.uk

 

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