Claim Number: QB-2020-002034
In the High Court of Justice
King’s Bench Division
1 December 2022
(1) Epsom and St Helier University Hospitals NHS Trust
(2) St George’s University Hospitals NHS Foundation Trust
BEFORE Master Cook sitting in Room E112 on 01/12/2022
UPON HEARING Nigel Spencer Ley of Counsel on behalf of the Claimants
(1) Consideration of the Article 8 rights of the Claimants to respect for private and family life, and the Article 10 right to freedom of expression.
(2) It appearing that the case is likely to attract publicity and that revealing the identity of the Claimants and the Claimants’ minor son (whose birth is the subject of this action, and who will not have capacity as an adult) is likely to unfairly damage their interests.
(3) It appearing that non-disclosure of the identity of the Claimants and their son is necessary to secure the proper administration of justice and in order to protect the interests of the Claimants and their son whose birth is the subject of this action and that there is no sufficient countervailing public interest in disclosure.
(4) The Defendants indicating their neutrality to the making of the order and there being no representations from the press or any other interested party.
AND PURSUANT to section 6 of the Human Rights Act 1998; section 11 of the Contempt of Court Act 1981; and CPR rules 5.4C, 5.4D and 39.2(4).
WHEREAS for the purposes of this order:
(1) ‘Publication’ includes any speech, writing, broadcast, or other communication in whatever form (including internet and social media), which is addressed to the public at large or any section of the public.
(2) Publication for the purpose of this Order includes any further publication (as defined in subparagraph (1) above) from the date of this Order, even if such information has derived from a previous stage or stages of these proceedings.
IT IS ORDERED BY CONSENT THAT:
(1) The identity of the Claimants as a party to these proceedings and their son whose birth is the subject of this action is confidential and shall not be published.
(2) Pursuant to CPR Rule 39.2(4), there shall not be disclosed in any report of these proceedings or other publication the name or address of the Claimants, their son whose birth is the subject of this action, or other immediate family members, or any details (including other names, addresses, or a specific combination of facts) that could lead to the identification of the Claimants and their son whose birth is the subject of this action in these proceedings. The Claimants and their son whose birth is the subject of this action shall be referred to as set out at paragraph 3 of this Order.
(3) In any judgment or report of these proceedings, or other publication (by whatever medium) in relation thereto:
(i) The First and Second Claimants shall be referred to as [“EFG”] and [“HJG”] respectively.
(ii) The Claimant’s son whose birth is the subject of this action shall be referred to as [“PQR”].
(iii) Any other details which, on their own or together with other information publicly available, may lead to the identification of the Claimants (including any names of other immediate family members or their addresses) shall be redacted before publication.
(4) Pursuant to CPR Rules 5.4C and 5.4D:
(i) A person who is not a party to the proceedings may not obtain a copy of a statement of case, judgment or order from the Court records unless the statement of case, judgment or order has been anonymised in accordance with subparagraphs 3(i) to (iii) above.
(ii) If a person who is not a party to the proceedings applies (pursuant to CPR r.5.4C(1B) or (2)) for permission to inspect or obtain a copy of any other document or communication, such application shall be on at least 7 days’ notice to the Claimants’ solicitor.
(5) The Claimants’ solicitor shall file with the Court an electronic (PDF) bundle of the statements of case that have been anonymised in accordance with paragraph 3 above by [22 December 2022], and re-filed in the event that any statement of case is amended, within 21 days of such amendment being approved.
(6) The Court file shall be clearly marked with the words “An anonymity order was made in this case on [“tbc”] and any application by a non-party to inspect or obtain a copy document from this file must be dealt with in accordance with the terms of that Order.”
(7) Any interested party, whether or not a party to the proceedings, may apply to the Court to vary or discharge this Order, provided that any such application is made on 7 days’ notice to the Claimant’s solicitor.
(8) Pursuant to the ‘Practice Guidance: Publication of Privacy and Anonymity Orders’ issued by the Master of the Rolls dated 16 April 2019 a copy of this Order shall be published on the Judicial Website of the High Court of Justice (www.judiciary.uk). For that purpose, a court officer will send a copy of the order by email to the Judicial Office at firstname.lastname@example.org.
(9) The costs of obtaining this order be costs in the case.
The order defines the scope of ‘publication’ and makes clear that it is a communication which is “addressed to the public at large or any section of the public”. Set out below is a non-exhaustive list of examples of communications and records which would not constitute publication within the meaning of this order (providing always that proper steps are taken to protect the confidentiality of information from being made public). In this list references to ‘the anonymised party’ include that party’s appointed representatives and advisers, such as solicitor, Litigation Friend, attorney, trustee and deputy.
(i) Communications between the Court Funds Office and the anonymised party in relation to the payment of money into the Court Funds Office for the benefit of the anonymised party or the investment or treatment of payment out of such money.
(ii) Communications between the Court Funds Office, the anonymised party, and any financial institution concerned as to the receipt or investment of such money.
(iii) Records kept by the Court Funds Office, the anonymised party, and any financial institution concerned as to the receipt or investment of the Claimant’s money.
(iv) Retention by all parties to the claim, their representatives, and their advisers of their unredacted files for the purposes of their continuing functions and obligations in relation to the proceedings.
(v) Communications between the Defendant(s), their insurers, or their successors in title and their legal and professional advisers, reinsurers, HM Revenue and Customs (or its successor), the Compensation Recovery Unit or any other person required by law.
(vi) Communications between the anonymised party’s representatives and advisers in managing that party’s affairs.
(vii) Communications for the purpose of obtaining medical care, advice or treatment for the anonymised party.
(viii) Communications by or on behalf of a paying party for the purposes of ascertaining whether the anonymised party is alive, so entitled to continuing periodical payments.