PLM -v- The Royal Wolverhampton NHS Trust (anonymity order)

High CourtKing's Bench DivisionAnonymity Order

Claim Number: KB-2024-BHM-000020

In The High Court Of Justice
King’s Bench Division
Birmingham District Registry

8 February 2024

Before:
HHJ Emma Kelly

Between:
PLM (a child proceeding by his Mother and Litigation Friend QMN)
-v-
The Royal Wolverhampton NHS Trust

Anonymity Order

BEFORE HHJ EMMA KELLY sitting in the High Court of Justice, King’s Bench Division, Birmingham District Registry on 8 February 2024

UPON considering the Claimant’s application for an anonymity order, dated 30 January 2024

AND UPON the Court disposing of the Claimant’s application on paper without service of a copy of the application notice, pursuant to CPR 23.8(c), 23.9 and 23.10

AND UPON

(1) Consideration of the Article 8 rights of the Claimant to respect for private and family life, and the Article 10 right to freedom of expression.

(2) It appearing that non-disclosure of the identity of the Claimant is necessary to secure the proper administration of justice and in order to protect the interests of the Claimant and that there is no sufficient countervailing public interest in disclosure.

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 (i) 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 THAT:

  1. The identity of the Claimant as a party to these proceedings is confidential and shall not be published.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 Claimant, the Claimant’s Litigation Friend 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 PLM as the Claimant in these proceedings. The Claimant and the Litigation Friend 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 Claimant shall be referred to as “PLM”.
    (ii) The Litigation Friend shall be referred to as “QMN”.
    (iii) Any other details which, on their own or together with other information publicly available, may lead to the identification of the Claimant (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 Claimant’s solicitor, trustee or deputy.
  5. The Claimant’s solicitor shall file with the Court an electronic (PDF) bundle of the statements of case that has been anonymised in accordance with paragraph 3 above by 21 days from date of Order, 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 8 February 2024 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, trustee or deputy.
  8. Regardless of whether any application to vary or discharge this order is made pursuant to paragraph 7 or 11 of this order or otherwise, the continuation of the anonymity order will be reviewed at the first hearing of the claim when the Defendant, press or any other interested party will have the opportunity to make any representations they so wish.
  9. 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 judicialwebupdates@judiciary.uk.
  10. The costs of obtaining this order be costs in the case.
  11. The Court has disposed of an application without service of a copy of the application notice. Any person who was not served with a copy of the application before the order was made may apply to have the order set aside or varied, with any such application to be made within 7 days after the date on which this order was served on the person making the application.

Reasons for the order

(a) The claimant is a child with wide-ranging disability who brings a clinical negligence claim by their litigation friend. The litigation will ventilate medical and other personal details as to which the claimant has the entitlement to privacy. The parties have agreed, subject to court approval, an interim payment. Anonymity is necessary to protect the claimant against any unwarranted invasion of privacy and interference with their right to family life.

(b) The court has determined the claimant’s application for an anonymity order on the papers on the issue of the claim to avoid the risk that the jurisdiction to impose reporting restrictions under s.11 of the Contempt of Court Act 1991 is lost should the claimant’s name or that of his litigation friend be ventilated in open court. [See the decision of the Divisional Court in R v Crown Court at Winchester ex p. Rai [2021] EWHC 339 at para. 27. The Court of Appeal in Rai [2021] EWCA Civ 604 at para. 19 endorsed the Divisional Court’s statement of the relevant legal principles.]

(c) The court has also considered the principles at para. 35 of JXMX v Dartford & Gravesham NHS Trust [2015] EWCA Civ 96. In order to ensure the defendant and any interested party, including the press, has the opportunity to make submissions, the Court will review the continuation of the anonymity order at the first hearing in the claim, in addition to the entitlement of any person to make an earlier application to vary or discharge the anonymity order.

HHJ Emma Kelly 08.02.24

EXPLANATORY NOTE

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.