Anonymity Orders: Balancing privacy with the principle of open justice

The High Court has recently considered the circumstances in which it is appropriate to grant anonymity orders under CPR 39.2(4) and the stage at which such applications should be made.

In Justyna Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) the Claimant brought proceedings against the Defendant NHS Trust for psychiatric injury allegedly caused by the Defendant’s negligence. Primary liability was admitted at an early stage by the Defendant.

At the start of trial the Claimant applied for an anonymity order on the basis that facts of a deeply personal nature relating to her history of mental health problems were likely to enter the public domain. The application was not actively opposed by the Defendant. It was, however, opposed by the Press Association, which had been invited to make representations by the judge (Martin Spencer J).

In refusing to grant the application Martin Spencer J provided useful guidance as to the exercise of the court’s discretion under CPR 39.2(4) and the need to balance a claimant’s Article 8 rights with those under Article 10 concerning the freedom of the press. Key points from the judgment include:

1. As a general principle the practice whereby anonymity orders are routinely made is peculiar to approval hearings in relation to children and protected parties.
2. Even though this case would likely involve exploration of intimate details of the Claimant’s private and family life, her psychiatric condition and her relationship with her two young children, the full force of the “open justice” principle and the interests of the press in reporting the proceedings, including the names of the parties, should not be derogated from. Having chosen to bring the proceedings the Claimant could not 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.
3. ABC v St George’s Healthcare Trust [2015] EWHC 1394 (QB), in which an anonymity order was made in relation to a claimant who was not a child or a protected party, was authority for the proposition that the general principle (identified at (1) above) is not absolute and can be departed from where such departure is necessary in circumstances which are truly exceptional. In ABC an anonymity order had been granted to prevent the Claimant (an adult with capacity) being identified by her daughter as this would have alerted her daughter to the risk that she had inherited Huntington’s Disease from her mother.
4. Applications for anonymity orders should be made well in advance of the trial and served on the Press Association. This had not been done in this case and had put the court reporter in an awkward position. The delay in issuing the application had also prevented full consideration of the issues given that the Press Association had not been provided with sufficient time to prepare submissions.