The Dekagram: 22nd April 2025

We hope our readers enjoyed the long Easter weekend and grasped the opportunity, as we did, to spend a restful few days away from the coalface. We kept one eye on the courts though, and it’s just as well we did, because last week brought some big developments – in anonymity, in medicolegal testing, and in service. Tom Collins, William Dean and Francesca O’Neill are on hand to tell us all about it.

Anonymity: Abbasi and another (Respondents) v Newcastle upon Tyne Hospitals NHS Foundation Trust (Appellant); Haastrup (Respondent) v King’s College Hospital NHS Foundation Trust (Appellant) [2025] UKSC 15

Should clinicians who decide to withdraw life-sustaining treatment from children be named? Would public scrutiny promote better practice or would the threat of reprisals discourage clinicians from working in this vital and difficult area of practice? How does one balance the grieving parents’ freedom of speech with the clinicians’ right to privacy? These were the questions at the heart of the Supreme Court’s decision in the conjoined appeals in Abbasi and Haastrup, handed down last Wednesday (16^th April 2025).

The Issue

These appeals involved two families, the Abbasis and the Haastrups, whose children, Zainab and Isaiah respectively, tragically died during or following disputes with NHS Trusts over the withdrawal of life-sustaining treatment. During the original High Court proceedings concerning the children’s best interests, indefinite injunctions were granted. These orders prohibited the identification of the clinicians and, in one case, a wider range of hospital staff involved.

After the children’s deaths and the conclusion of the original proceedings, the parents sought to discharge these injunctions. They wished to publicly share their experiences, including criticisms of the care provided, which involved naming the staff involved. This created a direct conflict between the parents’ Article 10 rights (freedom of expression) under the European Convention on Human Rights (ECHR) and the clinicians’ Article 8 rights (right to respect for private and family life).

The central issue before the Supreme Court was whether, and on what basis, such injunctions protecting clinicians’ anonymity could lawfully continue indefinitely after the original court proceedings concerning the child’s welfare had concluded.

Background: The Journey to the Supreme Court

Original Proceedings: Both cases originated in the Family Division of the High Court, where NHS Trusts sought declarations that withdrawing life-sustaining treatment was in the best interests of Zainab Abbasi and Isaiah Haastrup. Tragically, Zainab died before a final hearing, while Isaiah died after treatment was withdrawn following court authorisation.

Injunctions Granted: During these sensitive proceedings, the High Court granted reporting restriction orders prohibiting the identification of clinicians and staff. This was initially done to protect the integrity of the proceedings, ensure the child’s welfare was not compromised by harassment of staff, and potentially protect staff privacy.

Parents’ Application to Discharge: The parents later applied to have these indefinite injunctions lifted, arguing they prevented them from telling their stories and raising legitimate concerns about their children’s care.

• High Court Decision ([2021] EWHC 1699 (Fam)): The President of the Family Division Sir Andrew McFarlane refused to discharge the injunctions. He conducted a balancing exercise between the parents’ Article 10 rights and the clinicians’ Article 8 rights, finding that the risk of harassment and abuse directed at clinicians, should they be named, justified maintaining the indefinite orders to protect their privacy and well-being.
• Court of Appeal Decision ([2023] EWCA Civ 331): The Court of Appeal overturned the President’s decision. It held that indefinite anonymity orders in such cases were controversial and a matter perhaps better suited for Parliament. It found that, after the conclusion of the proceedings, the parents’ Article 10 rights to tell their story outweighed the clinicians’ remaining Article 8 rights, especially given the speculative nature of future harassment by third parties. The injunctions were discharged, but this order was stayed pending the Trusts’ appeal.

The Supreme Court’s Decision

The Supreme Court unanimously dismissed the NHS Trusts’ appeal, thereby upholding the Court of Appeal’s decision to discharge the injunctions, but it did so based on different reasoning (see the Press Summary: here and the Full Judgment: here).

• Jurisdiction and Purpose of Injunctions: The Court confirmed the High Court does have jurisdiction (parens patriae – acting as the protective parent) to grant anonymity injunctions during proceedings concerning a child’s welfare. However, this power is grounded in protecting the child’s best interests. Protecting clinicians is permissible under this jurisdiction only insofar as it serves the child’s welfare (e.g., ensuring care isn’t disrupted by staff harassment).
• Duration of Injunctions: Crucially, the Court ruled that injunctions granted under the parens patriae jurisdiction should not be indefinite. Their justification is tied to the active proceedings concerning the child. Once those proceedings end (e.g., through the child’s death or a final court declaration), the parens patriae basis for the injunction largely falls away.
• “Cooling-Off” Period: The Court acknowledged that a limited “cooling-off” period might be justified immediately after proceedings end, allowing tensions to subside and clinicians to consider their options. However, this period must be strictly time-limited and proportionate.
• Protecting Clinicians Post-Proceedings: If clinicians seek anonymity after the parens patriae justification (and any cooling-off period) expires, they cannot rely on the NHS Trust to obtain it via the original children’s proceedings. Instead:
  • The clinicians must apply themselves (or via representatives) for an injunction based on their own rights (e.g., under Article 8 ECHR, protection from harassment).
  • This requires establishing a specific legal cause of action and involves a fresh balancing exercise directly between the clinicians’ Art 8 rights and the parents’ (or public’s) Art 10 rights.
• High Threshold for Post-Proceeding Injunctions: The Court stressed that restricting freedom of expression (Art 10) requires compelling justification. Evidence of a real, serious, and continuing threat to specific individuals would be needed. Generalised concerns about potential criticism or harassment are insufficient.
• Public Interest: The judgment highlighted the legitimate public interest in the operation of public hospitals and the treatment provided. It noted that medical staff in public hospitals are, to some extent, “public figures,” meaning the boundaries of acceptable criticism are wider than for purely private individuals.

Key Implications of the Decision

• End to Indefinite Anonymity via Child Proceedings: Clinicians involved in sensitive child treatment cases can no longer expect indefinite anonymity automatically flowing from orders made during the original “best interests” litigation.
• Shift in Onus: The burden shifts to individual clinicians to seek protection for their privacy rights after the proceedings conclude, based on specific threats or risks to them personally. NHS Trusts cannot simply seek extensions based on general concerns or the original parens patriae jurisdiction.
• Strengthened Freedom of Expression: The ruling strongly affirms the Article 10 rights of parents to speak about their experiences, including potentially criticising named individuals, once the direct court process concerning their child is finished, provided it doesn’t cross into unlawful harassment or defamation.
• Public Scrutiny: The decision reinforces the principle that treatment within the NHS is a matter of public interest and subject to public debate and scrutiny.
• Concerns Remain: While upholding freedom of expression, the ruling acknowledges the potential negative impact on clinicians facing public criticism or abuse. Medical bodies expressed concern that this might affect staff morale, well-being, and the ability to carry out difficult work without fear of unwarranted personal attacks. The practicalities of clinicians bringing individual applications for injunctions may also pose challenges.

Comment

The Supreme Court’s decision marks a significant development in the complex intersection of child welfare, medical ethics, freedom of expression, and personal privacy. It decisively limits the scope and duration of anonymity orders granted primarily under the court’s protective jurisdiction for children, preventing them from automatically extending indefinitely to shield clinicians after proceedings end. While affirming the vital importance of free speech and public scrutiny concerning NHS care, the decision necessitates a new approach where clinicians seeking ongoing protection must actively assert their own rights, subject to a high threshold and careful balancing against the fundamental right to freedom of expression.

About the Author

Called in 2010, Tom Collins is ranked in the Legal 500 as a specialist in Travel Law. He has considerable experience across a wide range of travel and private international law disputes and has advised claimants and defendants in multi-party actions.

When is a decision on a final appeal not final? Exceptionally.

In Clarke v. Poole [2025] EWCA Civ 447, the Court of Appeal granted an application under rule 52.30 of the Civil Procedure Rules, which contains a power to re-open a “final determination of any appeal”. The circumstances in which the Court of Appeal (or the High Court) may do so will arise only rarely.

Rule 52.30(1), based on the decision of an expanded panel of the Court of Appeal in Taylor v. Lawrence [2002] EWCA Civ 90, provides:

The Court of Appeal or the High Court will not reopen a final determination of any appeal unless—

(a) it is necessary to do so in order to avoid real injustice;

(b) the circumstances are exceptional and make it appropriate to reopen the appeal; and

(c) there is no alternative effective remedy.

In Clarke, the Claimant suffered life-changing injuries and impairments in a road traffic accident. Her claim was for over £22m, a large proportion of which related to future care and support.

The Defendants considered that the Claimant might have had pre-existing muscular dystrophy (“MD”) and contended that, if she did, the quantum of her claim would inevitably be reduced because of a reduced life expectancy and significant care requirements that would have arisen in any event.

Electromyographic neurophysiological (“EMG”) testing was available to determine whether the Claimant had MD, but the Claimant did not wish to undergo it. Her refusal pre-dated the accident and there was evidence (albeit in a letter from a treating doctor rather than an expert instructed in litigation) that “any pressure on the claimant to undergo such testing would be likely to have a detrimental impact on her mental health”.

At first instance, the judge considered the test in Laycock v. Lagoe [1997] PIQR 518 and, diverging somewhat from the commentary in the White Book, identified a three-stage test: (i) whether the interests of justice require the proposed test; (ii) if yes, whether the party opposing the test advances a substantial (“not imaginary or illusory”) reason for it not being undertaken; and (iii) where the balance falls between the proposer’s right to defend the litigation and the opposer’s right to personal liberty. The judge also considered Starr v. National Coal Board [1977] 1 WLR 64.

The judge granted the Defendant’s application and stayed the claim, holding that the physical risks of the test were “very modest”, that the Claimant’s anxiety could be reduced, that whilst discovering she had MD would have an adverse impact on her mental health equally she would “derive significant comfort” were the opposite to be shown, that it would not be just for the Claimant to be entitled to pursue her claim in full if the Defendants were deprived of the tests to identify the presence or absence of MD, and that a stay was the least restrictive order and “should not unduly pressurise” the Claimant.

The Claimant appealed, arguing that the “not imaginary or illusory” test had not been correctly applied, that Starr was distinguishable because it was about a Claimant declining to be examined by a particular named expert, and that the judge had incorrectly balanced the factors at the third stage of the test. In refusing permission to appeal, Nicola Davies LJ agreed with the first instance judge that the second stage of the Laycock test was not determinative and the third stage he identified was required. Further, she considered that he had balanced the factors adequately at the third stage.

Hearing the application under rule 52.30, the Court of Appeal cited passages from authorities on the rule, including Lawal v. Circle 33 Housing Trust [2014] EWCA Civ 1514, which emphasised that:

(i) “the jurisdiction [to re-open a final determination] can only be invoked where it is demonstrated that the integrity of the earlier litigation process has been critically undermined” (such that there is a “powerful probability that the decision in question would have been different” otherwise: Regina (on the application of Goring-on-Thames Parish Council) v. South Oxfordshire District Council [2018] EWCA Civ 860); and

(ii) “the broad principle is that, for an appeal to be re-opened, the injustice that would be perpetrated if the appeal is not reopened must be so grave as to overbear the pressing claim of finality in litigation”.

The Claimant’s complaint was that Nicola Davies LJ had misunderstood the nature of EMG testing by treating it as genetic testing rather than neurophysiological testing and, further, that she had thought the testing would involve the insertion of a needle into a muscle whereas in fact it would involve many needles being inserted into many muscles, including in the face, to measure electrical activity. The Claimant argued that the first instance judge had accepted the treating doctor’s evidence that “any pressure” on the Claimant to undergo the testing would adversely affect her mental health, with the result that the requirement to elect whether to have the testing, as opposed simply the testing itself (if undertaken), would cause psychological injury.

The Court of Appeal, with some reluctance (and some adverse comment on the skeleton argument that advanced the argument above), accepted that there had been an error in Nicola Davies LJ’s reasoning when considering the Claimant’s grounds of appeal. Failure to address all the grounds of appeal can justify re-opening a decision: Municipio de Mariana v. BHP Group plc [2021] EWCA Civ 1156. Underhill LJ considered that if Nicola Davies LJ’s attention had been properly focussed on the real nature of the Claimant’s challenge “she would in all probability” have come to the opposite conclusion. Exceptionality was established by the “very unusual combination of circumstances” including the severity of the Claimant’s injuries, the Defendants’ admission of liability, and the effect of the stay being that the Claimant was required to choose between undergoing testing to which she objected or losing millions of pounds in compensation.

Accordingly, the Court of Appeal granted the application under rule 52.30 and granted permission to appeal. In light of the decision after analysis of the reasoning above, permission was also granted on an additional ground concerning the relationship between Laycock and Starr, which is likely to be of assistance to practitioners considering applying for, or opposing, a stay for medical testing. The circumstances of this case were unusual, but the Court of Appeal’s decision serves as an illustration of a little-used provision that permits – admittedly only in the most unusual of cases – an appeal court to re-consider what was otherwise a final decision.

About the Author

William Dean has a busy personal injury practice involving both domestic and foreign accidents. He is a contributor to the Butterworths Personal Injury Litigation Service, in which he is the author of the “Foreign Accidents” section. He also acts in tribunal claims against the Criminal Injuries Compensation Authority, including in cases involving foreign jurisdictions, and is a contributor to the leading textbook in that field.

To Serve or Not to Serve? 

Many of our readers will be familiar with the frequent reported authorities in relation to mis-service of the Claim Form. Despite being pretty much the one procedural step that you absolutely cannot afford to get wrong, solicitors are still doing it. What’s worse, they are doing it, and then either not understanding what they’ve done or how to put it right. This can have all sorts of serious consequences, from losing the opportunity to pursue the claim at all, to having a wasted costs order made against you. And it applies to all sorts of claims at all different levels of court. It applies to cross-border claims too.

And so it was, on an unhappy day for the Claimant at Preston County Court, that DDJ Ikram set aside a claim form that had expired unserved and required the Claimant’s solicitors to show cause why they should not be personally responsible for paying the wasted costs of the action.

Clyde & Co was instructed in 2021 to represent Linea Directa Aseguradora S.A. (LDA) and its policyholder following a nasty motor incident on the M1. The incident itself involved multiple vehicles in a ‘concertina’ collision, with the claimant, represented by Sebastian Rowe Solicitors, alleging that LDA’s policyholder collided with the rear of his vehicle, shunting him into a collision with four other vehicles.

Proceedings were eventually served when a copy of the sealed claim form was hand delivered to Clyde & Co’s offices in London in 2024. However, it was obvious from the correspondence that Clyde & Co had never positively communicated that it was authorised to accept service. A party is not required to notify another of a mistake (Woodward v Phoenix Healthcare Distribution Limited [2019] EWCA Civ 985) but Clyde & Co notified Sebastian Rowe the very same day that it was not instructed to accept service of the Claim Form.

No further steps were taken to serve the claim form properly on LDA in Spain, and no application was made for service to take place by alternative means. In fact, until the day of the hearing of the Defendant’s application to strike out the claim, Sebastian Rowe asserted that Clyde & Co were  the “nominated” solicitors, and they had accepted service. They opposed the application, asserting that it was contrary to the overriding objective and that not only should the application be dismissed, but that the Claimant should have their costs on the indemnity basis.

This did not go well for them.

By way of a skeleton argument served at 11.45 on the day of the hearing (and no doubt after aghast Counsel had had the opportunity to consider the situation) the concession was made that there had been improper service. An application under CPR r6.15 was made in the face of the Court (which is permissible) but was unsupported by evidence. DDJ Ikram decided not to entertain it.

For more on this, please see Thomas Byrne of Clyde & Co’s informative article “Are you being served?” https://www.clydeco.com/en/insights/2025/04/are-you-being-served.

Francesca O’Neill, instructed by Thomas Byrne of Clyde & Co, acted for the successful defendant in this case

About the Author

Francesca O’Neill specialises in technical procedural applications of this sort (someone has to) and has recently had notable success on this topic (see for example Chehaib v Kings College Hospital NHS Foundation Trust and others [2024] EWHC 2 (KB) (setting aside a Claim Form in a multi-million pound clinical negligence claim), Harper v Bamber (I) and Lewis (II) [2024] Unrep’d (where the Claim Form was set aside on appeal and a wasted costs order made), and Butler v Ward [2025] EWHC 877 (KB) (where £2.5million of a Schedule of Costs was struck out).