[2025] EWCA Civ 1126

As I have said, I shall divide this section of my judgment into three: (i) the power to make an RRO, (ii) the meaning and effect of section 11, (iii) the application of Dartford to AOs made in personal injury actions brought by children and protected parties.

It will already be clear, in my judgment, that the law in this area has moved on considerably in the first 25 years of this century. Lord Reed made clear at [40] in A v. BBC that the common law was capable of development, and that the application of the principle of open justice could change in response to changes in society and in the administration of justice. Lord Sumption in Khuja at [15] pointed to the changes brought about by developments in relation to national security and the ECHR. Lord Reed explained at [7] in Abbasi SC that the Supreme Court had conducted a fundamental review of the court’s power to grant injunctive relief in Wolverhampton.

Against this background, we have to decide whether the judge was right at [52], [96], [106] and [117] to follow Lord Sumption’s statement at [18] in Khuja that “the inherent power of the court at common law to sit in private or anonymise material deployed in open court has never extended to imposing reporting restrictions on what happens in open court”. Lord Sumption had previously referred to the distinction drawn by Lord Diplock at 450 in The Leveller Magazine between proceedings being held in public and doing nothing to discourage fair and accurate reporting of such proceedings.

In my judgment, there are three reasons why the judge was wrong to prefer the dictum in Khuja to other authority.

First, Khuja was not a case like this. It was a case where material concerning Khuja had already been deployed in the open court trial before an application was made for the order (despite the limited general protection of postponement of publication under section 4(2)). What is sought here is, first, a WO allowing the claimant to be anonymised in these proceedings, and, secondly, an order preventing reporting of material that will mostly not be referred to in open court in the future, because of that WO. Even if the order sought prevents material that may be referred to in open court in the future being published, it is not in the same category of case as was being dealt with in Khuja. This case involves a classic situation in which the court is being asked to protect the integrity of its own process in the interests of justice.

Secondly, it is clear from Scott v. Scott, A v. BBC, Wolverhampton and Abbasi SC (acknowledging that Abbasi SC came after the judge’s decision) and other authorities that there is an inherent power in the court derived from the common law to derogate from the principle of open justice in civil or family court proceedings by making, within court proceedings, both a WO and an RRO, where such an order is strictly necessary in the interests of justice.

In Scott v. Scott, the overriding principle was that cases had to be heard in public unless there was a strict necessity to depart from that rule. As Earl Loreburn put the matter at 446 in relation to excluding the public from proceedings where they would otherwise be rendered impracticable: “It would be impossible to enumerate or anticipate all possible contingencies”.

In A v. BBC, Lord Reed made clear at [38] that it had long been recognised that the courts had the power to permit the identity of a party or a witness to be withheld from public disclosure where that is necessary in the interests of justice (a WO). The court could also take steps in current proceedings in order to ensure that the interests of justice would not be defeated in the future. At [40], Lord Reed acknowledged (by reference to Earl Loreburn in Scott v. Scott at 446) that examples went beyond the categories envisaged in the older authorities. The application of the principle of open justice had to change to respond to changes in society and in the administration of justice. It was in the interests of justice to protect a party from the painful disclosure of personal information about her where there was no public interest in its being publicised. The court had to evaluate the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.

In Wolverhampton, Lord Reed said expressly at [34] that RROs were examples of orders granted by courts restraining conduct by the world at large, made under common law powers (or under statutory powers). RROs, said Lord Reed, generally prohibit the publication of information about the proceedings in which they are made. These statements are clear as to the common law power to derogate from the open justice principle by granting an RRO.

In Abbasi, the Supreme Court confirmed at [58]-[61] that the High Court had jurisdiction to grant injunctions protecting the identities of clinicians so long as that was necessary to protect the interests under the court’s parens patriae jurisdiction and under its inherent jurisdiction to protect the administration of justice. Abbasi confirmed Wolverhampton.

Thirdly, there are clear indications in the authorities that the common law power to derogate from the open justice principle in the course of proceedings can be deployed to protect the interests of vulnerable parties. I have already referred to Lord Reed’s formulation at [41] of A v. BBC, where he said that it would be in the interests of justice to protect a party to proceedings from the painful disclosure of personal information about her where there was no public interest in its being publicised, and referred to the court needing to consider “any risk of harm which … disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others”. CPR Part 39.1(4) reflects that power by providing that the court “must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of any person”.

Moreover, it is now clear from the authorities I have cited that there is a clear distinction to be drawn between the common law power to derogate from the open justice principle in the context of court proceedings and the equitable power to grant an injunction restricting publication of material outside court proceedings against all the world (as in Abbasi). The balancing of article 8 and article 10 rights is now to be undertaken in accordance with the structured approach explained in Abbasi SC (see [75] above). Open justice remains a cardinal principle. The provisions of article 10 concerning freedom of expression remain crucial, but Abbasi requires a domestic law starting point.

In the latter context, it is worth making two further points.

First, in Tickle v. BBC[2025] EWCA Civ 42, [2025] 2 WLR 714, at [49], I approved what the judge had said in this case at [41] about open justice. Even though what he said needs to be adjusted insofar as it refers to Re S for the reasons I have given, I would endorse this formulation in relation to the assessment of a derogation from the common law principle of open justice: The Court must start from the position that very substantial weight must be accorded to open justice. The balance starts with a very clear presumption in favour of open justice unless and until that is displaced and outweighed by a sufficiently countervailing justification.

Secondly, in Re HMP[2025] EWCA Civ 824, the Lady Chief Justice, King and Warby LJJ emphasised the purpose of the open justice principle. At [22] the Lady Chief Justice made clear that the open justice principle did not extend to “affording third parties access to such information for reasons unconnected with examining the work of the courts and tribunals and the judges who sit in them”. This provided important up-to-date context to my analysis of the basis for granting AOs within court proceedings.

I repeat the terms of section 11 for ease of reference. The heading is important since it emphasises that section 11 is about “[p]ublication of matters exempted from disclosure in court” (emphasis added).

The pre-condition to section 11’s application is: “[i]n any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court”. That pre-condition makes clear that the court must (i) have power to make a WO, and (ii) actually make a WO, in proceedings before the court.

Once the pre-condition is satisfied, section 11 says that: “the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld”. This is quite a limited power because it only allows RROs to be made under it where it is “necessary for the purpose for which [the name or other matter] was … withheld”. The WO and the RRO need, therefore, to go hand-in-hand. There needs, obviously, to be a common law power to make a WO in the first place (something pointed out by the judge at [48], who referred to Khuja at [16] in that regard).

The next question is whether section 11 requires the WO to have been made at the start of the proceedings. It will be recalled that Lord Judge CJ said obiter at [14] Press Association (see [41] above) that it was a “pre-condition to the making of the order on the basis of section 11 that the name of the defendant should have been withheld throughout the proceedings”. I cannot see anything in section 11 that mandates that view. It is true that the court has first to have had the power to make and has to have actually made a WO, but I cannot see why that WO is required to be made at the beginning of the proceedings. If it were the case, it would be unclear what “throughout the proceedings” should be taken to mean. The issue as to whether pre-existing publicity might lead to an AO being denied is a separate one that I will deal with under the next two headings.

As I said in adjourning this appeal on 25 February 2025 ([2025] EWCA Civ 176), first instance judges remained bound by the decision in Dartford until that decision was either departed from by the Court of Appeal or overruled by the Supreme Court. We have now heard detailed argument about Dartford. As it seems to me, there are three issues: (i) whether the judge was right to criticise Dartford in the ways that he did, (ii) whether the guidance given in Dartford is applicable to applications for anonymity made by children and protected parties in personal injury claims, and (iii) the process to be followed where applications like this are made in the future.

It will already be apparent that I think that, in granting the AO in Dartford, Moore-Bick LJ correctly identified the essentially protective nature of approval hearings under CPR Part 21.10, similar to, if not an aspect of, the parens patriae jurisdiction exercised on behalf of the Crown. Insofar as the judge treated applications under CPR Part 21.10 to approve a child’s settlement as identical to other applications for anonymity, he was, in my judgment, wrong. Quite different factors apply when the court is exercising a protective jurisdiction as the authorities I have mentioned make clear. That said, even the exercise of a protective jurisdiction of this kind does involve a derogation from the principle of open justice and requires to be treated as such.

The first thing that I would respectfully suggest should be changed about Moore-Bick LJ’s guidance is the suggestion [at 35(i)] that the application for an AO at an approval hearing should be listed under the name of the child or protected party. It seems to me that it would be better to avoid publicity being given to the name before the application for an AO is determined. The application can and should be listed either as “an application under CPR Part 21.10” (or similar formulation) or by reference to a three-letter pseudonym suggested in the application. The latter course has the advantage of giving the case a nearly unique identity. By listing the case anonymously, the name and identifying details of the claimant would not be mentioned in open court unless the application was dismissed. I entirely accept that the application under CPR Part 21.10 itself should be heard in open court.

Secondly, I would be inclined to clarify the process suggested by Moore-Bick LJ. The judge suggested that Moore-Bick LJ was introducing an inappropriate presumptive priority for anonymity over open justice and reversing the burden of proof. I think he was doing no such thing. What he was doing, however, was seeking to introduce a simple and effective way of resolving the many applications for anonymity that are made in the context of approval applications under CPR Part 21.10. Moore-Bick LJ said at [34] that the court should normally make an AO in favour of the claimant without the need for any formal application, and that the press should file and serve on the claimant a statement setting out the nature of its case if it wanted to oppose such an order. Moore-Bick LJ was not saying that the applicant did not have to apply for an order, or that the order sought would be made automatically. He had already made it clear at [17] and [27] of his judgment that any derogation from the open justice principle had to be justified on grounds of strict necessity. What Moore-Bick LJ was trying to do, I think, was to streamline the process for cases where it was likely that the court would consider such a derogation strictly necessary.

Thirdly, the evidence that needs to be adduced in support of an application for an AO in an approval context depends, in my view, on the case. The essential circumstances of the case must, of course, be set out in the evidence. There are no presumptions about the outcome of the application and no special rules exempting the applicant from producing the best available evidence in support of the application. The circumstances of the case may be sufficient to make it clear where the balance lies, and the minimum steps that are strictly necessary to protect the claimant in the interests of justice. I do not think, however, that the evidence needs to speculate as to future specific risks to the claimant. As Lords Reed and Briggs said at [138] in Abbasi SC, the fact that the risks to the party in question lay entirely in the future might mean that there would have to be reliance on generic evidence based on the adverse effects of publicity in earlier comparable cases (see [77] above). I do not think that Moore-Bick LJ was encouraging the determination of these applications on the basis of rival generalities as the judge suggested.

With the exception, therefore, of [35(i)] of Dartford (concerning the listing of the application – see [99] above), I endorse the guidance in that paragraph. I agree that, in a case where the parties are aware that the media or other non-parties have published information about the case or have shown a specific interest in doing so, those non-parties ought to be notified of the court’s consideration of the application so they can be heard if they wish. Where the media are present at an approval hearing, they should be afforded an opportunity to be heard on anonymity questions (see [35(iv] in Dartford).I cannot, however, see why, in cases where no third party is known to have an existing interest in the case, the media needs to be notified in advance of an anonymity application being made. The media will become aware immediately after an AO is made because of the provisions of CPR Part 39.1(5) requiring a copy of the court’s order to be published on the Judiciary’s website (see [39] above). The media can then apply speedily, if they wish, to set aside the AO.

It needs to be clearly understood, as I have said, that an application for an AO in a personal injury claim by a child or protected party is made under the inherent common law jurisdiction of the court to protect the integrity of its proceedings in the interests of justice. It is not made under either the parens patriae protective jurisdiction or under an essentially protective Court process. Nor will it normally be necessary to invoke the equitable jurisdiction of the court or section 37 of the Senior Courts Act 1981. It will be possible, in cases to which section 11 applies, to rely also on that section. Despite what I have said about jurisdiction, children and protected party claimants are generally vulnerable and are persons whom the court should look to protect.

The judge was particularly concerned about either a WO or an RRO being made after the name of the claimant was in the public domain (see [55]-[59] of his judgment, relying on Khuja at [34(1)]). I do not think that the fact that there has been previous publicity is an automatic bar to the making of either a WO or an RRO in these types of case. It is, of course, an important factor for the court to take into account. The circumstances of previous publicity will vary greatly. It is impossible and undesirable to lay down a general rule. Lord Mance explained at [1]-[3] in PJS v. News Group Newspapers Ltd[2016] UKSC 26, [2016] AC 1081 (PJS), albeit in a different context, that injunctions restraining publicity could be made, even in the face of significant existing press and social media attention. Khuja was a very different kind of case.

In this case, the fallback order that is now sought (as explained at [21] and [23] above) is forward-looking and does not seek to require media organisations to remove material that has already been published about this case. In my view, it is right to say that, in this type of case, anonymising the name of a claimant and restricting publication of their name and identifying material is generally likely to be a more desirable derogation from the open justice principle than holding the proceedings in private. Again, though, it is undesirable to generalise too much. All these cases and any strictly necessary derogation from the open justice principle that may be appropriate in them will be entirely dependent on their particular facts. It is worth mentioning, however, that those making applications for an AO would be well advised to do so as early as reasonably practicable in the litigation process.

Subject, therefore, to a clear understanding of the different jurisdictional foundation for the application in this case, and subject to the caveats to Dartford that I have suggested at [97]-[100], I do think that the guidance in that case is broadly applicable in cases where an application for a WO is made (with or without an RRO) in a personal injury claim by a child or protected party under the inherent common law jurisdiction of the court to protect the integrity of its proceedings in the interests of justice.

I have sought to explain above how the jurisdictional foundation to AOs operates in relation to both approval applications and to personal injury claims brought by children and protected parties. Whilst I have made clear that the judge went wrong in rejecting the common law power to grant an RRO and in doubting the Court of Appeal’s decision in Dartford, the judge was right to emphasise the critical importance of the common law principle of open justice and its applicability in both the situations under discussion in this case. He was also right to make clear that the principle of open justice, even in these situations, should only be departed from where it is strictly necessary to do soin the interests of justice.

The starting point for the process that should be followed, accepting the guidance from Dartford, is to be found, I think in [38]-[41] of Lord Reed’s judgment in A v. BBC (see [46] above). In those passages, Lord Reed made the following important points about the process: