[2025] EWCA Civ 1126

This appeal raises important issues as to the jurisdictional foundation for the principle of open justice and derogations from that principle. The context is the grant of anonymisation orders and reporting restriction orders in clinical negligence cases brought by children and protected parties and in proceedings brought to seek the court’s approval of settlements in such cases.

The terminology for the orders sought in these cases has not always been clear. I shall use the terms in the following fashion: An order sought within court proceedings to withhold or anonymise the names of a party or a witness, including withholding information that would identify that person, will be referred to as a withholding order (WO). An order sought within court proceedings which has the effect of restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of court documents will be referred to as a reporting restrictions order (RRO). An order made within court proceedings which has the effect of both withholding or anonymising the names of a party or a witness and restricting the reporting of material disclosed during those proceedings whether in open court or by the public availability of documents will be referred to as an anonymity order (AO).

Mr Justice Nicklin (the judge) refused the AO sought by the claimant on the basis that there was no statutory foundation for making an RRO in the absence of a WO (see section 11 of the Contempt of Court Act 1981 (section 11)), and that the evidence did not support a WO being made in this case, because material concerning the claimant and his claim was already in the public domain. Derogation from the principle of open justice was not, according to the judge, necessary in this case.

The judge reached the following two important conclusions that were questioned on the appeal.

First, the judge concluded, in essence, at [52] and [106] that he should follow the dictum of Lord Sumption at [18] in Khuja v. Times Newspapers Limited [2017] UKSC 44, [2019] AC 161 (Khuja) to the effect that: “[t]he 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”. He followed Khuja in preference to following Lord Reed’s view expressed in several places in A v. British Broadcasting Corporation[2014] UKSC 25, [2015] AC 588 (A v. BBC) at [32]-[41], [55], [57], [59] and [75], to the effect that there was a common law power in the court to derogate from the open justice principle where it was in the interests of justice to do so.

Secondly, the judge held at [94]-[112] that he should not follow parts of the Court of Appeal’s decision in JX MX v. Dartford and Gravesham NHS Trust[2015] EWCA Civ 96, [2015] 1 WLR 3647 (Dartford), because (a) Dartford had not identified the jurisdiction to make an RRO ([105]-[107]), (b) several passages in Dartford were not consistent or conflicted with the “very clearly established principles of open justice” ([109]-[110] and [113]), and (c) Dartford did not deal with the situation (which arises in this case) of an application for an AO after the name of the claimant had already been publicised ([114]). Dartford set out the process that was to be followed where an AO was sought in the context of an application for the court to approve compromise of a claim by a child or a protected party under CPR Part 21.10. It may be noted at this stage that the decision in Dartford was later reflected in form PF10, which was approved by the Civil Procedure Rule Committee for use in relation to applications for AOs in connection with approval applications under CPR Part 21.10. Part 4(2) of the CPR provides that such forms “must be used in the cases to which they apply”.

The claimant appeals the judge’s approach to all these points. The defendant Health Authority is neutral on the appeal. The Official Solicitor supports the appeal, and the Personal Injuries Bar Association supports aspects of the claimant’s case. The BBC supported most aspects of the judge’s judgment. We are much indebted to the Advocate to the Court, who has very helpfully filled in some important historical background.

In outline, I have determined the jurisdictional questions as follows. The authorities demonstrate that there is a limited common law power 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. This kind of RRO takes effect as an order preventing publication of specified material disclosed during proceedings whether in open court or in documents placed before the court. It is not, however, in the same category as an equitable injunction granted against the world, generally in relation to matters occurring outside court proceedings, preventing the identification of people or information, and now founded on section 37 of the Senior Courts Act 1981. Section 11 was enacted because there was uncertainty about the common law power to grant an RRO. Its enactment did not, however, resolve that common law question in itself. It simply established that RROs may be granted in the specific cases to which the restricted terms of section 11 apply.

Secondly, I have determined that, in large part, Dartford remains good law, and is binding on us. But Dartford dealt only with AOs made in approval applications under CPR Part 21.10, which is not this case. It was, however, a case where proceedings had been started before the application for approval was made. The same principles apply, as explained below, to applications for AOs in personal injury actions brought by children or protected parties.

Thirdly, I would respectfully disagree with the dictum of Lord Judge CJ at [14] in In Re Press Association [2012] EWCA Crim 2434, [2013] 1 WLR 1979 (Press Association) to the effect 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 see no reason, as a matter of jurisdiction, why an AO should not be made, relying on either the common law power or section 11, even if a WO was not made at the beginning of the proceedings.

Fourthly, I have decided that in this case, which is an application for an AO in a personal injury claim brought by a severely injured child through their litigation friend, the judge was wrong to refuse that AO. The terms of the AO can, however, only be prospective, not retrospective, because of the previous publicity that the case has attracted.

I shall deal in this judgment with the following matters in the following order.

I will be forgiven, I hope, if I do not refer to every argument advanced by every one of the interveners. As it seems to me, once properly understood, this is not quite as difficult a case as it first appeared. That is, perhaps, evidenced by the considerable measure of common ground that was finally achieved between the parties and the interveners. The case is, however, important, and I hope that this judgment will bring much-needed clarity.