[2025] EWCA Civ 1126

Applying the principles that I have explained, I have reached the clear conclusion that an AO drafted in prospective terms (though not exactly in the form suggested as the claimant’s fallback alternative order, and not as originally sought from the judge) is strictly necessary in this case in the interests of justice. It will be noted that a 10-day quantum trial is fixed to take place imminently in December 2025. The claim may settle before the trial. If that happens, an approval hearing under CPR Part 21.10 will be required. If it goes to trial, private details about the claimant and his family will inevitably be mentioned in open court. Either way, documents will be filed at court containing private information which will, without protection, be open to public inspection. The prospective AO will not prevent the media reporting on the matters of public interest arising in the litigation, such as the events that led to the claimant’s injuries and the conduct of the hospital in dealing with them.Nor will the order prevent reporting of the amount of any damages agreed or awarded. Instead, it will prevent the claimant and his family from being further identified in the media as the claimant in the case.

As I have said, the fact that there has been previous publicity does not disqualify an application of this kind, any more than it would disqualify an AO being made at an approval hearing under CPR Part 21.10. Previous media coverage may, however, be a pointer against making an AO or towards making only a forward-looking RRO. The original order sought from the judge is neither necessary nor appropriate in the light of the existing media coverage in which the claimant’s representatives participated. The main features making it strictly necessary here to make a prospective WO and an RRO, in the interests of justice, are (i) the extreme vulnerability of the claimant, and (ii) the serious infringement upon the claimant’s private and family life in relation to medical details, family circumstances and financial matters that this litigation will involve, if the details were reported in the media alongside the claimant’s name. This is a very serious case. It is one where an AO is, as I have said, clearly and strictly necessary. All the factors I have mentioned are present here in high degree and in combination. It should not be assumed that a derogation from the open justice principle will be held to be strictly necessary in a case where the evidence did not cover all these factors and was less compelling. Again, as I have said, each case will need to be considered on its own facts.

I have had regard to the confidential material in the papers that we have been shown to satisfy myself of the details of the features I have mentioned in the last paragraph. I do not think it is necessary or helpful either to elaborate on the details in this open judgment or to deliver an additional private judgment, since no party has contested the grant of an AO on the facts.

A prospective AO will not totally prevent the possibility of jigsaw identification, since there are already several media articles in the public domain, but, in my judgment (as in cases like PJS), that is not a reason to refuse the claimant a modicum of protection at this crucial stage of his personal injury claim.

I would invite submissions from counsel as to the precise form of order that is appropriate in the light of the guidance provided in this judgment. I would caution, though, that the fallback order sought (see [23] above) is, in my view, drafted in unnecessarily broad terms. Without attempting any drafting, an appropriate prospective AO: (i) should, in the WO part, identify precisely the material that has, after the date of the order, to be withheld from the public: for example, the name and address of the claimant, his litigation friend, and other specified immediate family members, and other material obtained from the proceedings that would be likely to lead to the identification of those persons as connected to the proceedings, (ii) should, in the RRO part, prohibit reports, after the date of the order, of or concerning the proceedings which include any information which is the subject of the WO. The AO to be made in this case must contain a proviso that makes clear that existing media coverage of the proceedings are not covered by the order. It is undesirable to put provisions that are critical to the effectiveness of an AO in the recitals.

Finally, I do not understand that there is any continuing attempt to anonymise the name of the defendant hospital board. I would, therefore, amend the title of this judgment to show its full name.