[2025] EWCA Civ 1126

This summary of the factual background is largely taken from [3]-[25] of the judge’s judgment.

The claimant was born in 2012 at one of the defendant’s hospitals. He is now 13. After his birth, he developed a large intraventricular haemorrhage as a result of asphyxia prior to birth and during labour. The haemorrhage led to cerebral palsy. The claimant is profoundly damaged and reliant on others for his care and day to day needs.

A letter claiming damages was sent in October 2013. In 2016, liability for negligence in the care of the claimant and his mother was admitted. It was also admitted, that, but for such negligence, the claimant would not have developed the haemorrhage. The defendant made large interim payments, even before the claim form (issued through his mother as litigation friend) for more than £10 million in damages was issued in March 2023. The interim payments have been managed by a professional property and affairs deputy appointed by the Court of Protection. A liability judgment was entered by consent in November 2023. Directions have been made by consent for a trial of quantum fixed for 10 days in December 2025. There have, thus far, been no substantive court hearings in the claim.

In November 2024, the claimant issued an application for an AO in the standard form of PF10, on the basis that: (a) he was unlikely to have capacity to conduct proceedings or manage his affairs on reaching adulthood, and (b) publication of the circumstances giving rise to the claim, the interim payments and any ultimate settlement sum would be unjust and would infringe his article 8 rights.

The evidence in support of the application for an AO explained that there had already been (at least) two media articles about the claimant’s case published in 2020 and 2021, which arose from his mother’s engagement with a media outlet (the media organisation). The media coverage commented on the claimant’s injuries, his difficulties, how well he was doing in the circumstances, and the support that the family said it had received, without mentioning this litigation. The mother said she did not wish to engage further with the media. The evidence stated that the claimant was vulnerable to exploitation.

The claimant’s application for an AO sought immediate without notice interim relief, which the judge refused on the basis of section 12 of the Human Rights Act 1998 and the rights of the media under article 10 of the European Convention on Human Rights (the ECHR). Instead, he ordered: (a) an urgent substantive hearing of the request for an AO, (b) service of the existing evidence on the media organisation, and (c) the claimant to file further evidence about media coverage and any open court hearings that had occurred. That further evidence identified more media coverage from the media organisation and others expressing concern about the standard of maternity care at the defendant’s hospitals. The claimant’s solicitor had given a media interview referring to compensation payments in negligence claims that could run into substantial sums for the cost of ongoing care. The leader of the local council was reported as saying that it was a scandal that nobody from the defendant’s hospital had been held accountable for the failings in the defendant’s maternity services. The judge said this at [23] about the coverage identified:

The media organisation did not oppose an order that protected the identity of the claimant and his family, but did object, on public interest grounds, to an order preventing reporting of the name of the hospital in future phases of the litigation or any ultimate settlement in the claim.

The order sought before the judge was substantively to the following effect: (i) the identity of the claimant as a party to the proceedings was confidential and was not to be published, (ii) under CPR Part 39.2(4), the name or address of the claimant, the claimant’s Litigation Friend or other immediate family members, or details that could lead to the claimant’s identification were not to be disclosed in any media report, and (iii) under CPR Parts 5.4C and 5.4D, non-parties could not obtain copies of non-anonymised statements of case, judgments or orders from the Court records.

The judge heard the application on 6 November 2024 and delivered his 45-page judgment on 24 November 2024.

The claimant sought two alternative orders before us. The first was the same as that sought from the judge and summarised at [21] above. The alternative (fallback) was different in that the prohibition on disclosing identification details of the claimant, his Litigation Friend or other immediate family members in any media report was qualified by the words “from the date of this order”. Mr Robert Weir KC, leading counsel for the claimant, submitted that these words had been inserted in his fallback order to make clear that the AO sought was prospective rather than retrospective. In other words, the media were not to be required to remove previous articles about the claimant from their websites or the internet more generally.