Anonymity Orders: a review of PMC v A Local Health Board [2024] EWHC 2969 (KB)

In PMC v A Local Health Board, the High Court undertook a detailed review of the key principles involved in applications for anonymity orders, and has provided useful guidance on preparing draft anonymity orders. This decision is subject to appeal but the underlying principle was considered and approved by the Court of Appeal in Tickle v BBC [2025] EWCA Civ 42.

Background

The Claimant was born at the Defendant’s hospital in 2012. Shortly after his birth, he suffered an intraventricular haemorrhage (IVH). He claimed that as a result of the IVH he developed cerebral palsy. The Defendant admitted liability for negligence in C’s care, and accepted that, but for the breach of duty of care to C and his mother at and around the time of his birth, the IVH would likely have been avoided.

In November 2024, C made an urgent application for an anonymity order, on the grounds that C was a child, represented by his mother and litigation friend, and that he was unlikely to have capacity to conduct proceedings or manage his financial affairs on reaching adulthood. It was argued that C had a right to protect his private and family life pursuant to Article 8 of the European Convention on Human Rights (ECHR).

C’s case had previously appeared in several press articles, some discussing his injuries, difficulties and support received, and others connecting his experiences to a wider story about the concerns around maternity care at the Defendant’s hospital. Though the litigation had not been discussed in any of these publications, C was an identifiable, prominent feature in them.

The principle of open justice and balancing Convention rights

Nicklin J emphasised that the starting point for all proceedings is that the administration of justice takes place in open court, and that the public has the right to attend – and, linked with that, the right to report on cases. This includes the general rule that the names of the parties will be made available for public reporting. The Court is not concerned with assessing the value of any particular piece of information (such as the applicant’s name) to the case or the public interest.

Any anonymity order inherently interferes with the rights of the general public to freedom of expression under Article 10 of the ECHR. As C’s application was brought in large part on the basis of protecting his Article 8 rights, the Court was tasked with determining how to balance these competing rights. Though no one right has a precedence over the other per se, Nicklin J was clear, in reliance on Lord Steyn’s judgment in In re S [2004] UKHL 47, that the Court must attach significant weight to the principle of open justice, and any derogation from the principle can only arise in exceptional circumstances, based on necessity. Whether the test of necessity is met should be determined by a close analysis of the specific facts of the case.

Anonymity orders: the importance of a statutory basis

Anonymity orders are comprised of two parts: withholding orders, and reporting restrictions. A withholding order merely means that withheld names cannot be discovered as a result of the proceedings – names are usually replaced by a 3-letter cipher. If the identity of the relevant person is known, or discoverable, by other means, the withholding order on its own does not prevent publication of that information. Consequently, the Court must often make a reporting restriction order at the same time.

Unlike withholding orders, the power to grant reporting restriction orders does not arise from an inherent common law power and must therefore be found in legislation (per Khuja v Times Newspapers Limited [2017] UKSC 49 at [18]). Nicklin J discussed a number of potential sources of such a statutory power, but noted that not all are available to all courts or all cases. In the instant case, the Court focused on s.11 Contempt of Court Act 1981 and s.39 Children & Young Persons Act 1933.

S.11 Contempt of Court Act reads: “In 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, 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.” [Emphasis added.] Where s.11 is relied upon, therefore, a withholding order must already be in place. That was not the case in this application.

S.39 Children & Young Persons Act 1933 provides that publication of names and other identifying information of children may be prohibited. However, any restriction under this section automatically expires once the child reaches the age of 18. Once satisfied that the Court had the power to make the reporting restriction under s.39, in deciding whether or not to do so Nicklin J considered the issues of necessity and proportionality.

The decision

Nicklin J, therefore, weighed the factors in favour of granting anonymity against those which militated against the order. He acknowledged that C was a child, lacking capacity, and noted how in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 the Court recognised derogations from the open justice principle may be necessary to protect children’s interest. However, he did not consider that C had shown he was “vulnerable to exploitation” as alleged, observing that C’s property and affairs had been, and would continue to be, managed by a Professional Deputy appointed by the Court of Protection. Though the proceedings naturally involve private medical information, the volume of pre-existing publications in which C appeared, some of which extensively commented on his condition and experiences, significantly undermined the weight to be attached to this, as such private medical information was already in the public domain. This would render any anonymity order largely ineffective. Instead, he noted that concerns about revealing private information could be met by alternative means, namely targeted orders preventing details about C’s particular disability being communicated in future open court hearings. Anonymising C at this stage, however, was a disproportionate interference with the Article 10 rights of the media, legal reporting platforms, and the public at large.

Accordingly, he distinguished JX MX, noting that it did not deal expressly with the issue of the need for a statutory basis for a reporting restriction, but proceeded on the assumption that such jurisdiction was available without identifying it. He identified what he saw as a number of problems with the decision and its approach to derogations from the open justice principle in cases involving children, and preferred the approach of the House of Lords in In re S and the Supreme Court in Khuja.

Conclusion – practice points for practitioners

This decision demonstrates anonymity orders are likely to be granted only where there is real necessity. It reinforces the primacy of open justice, the need for close scrutiny of the facts of the case and a careful weighing up of the factors in favour of and against derogations from the principle.

There must be a clear statutory basis for granting a reporting restriction, a necessary part of an anonymity order. Which statute is most suitable will be case- and court-specific, but s.11 Contempt of Court Act 1981 and/or s.39 Children and Young Persons Act 1933 are of clear value in many instances.

If a claimant is likely to seek anonymity, particularly where they are a child or otherwise vulnerable person, it is vital that this is sought early – before names are published in open court. In ideal circumstances, the information sought to be withheld will not have been already disseminated in lawful publications, as this is likely to militate against making what would be a less effective anonymity order.

With very significant weight placed on the principle of open justice, the Court appears to be indicating a greater hesitancy to grant anonymity orders. JX MX may be of greater influence in applications for anonymity in approval hearings following a settlement – where the case has not otherwise been heard extensively in open court – but its authority in relation to general proceedings seems to have been limited in this decision.

Though not strictly necessary, the anonymity application having been refused, Nicklin J also commented on the drafting of anonymity orders, opining that the complex, fact-specific nature of withholding orders and reporting restrictions means anonymity orders do not comfortably conform to a standard form order. A draft order should accurately record the statutory basis on which the reporting restriction is granted. Going forward, practitioners are likely to be assisted more by examples of withholding orders and reporting restrictions made under s.11, included within the Administrative Court Guide 2024, than by a standard form template draft order.

There is an appeal of this decision pending – so watch this space. Interestingly, however, the underlying principle of a presumption in favour of open justice was approved by the Court of Appeal in Tickle v BBC [2025] EWCA Civ 42, see para 49 (Sir Geoffrey Vos, Master of the Rolls):

49. Finally, in this connection, I would record and approve what Nicklin J said in PMC , where he refused an application for the anonymity of a child claimant to a clinical negligence claim. I have already mentioned that the judge said he disagreed with a part of the dictum. Nicklin J said this at [41]: “Whilst, in a very broad sense, in assessing the engaged convention rights on any application for a derogation from open justice, the Court is carrying out a ‘balance’ between them, the scales do not start evenly balanced. The Court must start from the position that very substantial weight must be accorded to open justice. Any 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. That is not to give a presumptive priority to Article 10 (or open justice), it is simply a recognition of the context in which the Re S ‘balance’ is being carried out”.

 

Analysis and review produced by Katriona King who is a Pupil at Farrar’s Building. Katriona accepts instructions in all of Chambers’ practice areas.  For further information, please contact her Clerking Team.

 

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