Anonymity breakthrough in personal injury claims

Topics: Personal injury & clinical negligence,Media, entertainment and sport,Courts business

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Children and protected parties in medical negligence and personal injury cases should not be publicly named unless anonymity is either unnecessary or inappropriate, the Court of Appeal ruled today.

Giving judgment in JX MX v Dartford & Gravesham NHS Trust [2013] EWHC 3956 the court reversed the current default position, under which claimants seeking anonymity must formally apply for it. 

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The decision relates to approval hearings for damages awarded to children or people lacking mental capacity. These account for some of the highest value awards made by courts to individuals, yet are held in open court, creating the risk of subsequent harassment. 

Until today’s judgment, claimants had to apply formally for anonymity and provide the Press Association news agency with a copy of any submissions. Judges would require the claimant to provide good reasons as to why they should not be named. 

However in JX MX the Court of Appeal found that there was ‘force in the argument that in the pursuit of open justice the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy’.

The public interest ‘may usually be served without the need for disclosure of the claimant’s identity’, the court ruled. 

Mark Bowman, medical negligence and personal injury partner at European firm Fieldfisher, which represented JX MX at the appeal on a pro bono basis, described the ruling as ‘a landmark decision’. He said the effect would be to put children and protected parties on an equal footing with claimants who are capable of consenting to confidential settlements out of court. 

Fieldfisher said that anonymity will now be afforded to claimants as a matter of routine practice unless for some reason the court is satisfied it is not necessary or inappropriate to do so. Such circumstances appear to be very few and far between and the burden is now placed on the press to provide reasons why anonymity should not be granted.

'It is fantastic to know that as a result of our appeal that not only my client but claimants all over the country will now be able to pursue medical negligence or personal injury claims without the fear or worry that at the end of their claim, their name and address will be plastered all over the internet for all and sundry to see,’ Bowman added.

‘It is only right that the public should know that a defendant has had to pay out substantial compensation to an injured claimant, but there is no public interest in knowing who the claimant is or where he or she lives.’ 

Readers' comments (11)

  • ‘It is only right that the public should know that a defendant has had to pay out substantial compensation to an injured claimant, but there is no public interest in knowing who the claimant is or where he or she lives.’

    You could say the same about any case involving any cause of action. Why not anonymise the defendant too?

    This is a bad decision, which does nothing to advance open justice.

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  • Every exception to a General Rule diminishes the force of it and one ends up with no definable rule and a handful of exceptions to it! None achieving what each sought to achieve. Leave General Rules alone!

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  • A change of this kind should have been made by Parliament, not the Court of Appeal.

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  • I don't agree that this is an affront to the principle of open justice. As is hinted at in the article, we're dealing here with claimants who are among the most vulnerable to exploitation.

    Many of them will be in receipt of hundreds of thousands, if not millions of pounds, intended to provide for care, accommodation, future loss of earnings - in short: life. Having seen first hand the financial expoitation of protected parties, I think it is wholly right that these people and their families should be afforded the protection of anonymity.

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  • Post #1 says "You could say the same about any case involving any cause of action. Why not anonymise the defendant too? "

    A good point. Why should anonymity not apply to ALL defendants in criminal cases? That really should apply invariably prior to charge; and it might be also appropriate if it were the default rule (to be set-aside only if a Court so orders) until the defendant is actually convicted.

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  • This is a narrow decision. It only applies to approval hearings of settlements agreed between the parties.

    The *only* reason an approval hearing is needed is because of rules designed to protect the protected party or child. Yet as a result of those rules, their personal details were being made public, potentially putting them at risk given the sums of money often involved.

    Crucially in my view, if an adult with capacity reaches a settlement, there is no court hearing; no publicity, no personal details discussed in a public hearing. Yes, Court documents could be obtained by a suitably motivated journalist, but why would they randomly request details of a Claim if there had not been a public hearing bringing it to people's attention and giving details of the settlement?

    I just cannot see why open justice demands that a vulnerable Claimant face a public hearing when an equivalent litigant with capacity does not have to.

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  • More to the truth of anonymity is the depravity of a cover-up by the hospital and the NHSLA; a set-up by the courts is sure to follow, and the outcome of a case forcibly predetermined. If the parents do not accept the ‘canned’ process they are removed as the Litigation Friends and an Official Solicitor who totally ignorant of the truth is appointed. In other words “The truth the whole truth and nothing but the truth” is irrelevant, and that Maladministration of the LAW is acceptable. As a case in example KRR –v- Dartford and Gravesham Trust, read and learn for yourselves. Anonymity is here to stay by order of Lord Justice Tomlinson 04/02/2015.

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  • The defendants in clinical negligence cases are hardly in the same vulnerable position as the claimant. Usually the defendant is an NHS Trust. They are not vulnerable to exploitation or embarassement from details of their medical condition being made public.

    I have seen distress caused to families, with no expeerience of dealing with the media, when journalists descend on their doorstep.

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  • I once had representatives from ALL the National dailies sat in my waiting room Staff were instructed to tell them - No comment - Over the day they gradually left without any words from me - As I left the building there was just one journalist - I never spoke to him but he printed a "comment " from me the following day

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  • With the other story of how many £millions can be paid to acquire lead generators Fitzalan Partners, a lead-generation business - Lead Generators would be failing in their core function not to survey the hearings listings to find targets for investment practitioners?

    As the Banks and Insurers confirm with Third Party Interferences (aka Capture/Intervention) injured and vulnerable folks unaware and misinformed as to their stat rights by interferers are the easiest to get away from their lawful entitlements!

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