Written by Carys Lewis, Associate in our Clinical Negligence department.
The Court of Appeal handed down the judgment in the case of PMC v A local health board today following a two-day hearing on 22 and 23 July 2025. We represented the Claimant in this case. Robert Weir KC (Devereux Chambers) and Robert Oldham (12 KBW) were instructed to represent the Claimant at the hearing by instructing solicitors Stephen Webber and Carys Lewis of our Medical Negligence department.
The Claimant in PMC is bringing a clinical negligence claim via his litigation friend to seek compensation for the injuries he sustained at birth due to negligence. As a result of the admitted negligence the Claimant has cerebral palsy. PMC is considered to lack capacity to conduct the litigation and for the purposes of the proceedings he is a protected party.
In November 2024 the Claimant’s solicitor was contacted by a media organisation after they had obtained a copy of the Particulars of Claim from the Court’s electronic CE file. The media organisation wished to publish a piece about the Claimant. The Claimant’s family have been involved in publicity previously but had not engaged with the press since 2020, including after the litigation claim was issued at Court in 2023. The Claimant’s mother was concerned that the press may report the amount of compensation the Claimant has received to date (via interim payments) or publicise personal and sensitive details about the Claimant’s medical condition. She therefore did not wish to engage with the media organisation.
It was therefore necessary to apply to the Court for an anonymity order. A hearing was listed urgently before The Honourable Mr Justice Nicklin, following which the judgment in PMC was provided.
The Claimant was refused an anonymity order at first instance and the Judge found that the Court did not have an inherent jurisdiction to make a Reporting Restriction Order. He commented that the starting point is open justice, and that when the Court conducts its balancing exercise, the scales are weighed in its favour. He also found that it was an essential pre-condition of the making of an order under section 11 of the of the Contempt of Court Act 1981 that a withholding order has been in place throughout the proceedings, and this was not the case in PMC. He commented that where an RRO is sought after litigation has progressed and information has been published, it will be very difficult to obtain an RRO. The Judge also found that PMC was not at real risk of exploitation with the evidence being “vague and general” and “little better than assertion”. He commented that the factors relied upon by PMC were very weak. He went on to say the amount of material in the public domain due to the previous publicity and the fact that the earlier phases of the litigation were conducted without an anonymity order meant that at the stage of the litigation at which PMC applied for an order it would be unjustifiable and futile to grant one.
The Judge also made a number of observations and criticisms in relation to a previous Court of Appeal Judgment, JX MX v Dartford, which is the case that practitioners rely on when seeking an anonymity order at the settlement approval hearing (settlements reached on behalf of children or protected parties require Court approval). These comments created uncertainty in the legal world regarding the process and procedure for seeking an anonymity order at the settlement approval stage of the litigation.
Today the Court of Appeal has confirmed that the Judge was wrong and that in PMC’s case an anonymity order drafted in prospective terms is strictly necessary in the interests of justice. The prospective anonymity order will not prevent the media reporting on the case and any matters of public interest, or the amount of damages recovered in the case. Instead it simply prevents the Claimant from being identified in the media as the Claimant in this case. The Court has also helpfully confirmed that JX MX v Dartford remains good law.
Guidance on how the judgment affects cases in the future when applying for an anonymity order during litigation proceedings (as per the circumstances of the case in PMC)
From paragraph 107 of the judgment onwards the Court helpfully explains what process should be followed where applications for anonymity, like in PMC’s case, are made in the future during the litigation proceedings (not during the settlement approval process).
The Court confirms that it was right of the Judge at first instance to emphasise the critical importance of the common law principle of open justice and this principle should only be departed from where it is strictly necessary to do so in the interests of justice.
The Court acknowledges that the administration of justice is a continuing process and the Court can take steps during proceedings to ensure that the interests of justice will not be defeated in the future. Anonymity orders made during proceedings may therefore be necessary, considering the risks posed in the circumstances of the case — including risks to the health of a vulnerable person, or where it is necessary to protect them from disclosure of personal information where there is no public interest in publication
The Court confirms that it must carry out a fact specific balancing exercise between the purpose of the open justice principle and the value of information in advancing that principle against any risk of harm which disclosure of the information may have on an effective judicial process.
The Court confirms that previous publicity does not disqualify an application for an anonymity order being made, any more than it would the application being made at the time of the approval hearing under CPR 21.10. It is acknowledged that previous media coverage may be regarded when considering whether it is possible to make a retrospective or prospective anonymity order. It is also acknowledged that a prospective anonymity order will not necessarily prevent jigsaw identification, due to the media articles already in the public domain, but that is not a reason to refuse the Claimant protection at this stage of the litigation.
In PMC’s case, the Court confirms that the main features making it necessary to make a prospective anonymity order, in the interests of justice are as follows:
- The extreme vulnerability of the Claimant
- The serious infringement upon the Claimant’s private and family life in relation to medical details, family circumstances and financial matters that the litigation will involve, if details are reported alongside the Claimant’s name
The Court acknowledges that PMC is a serious case.
The Court reiterated that each case must be considered on its own facts and it should not be assumed that a derogation from the open justice principle will be held to be necessary where evidence did not cover all these factors or was less compelling.
The judgment indicates that an anonymity order can be applied for at any stage of proceedings if necessary. The Court does however caution that those making applications for an anonymity order would be well advised to do so as early as reasonably possible in the litigation process.
Applications for anonymity orders in a claim made by a child or protected party are made under the Court’s inherent common law jurisdiction to protect the integrity of its proceedings in the interests of justice. Each case will be fact specific and a balancing act will need to be carried out between the purpose of the open justice principle and the harm which disclosure of the information may have on an effective judicial process.
Guidance on how the judgment affects cases in the future when applying for an anonymity order at the settlement approval stage of proceedings (as per JXMX v Dartford)
The judgment confirms that the law in JX MX v Dartford remains good law and is binding. It is also acknowledged that JX MX v Dartford only deals with anonymity orders made in approval applications under CPR 21.10, which is not the case in PMC (the application was made during proceedings).
The Court considered whether the Judge was right to criticise the judgment in JX MX v Dartford. The Court confirms that the Judge was wrong to consider that applications under CPR 21.10 to approve a child or protected party’s settlement are the same as other applications for anonymity.
The Court suggests that the process set out by Moore-Bick LJ in the Dartford judgment was provided to introduce an effective way of resolving applications for anonymity in the context of approval hearings and that the Court was not suggesting that the Claimant did not need to apply for the order or that the order would automatically be given. The Claimant usually applies for the anonymity order at the same time as requesting a settlement approval hearing listing, or the application is made orally at the outset of the approval hearing.
The Master of the Rolls has provided additional guidance in relation to JX MX v Dartford and suggests that it would be better to list the application for approval anonymously until the anonymity order issue has been decided. This differs from Moore-Bick LJ’s guidance which is to list the hearing in the name of the protected party. In the PMC judgment it is acknowledged that the settlement approval hearing should be heard in public.
The Court also confirms that the evidence required at the approval hearing in support of the application for an anonymity order will depend on the case, and appropriate evidence should be set out as necessary. It is acknowledged that the circumstances of the case may be sufficient to make it clear where the balance lies and the steps that are necessary to protect the Claimant in the interests of justice. The Master of the Rolls confirms that in his view, he does not consider that evidence needs to speculate as to the future risks to the Claimant.
In cases where the media have shown an interest, they should be notified that the application is being made so that they can be heard if they wish. If media representatives are present at the approval hearing they should have the opportunity to be heard (and in our experience this is a process already followed by Judges during approval hearings).
The Master of the Rolls also confirms that where there is no known media interest he cannot see why the media needs to be notified in advance of an anonymity application being made. The media will become aware after the order is made as it is a requirement that the order is published on the Judiciary’s website and at that stage an application can be made to set it aside if necessary.
Conclusion
The Court of Appeal’s decision is welcomed in this case and has provided much needed clarity to civil litigation practitioners seeking anonymity orders during proceedings and at the settlement approval stage of the litigation. The Claimant and his family now have the protection required to continue to proceed with the litigation, safe in the knowledge that any details published about the claim or details of the settlement value will be anonymised.
We are grateful to the Court for providing judgment so quickly in this case and for providing helpful guidance going forwards.
