The High Court recently examined the issue of granting anonymity to a claimant (C) of full mental capacity. C was seeking damages for psychiatric injury following the stillbirth of her daughter. Counsel argued that reasoning in the case of JXMX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96 assisted C, the Judge however disagreed and said that the practice of routinely making anonymity orders was “peculiar to approval hearings for children and protected parties” and did not assist adult claimants of full capacity who have litigated by choice. The Judge said that whilst this case held “intimate details of the Claimant’s private and family life, her psychiatric condition and her relationship with her two children” the court should not detract from open justice and the interest of the press in reporting the proceedings. The application was made at the start of the trial and without any notice being given to the Press Association in advance. As a result there was not full consideration of the issues, or properly prepared submissions on behalf of the Press. Whereas the Judge thought that any anonymity application: “…should be made and heard in advance of the trial, and should be served on the Press Association. There are two reasons for this. First, and most obviously, it gives the Press Association a proper opportunity to make representations, whether orally at the application or in writing in advance. Secondly, the outcome of the application may inform any decision taken by a Claimant in relation to settlement.” If a Claimant in a sensitive case knows that, if the matter goes to trial, her name will be published in the press, that might be an important or decisive factor in whether she decides to settle. The Judge noted that: “An application for anonymity should be made well in advance of the trial and Claimants (and their advisers) should not assume that the application will be entertained at the start of the trial (because of the disruption to the trial which may ensue, if the application needs to be adjourned to enable the Press Association time to make submissions), nor that it will be ‘nodded through’ by the judge, where the Defendant takes a neutral stance and there is only a court reporter to represent the interests of the press” The Judge refused C’s application for anonymity. This case contains important guidance on the timing of anonymity applications by adult litigants and emphasises how exceptional it is for such applications to be granted.

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