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England and Wales High Court (Queen's Bench Division) Decisions
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Cite as:  EWHC 1908 (QB)
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QUEEN'S BENCH DIVISION
MEDIA & COMMUNICATIONS LIST
Strand, London, WC2A 2LL
B e f o r e :
- and -
PGF NHS Trust
Jeremy Hyam QC (instructed by DAC Beachcroft LLP) for the Defendant
Hearing date: 14 July 2022
(INTERIM PUBLIC JUDGMENT PENDING APPEAL)
Crown Copyright ©
The Honourable Mr Justice Nicklin :
A: The Parties
B: Background to the dispute
C: The claim
D: The Anonymity Application
"(1) that the identities of the Claimant and the Defendant shall not be disclosed;
(2) there be substituted for all purposes of this case, in place of references to the Claimant by name and whether orally or in writing, references to 'EGC'. Likewise the Defendant shall be referred to as 'PGF NHS Trust';
(3) that the Claimant and Defendant be described in all statements of case or other documents to be filed or served in the proceedings and in any judgment or order in the proceedings and in any report of the proceedings by the press or otherwise as 'EGC' and 'PGF NHS Trust' respectively;
(4) to the extent necessary to protect the Claimant's and Defendant's identities, any other references, whether to persons or places or otherwise, be adjusted appropriately, with permission to the parties to apply in default of agreement as to the manner of such adjustments;
(5) that the address of the Claimant and of the Defendant be stated in all statements of case and other documents to be filed or served in the proceedings as the address of the Claimant's and Defendant's solicitors respectively;
(7) that the unredacted Claim Form and the unredacted Particulars of Claim be replaced by the redacted Claim Form and the redacted Particulars of Claim;
(8) the unredacted Claim Form and the unredacted Particulars of Claim are to be placed on the Court file marked 'not to be opened without the permission of a Judge, Master or District Judge of the Queen's Bench Division';
(10) that a non-party may not inspect or obtain a copy of either the unredacted Claim Form or the unredacted Particulars of Claim from either the Court paper files or digital files without the permission of a Master or High Court Judge. Any application for such permission must be made on 14 days' notice to the Claimant's solicitor, and the Court will effect service;
(11) the court's paper and digital files are to be retained by the Court and marked 'Anonymised';
(12) that reporting restrictions apply as to the disclosing of any information that may lead to the subsequent identification of the Claimant or Defendant. The publication of the name and address of the Claimant or the Defendant or of any member of the Claimant's immediate family is prohibited.
(13) that reporting restrictions also apply as to the disclosing of information contained in the documents, the confidential and private nature of which the Claimant is seeking to protect by these proceedings.
(12) that any non-party affected by this Order may apply on notice to all parties to have this Order set aside or varied…"
i) Without these orders being granted, the bringing of the proceedings would defeat their purpose; in other words, the litigation process would destroy that which the Claimant seeks to protect. In particular, without appropriate restrictions to access to the Court file, the Confidential Information (or parts of it) would be open to public inspection and the confidentiality that the Claimant is seeking to protect thereby lost.
ii) It would be inevitable that, at any interim and/or final hearing, there would be need to discuss the confidential information in open court which would also threaten to destroy the confidence in the information. This was not a case where the Court would be able to adopt the expedient (as suggested in Various Claimants -v- Independent Parliamentary Standards Authority  EMLR 4) of using confidential schedules to statements of case and witness statements to ensure that the confidential information does not enter the public domain as a result of the proceedings themselves.
iii) Anonymisation of the Claimant (and the making of associated orders to enforce that anonymity) are necessary to protect the Claimant's Article 2 and Article 8 rights.
"I am also most concerned about the effect of publication of [the Confidential Information] would have on me… If the contents… were to be made public, I would be devastated and I worry that I might find myself back in the same position in which I found myself…, when I contemplated suicide.
I am also worried that publicity about my application to prevent publication of [the Confidential Information] will have a similarly adverse effect on my health. I cannot say whether [it] would be such as to result in me contemplating suicide again, but the thought of publicity is already having a negative impact on my health…"
"Reviewing his electronic records, the last time that [the Claimant] was issued [identified medication] was on 27.3.19 and [identified medication] on 24.5.19. [The Claimant] is not taking any regular medication and the last consultation regarding depression was on 21.5.18 as below."
I will not set out the detail of the medical records, as they contain sensitive information that it is not necessary to set out in this judgment. It is sufficient to note that there are no entries suggesting that the Claimant was having any suicidal thoughts in the seven appointments he had with his GP between 2 June 2017 and 21 May 2018.
"… the Defendant does not accept that the purpose of the injunction to prevent disclosure [the Confidential Information] would be defeated if the application for anonymity and reporting restrictions were not granted…
So far as strictly necessary, a reporting restriction could be imposed by the Court in relation to [the Confidential Information] (although the Defendant does not consider any such order is likely to be necessary since patient names are anonymised)...
While it is evident from the application that the Claimant does not wish it to be publicly known that he is seeking to prevent disclosure by the NHS Defendant of the [Confidential Information].., the Defendant considers that there is a significant public interest in:
(1) the nature of the application itself (both the anonymity application and the underlying injunctive relief application); and
(2) how the application is determined by the Court. Given the public responsibilities of the NHS Defendant, with regard to its duty of candour and with regard to protecting patients from harm, the Defendant considers that such applications should not be conducted in secret."
"(iii) It was a remote assessment: para 1.2.
(iv) Dr NTE has not seen the Claimant's medical records: para 1.3 and 10.17
(v) Such medical records as he has seen does not corroborate the history of suicidal thinking which the Claimant gave: para 13.5…"
(2) The legal principles
(a) Hearings in private and anonymisation
"(1) The general rule is that a hearing is to be in public. A hearing may not be held in private, irrespective of the parties' consent, unless and to the extent that the court decides that it must be held in private, applying the provisions of paragraph (3)
(2) In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected…
(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied that one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice:
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage the confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in administration of a deceased person's estate; or
(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.
(4) The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person…
(b) Reporting restrictions
"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."
i) an order that withholds the name of the relevant party in the proceedings and permits the proceedings to be issued replacing the party's name with a cipher under CPR 16.2; and
ii) a reporting restriction order prohibiting the identification of the anonymised party.
(c) Restricting non-party access to the Court file
(d) Derogations from open justice
 Open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR 39.2 and Scott -v- Scott  AC 417…
 Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice. They are wholly exceptional: R -v- Chief Registrar of Friendly Societies, Ex p New Cross Building Society  QB 227, 235; Donald -v- Ntuli -. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
 The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M -v- W  EWHC 2457 (QB) .
 There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou -v- Coward  EMLR 21 -. Anonymity will only be granted where it is strictly necessary, and then only to that extent.
 The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott -v- Scott (above) 438–439, 463, 477; Lord Browne of Madingley -v- Associated Newspapers Ltd  QB 103 -; Secretary of State for the Home Department -v- AP (No.2)  1 WLR 1652 ; Gray -v- W  EWHC 2367 (QB) -; and JIH -v- News Group Newspapers Ltd (Practice Note)  1 WLR 1645 .
 When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. It will also adopt procedures which seek to ensure that any ultimate vindication of article 8 of the Convention, where that is engaged, is not undermined by the way in which the court has processed an interim application. On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled. The proper approach is set out in JIH.
i) In the first category (recognised expressly in CPR 39.2(3)(a)) fall the cases – such as claims for breach of confidence – in which, unless some restrictions are imposed, the Court would by its process effectively destroy that which the claimant was seeking to protect. There is no general exception to the principles of open justice in cases involving alleged breach of confidence/misuse of private information. However, it is well recognised that this type of case may well justify some derogation. The challenge is usually to ensure that the measures imposed are properly justified; that they are tailored to the facts of the individual case; and that they are proportionate, i.e. the least restrictive measure(s) necessary to protect the engaged interest: JIH . In breach of confidence/privacy cases, where this issue arises frequently, the Court may be confronted with a choice between anonymising the party (which may permit the confidential/private information sought to be protected to be identified in open court) and refusing anonymity (in which case, the confidential/private information would have to be withheld – at least initially – from any public hearing/judgment): see discussion in Khan -v- Khan -. The Court must consider whether it can fashion a procedure (for example the use of confidential schedules to witness statements and statements of case) that will properly protect the confidential/private information during the case management and trial phases of the litigation: Various Claimants -v- Independent Parliamentary Standards Authority . If it can, then the applicant may fail to demonstrate that further derogations from open justice are necessary.
ii) The second category consists of cases in which the anonymity order is sought on the grounds that identification of the party (or witness) would interfere with his/her Convention rights. In that case, the Court must assess the engaged rights and, if appropriate, perform the conventional balancing exercise from In re S: RXG ; XXX -.
 … [T]he names of the parties to litigation are important matters that should be available to the public and the media. Any interference with the public nature of court proceedings is to be avoided unless justice requires it: R -v- Legal Aid Board, ex parte Kaim Todner (A Firm)  QB 966, 978g. No doubt there will be many litigants in the courts who would prefer that their names, addresses and details of their affairs were not made public in the course of proceedings. In Kaim Todner, Lord Woolf MR explained (p.978):
"It is not unreasonable to regard the person who initiates the proceedings as having accepted the normal incidence of the public nature of court proceedings. If you are a defendant you may have an interest equal to that of the plaintiff in the outcome of the proceedings but you have not chosen to initiate court proceedings which are normally conducted in public. A witness who has no interest in the proceedings has the strongest claim to be protected by the court if he or she will be prejudiced by publicity, since the courts and parties may depend on their co-operation. In general, however, parties and witnesses have to accept the embarrassment and damage to their reputation and the possible consequential loss which can be inherent in being involved in litigation. The protection to which they are entitled is normally provided by a judgment delivered in public which will refute unfounded allegations. Any other approach would result in wholly unacceptable inroads on the general rule… There can however be situations where a party or witness can reasonably require protection. In prosecutions for rape and blackmail, it is well established that the victim can be entitled to protection. Outside the well established cases where anonymity is provided, the reasonableness of the claim for protection is important. Although the foundation of the exceptions is the need to avoid frustrating the ability of the courts to do justice, a party cannot be allowed to achieve anonymity by insisting upon it as a condition for being involved in the proceedings irrespective of whether the demand is reasonable. There must be some objective foundation for the claim which is being made."
 The same point was made by Lord Sumption in Khuja -v- Times Newspapers Ltd  AC 161:
 In most of the recent decisions of this court the question has arisen whether the open justice principle may be satisfied without adversely affecting the claimant's Convention rights by permitting proceedings in court to be reported but without disclosing his name. The test which has been applied in answering it is whether the public interest served by publishing the facts extended to publishing the name. In practice, where the court is satisfied that there is a real public interest in publication, that interest has generally extended to publication of the name. This is because the anonymised reporting of issues of legitimate public concern are less likely to interest the public and therefore to provoke discussion. As Lord Steyn observed in In re S  1 AC 593 :
"... from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be a very much disembodied trial. If the newspapers choose not to contest such an injunction, they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
"What's in a name?", Lord Rodger memorably asked in In re Guardian News and Media Ltd before answering his own question, at  ... The public interest in the administration of justice may be sufficiently served as far as lawyers are concerned by a discussion which focusses on the issues and ignores the personalities, but ():
"... the target audience of the press is likely to be different and to have a different interest in the proceedings, which will not be satisfied by an anonymised version of the judgment. In the general run of cases there is nothing to stop the press from supplying the more full-blooded account which their readers want".
cf. In re BBC; In re Attorney General's Reference (No.3 of 1999)  1 AC 145 – (Lord Hope of Craighead) and ,  (Lord Brown of Eaton-under-Heywood).
 None of this means that if there is a sufficient public interest in reporting the proceedings there must necessarily be a sufficient public interest in identifying the individual involved. The identity of those involved may be wholly marginal to the public interest engaged. Thus Lord Reed remarked of the Scottish case Devine -v- Secretary of State for Scotland (unreported) 22 January 1993, in which soldiers who had been deployed to end a prison siege were allowed to give evidence from behind a screen, that "their appearance and identities were of such peripheral, if any, relevance to the judicial process that it would have been disproportionate to require their disclosure": A -v- BBC  AC 588 . In other cases, the identity of the person involved may be more central to the point of public interest, but outweighed by the public interest in the administration of justice. This was why publication of the name was prohibited in A -v- BBC. Another example in a rather different context is R (C) -v- Secretary of State for Justice (Media Lawyers Association intervening)  1 WLR 444, a difficult case involving the disclosure via judicial proceedings of highly personal clinical data concerning psychiatric patients serving sentences of imprisonment, which would have undermined confidential clinical relationships and thereby reduced the efficacy of the system for judicial oversight of the Home Secretary's decisions.
i) A positive obligation to take steps to protect life will arise when the evidence demonstrates that there is a "real and immediate" threat to life; "a real risk is one that is objectively verified and an immediate risk is one that is present and continuing". The test is not readily satisfied, and the threshold is high. For a threat to be "real" it must be objectively well-founded: Re Officer L .
ii) The rights guaranteed by Articles 2/3 are, in this context, unqualified. The Convention therefore requires that proceedings must be organised in such a way that the interests protected by those articles are not unjustifiably imperilled: RXG [25(ii)].
iii) Where there is a conflict between open justice (and rights protected by Article 10) and the unqualified rights guaranteed by Articles 2/3, there can be no derogation from the latter. But even in such a case, care must nevertheless be taken to ensure that the extent of the interference with open justice is no greater than is necessary: RXG [25(vi)].
"(i) Restrictions upon freedom of expression must be (a) in accordance with the law; (b) justifiable as necessary to satisfy a strong and pressing social need, convincingly demonstrated, to protect the rights of others; and (c) proportionate to the legitimate aim pursued: Venables  Fam 430 .
(ii) The strong and pressing social needs which may justify a restriction upon freedom of expression, in principle, include: (a) the right to life and prohibition of torture under articles 2 and 3 (Venables -; X (formerly Bell) -v- O'Brien  EMLR 37 ; Carr -v- News Group Newspapers Ltd  EWHC 971 (QB) ; and A -v- Persons Unknown  EMLR 11 ("Edlington") , ); and (b) the right to a private and family life under article 8 (Venables –; Bell –; and Carr ).
(iii) The threshold at which article 2 and/or 3 is engaged has been described variously as: 'the real possibility of serious physical harm and possible death' (Venables ); 'a continuing danger of serious physical and psychological harm to the applicant" (Carr ); an 'extremely serious risk of physical harm' (Edlington ).
(iv) In Venables (–) Dame Elizabeth Butler-Sloss P considered that the authorities of Davies -v- Taylor  AC 207 and In re H (Minors) (Sexual Abuse: Standard of Proof)  AC 563 provided helpful guidance as to the assessment of future risks to physical safety. She held that the test is not a balance of probabilities but rather that the evidence must 'demonstrate convincingly the seriousness of the risk' and raise a real possibility of significant harm: a possibility that cannot sensibly be ignored having regard to the nature and gravity of the feared harm.
(v) Where an applicant demonstrates, by cogent evidence, that there is a real and immediate risk of serious physical harm or death, then there is no question of that risk being balanced against the article 10 interests: Carr .
(vi) In cases where articles 2 and 3 are not engaged and the conflict is between the article 8 and article 10 rights, neither right has precedence over the other. What is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case. The justifications for interfering with or restricting each right must be taken into account and a proportionality test must be applied: Edlington .
(vii) The rights guaranteed by articles 2 and 3 are unqualified. Where the evidence demonstrates that there is a real and immediate risk of serious harm or death this cannot be balanced against any article 10 right, no matter how weighty. In that context, it should be noted that we would respectfully depart from the proposition articulated by Sir Geoffrey Vos C in Edlington  that article 2 and 3 rights could be balanced against article 10 (a proposition later adopted by Sir Andrew McFarlane P in Venables -v- News Group Newspapers Ltd  2 FLR 81 ): see further [25(vi)] above.
(viii) However, where evidence of a threat to a person's physical safety does not reach the standard that engages articles 2 and/or 3, then the evidence as to risk of harm will usually fall to be considered in the assessment of the person's article 8 rights and balanced against the engaged article 10 rights. Whilst the level of threat may not be sufficient to engage articles 2 or 3, living in fear of such an attack may very well engage the article 8 rights of the person concerned…"
"… First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test…"
 The central problem with Mr Rule's submissions on the law, so it seems to me, is that he focuses exclusively on the general methodology for resolving conflicts between Articles 8 and 10 that is prescribed in In re S , without regard to what Lord Steyn went on to say about the application of that methodology. Neither Article 8 nor Article 10 has priority as such. But where the open justice principle is engaged the weight to be attributed to the Article 10 right to impart and receive information is considerable. Lord Steyn made this clear at a number of points in his judgment in In re S, beginning at , where he identified "the general rule" that "the press, as the watchdog of the public may report everything that takes place in a criminal court", adding that "in European and in domestic practice, this is a strong rule. It can only be displaced by unusual or exceptional circumstances".
 This does not mean that a fact-sensitive approach is not required. As Lord Steyn went on to say, "The duty of the court is to examine with care each application for a departure from the rule by reason of rights under article 8." The "strong rule" referred to by Lord Steyn reflects the fact that not all kinds of speech are of equal value. The jurisprudence shows there is a hierarchy or scale, with political speech towards the top end, via what Baroness Hale has called "vapid tittle-tattle", down to hate speech (to the extent this is protected by the Convention). Speech involving the communication to the public of information about what takes place in a criminal court ranks high in this scale of values. The fact-sensitive investigation must start with that recognition. The point is reflected in paragraph -, where Lord Steyn emphasised the importance of the freedom of the press to report the progress of a criminal trial without restraint, and at , where Lord Steyn approved the Convention analysis of Hedley J at first instance, in these terms:
"Given the weight traditionally given to the importance of open reporting of criminal proceedings it was… appropriate for him, in carrying out the balance required by the ECHR, to begin by acknowledging the force of the argument under article 10 before considering whether the right of the child under article 8 was sufficient to outweigh it."
As appears from In re S , Hedley J had begun by recognising "the primacy in a democratic society of the open reporting of public proceedings on grave criminal charges and the inevitable price that involves in incursions on the privacy of individuals".
 In my judgment, none of the later authorities relied on by Mr Rule serves to undermine or qualify the authority of these passages from In re S, or to refine or add to what was said by Lord Steyn in a way that helps the argument for the appellant. On the contrary, the cases relied on contain several reaffirmations of the same approach.
(1) In A Local Authority -v- W  1 FLR 1 , Sir Mark Potter P observed that Lord Steyn, having identified the methodology with its "intense focus", had "strongly emphasised the interest in open justice as a factor to be accorded great weight in both the parallel analysis and the ultimate balancing test".
(2) In A -v- BBC -, Lord Reed said:
"It is apparent from recent authorities at the highest level ... that the common law principle of open justice remains in vigour, even when Convention rights are also applicable … the starting point in this context is the domestic principle of open justice … Its application should normally meet the requirements of the Convention".
(3) In Khuja , Lord Sumption pointed out that
"… in deciding what weight to give to the right of the press to publish proceedings in open court, the courts cannot, simply because the issues arise under the heading 'private and family life', part company with principles … which have been accepted by the common law for many years … and are reflected in a substantial and consistent body of statute law as well as the jurisprudence on article 10 …"
i) the proper administration of justice, including the need to ensure that the proceedings do not defeat the purpose for which they have been brought;
ii) the protection of the Claimant's Article 2 right to life; and
iii) the protection of the Claimant's Article 8 right to respect for his private and family life and correspondence.
"… it is relevant that at each stage this matter has in fact proceeded without identification of Dr X. In the context of both sexuality and the findings of sexual misconduct, that is the critical matter"
Overall, Soole J concluded that "publication of [the sanction decision] in the proposed form would constitute a breach of Dr X's right to life under Article 2"
i) The restrictions sought by the Claimant are not necessary. The Court can adopt measures that will properly protect the confidential information during the pendency of the proceedings that will involve significantly fewer derogations from open justice than the comprehensive restrictions sought by the Claimant. He argues that the detail of the Confidential Information could be protected by appropriate measures in the proceedings. In open court, the public and media would know that the Claimant (who could be identified) was seeking to prevent the disclosure of the Confidential Information by the Defendant (which could also be identified).
ii) The situation confronting the Court is very different from the typical breach of confidence/breach of privacy claim because of the extent of the information that is already in the public domain.
iii) The amount of material already in the public domain would mean that the reporting restriction sought by the Claimant would effectively curtail any reporting of the case for fear that publication of details of the case would lead to the jigsaw identification of the Claimant by reason of the pre-existing media coverage. If that is right, then the Claimant is effectively asking the Court to hear and determine his claim in circumstances of complete anonymity with, effectively, a ban on any meaningful reporting of the case. The Claimant's evidence comes nowhere near justifying such a course.
iv) The Claimant's evidence as to the alleged threat to his Article 2 rights is very far from being "clear and cogent". Mr Hyam QC referred and relied upon the points made by the Defendant's solicitors in their letter of 12 July 2022 (see  above).
v) As regards Article 8, with proper measures being adopted, the interference with the Claimant's Article 8 rights would be limited, but the restrictions he sought would have a very significant impact on open justice. There is a significant public interest in (a) the fact that the Claimant is bringing these proceedings to prevent the Defendant from making the proposed disclosure; and (b) that he has sought anonymity in these proceedings. The reporting restrictions sought by the Claimant would effectively curtail reporting of what is a matter of significant public interest.