Anonymity in clinical negligence claims—a necessary and timely reminder (Zeromska-Smith v United Lincolnshire Hospitals NHS Trust)

Under what circumstances will an application for anonymity be considered? Kate Rohde, partner at Kingsley Napley, outlines the facts of Zeromska-Smith v United Lincolnshire Hospitals NHS Trust and explains why Spencer J rejected the claimant’s application.

Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB), [2019] All ER (D) 66 (Mar)

What are the practical implications of this case?

Lincolnshire Hospitals NHS Trust demonstrates how extremely difficult it is to obtain anonymity orders in cases where the claimant is neither a child nor a protected party. Claimants should be aware when going to trial that it is highly likely their personal and sensitive information will be discussed in public.

The case establishes that anonymity must be absolutely ‘necessary’ in order to dispel the general principle of open justice. Cases where anonymity orders have been granted to claimants who are neither a child nor a protected party are typically only granted ‘in circumstances which are truly exceptional’.

Furthermore, applications for anonymity should generally be made in advance of the trial, so that the Press Association is given sufficient notice and claimants can consider their options if anonymity is not granted before the trial commences.

What was the background to this case?

The claimant sought damages for injury arising out of the stillbirth of her daughter at the defendant’s hospital on 27 May 2013. A cardiotocography (CTG) trace that day had revealed that the claimant’s baby had died in utero but labour still had to proceed, which lasted some 18 hours.

The defendant admitted liability for the stillbirth and that the claimant was entitled to recover damages arising from the fact that the pregnancy was not brought to a successful conclusion.

The claimant also sought significant damages for psychiatric injury caused by the stillbirth. The claimant had subsequently gone on to have two young sons and alleged she now suffered from disabling separation anxiety which required her to have her sons in her sight at all times.

The claim for damages in respect of psychiatric injury was disputed by the defendant.

Claimant’s counsel submitted an anonymity application at the start of the trial. The claimant’s reasons for the application included:

the level of damages sought, which was likely to attract significant media attention
public knowledge of the claimant’s condition could cause irreparable damage to the family unit
the interests of the claimant’s young children should be considered—if they discovered the facts of the case at a later date, it could cause them harm and distress
publication of the claimant’s identity would risk further considerable damage to her mental health
the claimant could receive harmful abuse from members of the public as a reaction to some of the evidence
if the claim was successful, the claimant and her family could become subject to unwanted attention from strangers

The claimant’s anonymity application was passed to the Press Association for written submissions. The Press Association argued against the granting of anonymity on the basis that:

while the claimant’s rights under Article 8 of the European Convention on Human Rights (ECHR) (right to private and family life) were engaged, these were to be weighed against Article 10 ECHR (freedom of expression, which also protects rights of the press)
anonymity orders in cases where the party seeking them is neither a child nor a protected party should only be made in exceptional circumstances and where necessary in the proper administration of justice
the order sought in this case would represent a departure from previous jurisprudence and set an unfortunate precedent

What did the court decide?

The claimant’s application for anonymity was rejected by the trial judge, Spencer J. The basis for his reasoning was ‘the fundamental principle of common law that justice is administered in public and judicial decisions are pronounced publicly’, otherwise known as open justice.

The CPR provides exceptions to the rule that hearings are held in public. CPR 39.2(3)(g) provides that a hearing, or part of it, can be held in private if it is ‘necessary in the interests of justice’. Under CPR 39.2(4), the identity of any party or witness may not be disclosed if it is ‘necessary in order to protect the interests of that party or witness’. In his decision, Spencer J emphasised the word ‘necessary’ present in these permissible exceptions.

Spencer J cited the case of Guardian News and Media Ltd, Re sub nom Application by Guardian News and Media Ltd in Ahmed v HM Treasury [2010] UKSC 1, [2010] All ER (D) 178 (Jan). In this case, Lord Rodger reasoned that the use of a name is extremely important to the press, as the public finds it easier to relate to stories regarding identifiable individuals. If a press article does not contain the identities of the individuals concerned, ‘readers would be less interested’ and ‘informed debate’ about the subject matter would suffer as a result.

Spencer J distinguished the following instances where anonymity orders have been issued:

approval applications in relation to settlements on damages in claims brought by children and protected parties—anonymity orders are made in these instances so that there is equality with other claimants who do not have their settlements approved, and therefore their claims discussed, in open court
the case of ABC v St George’s Healthcare NHS Trust [2015] All ER (D) 172 (May), [2015] EWHC 1394 (QB) where an anonymity order was made so as to avoid harm to the daughter of the claimant—the claimant had Huntington’s disease, a genetic condition which meant her daughter had a 50% chance of inheriting the disease and the order minimised the risk of the daughter finding this out through chance

In the present case, Spencer J explained that ‘the revelation of the matters personal to this claimant and her family are inherent and intrinsic to a claim of this nature’. As the claimant had made a decision to bring the proceedings, she could not ‘avoid the consequences’ of the principle of open justice and the publicity associated with proceedings in public court.

In obiter, Spencer J criticised the timing of the anonymity application being made at the start of the trial. He felt that in general these should be made in advance of the trial, in order to give the Press Association adequate time to respond and so that in sensitive cases a claimant will know in advance whether the trial will be held in public, as knowing the trial could attract publicity may influence any decision taken in relation to a settlement.

For readers with a subscription to LexisPSL, guidance on changes to CPR 39 which come into force on 6 April 2019 can be found in News Analysis: CPR changes—6 April 2019.