When Anonymity Is Justified: The Court of Appeal Clarifies Anonymity Orders in PMC v Cym Taf Morgannwg University Health Board

29/08/2025

The Court of Appeal has handed down its judgment in PMC v Cym Taf Morgannwg University Health Board, a case that revisits the principle of open justice and the circumstances in which Anonymity and Reporting Restriction Orders may be granted in clinical negligence proceedings involving children and protected parties. The application made in PMC’s case was for an Anonymity Order during litigation proceedings, as opposed to at the settlement approval stage of proceedings.

Background

The Claimant, PMC, was born with cerebral palsy following negligent medical care in 2012. His claim is for damages exceeding £10 million. Judgment on liability was entered by consent in 2023. PMC is considered to lack capacity to conduct proceedings and is therefore a protected party.

The Claimant had previously been the subject of media coverage highlighting the impact of clinical negligence. The Claimant’s litigation friend and solicitor had shared substantial information with the media which led to the publication of these articles and reports. The Claimant’s mother soon became concerned that the media may report on personal details about the Claimant’s medical condition, any interim payments received, or further case specific sensitivities.

On 1 November 2024, the Claimant sought an immediate interim Anonymity Order and a final Anonymity Order, pending the application being heard. The hearing was listed before the Honourable Mr Justice Nicklin. The order sought before the Judge was substantively to the following effect:

i. The identity of the Claimant as a party to the proceedings was confidential and was not to be published

ii. Under CPR Part 39.2(4), the name or address of the Claimant, the Claimant’s Litigation Friend or other immediate family members, or details that could lead to the Claimant’s identification were not to be disclosed in any media report, and

iii. Under CPR Parts 5.4C and 5.4D, non-parties could not obtain copies of non-anonymised statements of case, judgments or orders from the Court records.

The application was refused at first instance by Nicklin J, who held that:

i. The default position is open justice [148].

ii. The general rule is that the names of the parties to proceedings will be made public [27].

iii. Any order to withhold the name of a party is a derogation from the principle of open justice and an interference therefore with Article 10 of the Human Rights Act 1998 [29].

iv. There are two distinct elements to any anonymity order which do not have to be granted together. The withholding order, which withholds the name of the relevant person in proceedings and the Reporting Restriction Order, which prevents dissemination of that withheld information [45].

v. Khuja v Times Newspapers Ltd [2019] AC 161 is unambiguous authority for the principle that a reporting restriction must have a statutory basis [106].

vi. JX MX v Dartford and Gravesham NHS does not assist where pre-existing publicity is in issue [125].

vii. Where a Reporting Restriction Order is sought retrospectively this would be difficult to obtain as it would require the press to take down and amend articles that had already been published [139].

The Court of Appeal

Before the Court of Appeal, on behalf of the claimant two alternative formulations of Anonymity Order were sought. The first of these was as has been considered by Mr Justice Nicklin. The second alternative, described as a fallback, was different in that it sought the prohibition on disclosing identifying details of the claimant, his Litigation Friend or other immediate family members in any media report only ‘from the date of this order’, i.e. it was intended to be prospective rather than retrospective.

After going through a careful summary and analysis of the relevant case law, Sir Geoffrey Vos held that there were three reasons why Nicklin J had been wrong to prefer the dictum in the case of Khuja to other authority. First, that Khuja was not a case like this. In that case, material concerning Khuja had already been deployed in the open court trial before an application was made for the order, whereas the present case involved “a classic situation in which the court is being asked to protect the integrity of its own process in the interests of justice.” [81] Secondly, it was clear from other authorities that there is an inherent power in the court, derived from the common law, to derogate from the principle of open justice in civil proceedings, by making both a WO and an RRO where such an order strictly necessary and in the interests of justice: [82]. Thirdly, there are clear indications from the authorities that the common law power to derogate from the open justice principle during proceedings can be deployed to protect the interests of vulnerable parties [87].

The Court of Appeal disagreed with Nicklin J and held that in PMC’s case a prospective Anonymity Order was both necessary and in the interests of justice. While the order could not operate retrospectively considering earlier press coverage, it would prevent further identification of PMC and his family in connection with the litigation. Importantly, it would not inhibit reporting of matters of public interest, such as the hospital’s failings or the level of damages awarded.

In reaching this conclusion, the Court identified three factors which made an Anonymity Order strictly necessary and in the interests of justice [109]:

i. The extreme vulnerability of the Claimant;

ii. The serious infringement upon the Claimant’s private and family life in relation to the medical details, family circumstances and financial matters that this litigation will involve if the details were reported in the media alongside the Claimant’s name;

iii. The severity of the case.

The Court reaffirmed the centrality of open justice and that such a principle should not be departed from unless it is strictly necessary and in the interests of justice to do so. Prior publicity does not bar a later application, just as it does not prevent the making of Anonymity Orders at settlement approval hearings.

However, the Court emphasised that judges must balance the value of open justice against the risk that disclosure could undermine the fairness of the proceedings, with the assessment turning on the specific facts of each case. Further, it should not be assumed that a derogation from the open justice principle will be held to be strictly necessary in a case where the evidence did not cover all these factors and was less compelling; it is important that each is considered on its own facts.

The Court of Appeal acknowledged that a prospective Anonymity Order could not entirely eliminate the risk of jigsaw identification, given the existing media coverage. However, it stressed that this residual risk was not a sufficient reason to refuse the Claimant a modicum of protection at such a crucial stage in litigation.

Concluding Remarks

The Court of Appeal’s decision is a welcome development, offering valuable guidance to practitioners applying for Anonymity Orders both during proceedings and at the settlement approval stage. The judgment confirms that while open justice remains the default position, departures from it may be justified in compelling circumstances, with the assessment always turning on the specific facts of the case.

The Personal Injury Bar Association (PIBA) intervened on behalf of its members in this appeal, supporting aspects of the claimant’s appeal. Considering the judgment, PIBA has said that it will produce interim guidance regarding anonymity applications in personal injury cases and provide a standard form of order for interim use by practitioners in CPR 21.10 situations, pending a revised PF10 being issued by the Civil Procedure Rules Committee.