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MX -v- Dartford & Gravesham NHS Trust and Others

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MX -v- Dartford & Gravesham NHS Trust and Others

Postby dls » Wed Feb 18, 2015 9:28 am

MX -v- Dartford & Gravesham NHS Trust and Others - CA - 17-Feb-2015 - Moore-Bick VP, Black, Lewison LJJ (Bailii, [2015] EWCA Civ 96) - Media - Human Rights - Children - Litigation Practice
Application was made for approval of a compromise of a claim for damages for personal injury for the child. The court now considered whether an order should be made to protect the identity of the six year old claimant.
Held: An order should have been made: " the following principles should apply:
(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;
(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;
(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an "anonymity order");
(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;
(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;
(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;
(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing."
Moore-Bick VP LJ said: "Any application of the present kind, therefore, gives rise to tension between the principle of open justice and the need to do justice in the individual case; or, if the matter is considered in Convention terms, a question whether it is necessary to interfere with the rights of the public and the Press under article 10 in order to protect the rights of the claimant and his or her family under article 8 and vice versa. The constitutional importance of the principle of open justice, as recognised in the authorities, is such that any departure from it must be justified strictly on the grounds of necessity. The same may be said of the right to freedom of speech. In either case the test is one of necessity. Although that usually involves a decision based on the judge's evaluation of the facts of the case before him, it is important to be clear that the decision does not involve an exercise of discretion. Accordingly, although this court will accord proper deference to the judge's assessment, it will in an appropriate case consider the matter afresh and decide for itself whether the proposed derogation from the principle of open justice is indeed necessary. It follows from the fact that the test is one of necessity that in order to be justified the derogation must be the minimum that is consistent with achieving the ultimate purpose of doing justice in the instant case."
European Convention on Human Rights s. 14 s. 10
Children and Young Persons Act 1933 s. 39

Cases Cited:
Scott -v- Scott HL 5-5-1913 ([1912] P 241, [1913] AC 417, 29 TLR 520, [1911-13] All ER 1, Bailii, [1913] UKHL 2)
Evans and Others -v- The Serious Fraud Office QBD 12-2-2015 (Bailii, [2015] EWHC 263 (QB))
Attorney-General -v- Leveller Magazine Ltd HL 1-2-1979 (lip, [1979] AC 440, [1978] 3 All ER 731, [1979] 2 WLR 247)
B -v- The United Kingdom; P -v- The United Kingdom ECHR 2001 ([2001] 2 FLR 261, 35974/97, Bailii, [2001] ECHR 298, 36337/97, [2001] 2 FCR 221, (2002) 34 EHRR 19, [2001] Fam Law 506, 11 BHRC 667)
In re Guardian News and Media Ltd and Others; HM Treasury -v- Ahmed and Others SC 27-1-2010 (Bailii, [2010] UKSC 1, Times, Bailii, SC, SC Summ, UKSC 2009/0016, Bailii Summary, [2010] 2 WLR 325, WLRD, [2010] WLR (D) 13, [2010] EMLR 15, [2010] 2 All ER 799, [2010] UKHRR 181, [2010] HRLR 14, [2010] 2 AC 697)
A -v- Independent News & Media Ltd and Others CA 31-3-2010 (Bailii, [2010] EWCA Civ 343, Times, (2010) 113 BMLR 162, [2010] 3 All ER 32, [2010] 1 WLR 2262, [2010] 2 FLR 1290, [2010] Fam Law 705, [2010] 2 FCR 187)
JIH -v- News Group Newspapers Ltd CA 31-1-2011 (Bailii, [2011] EWCA Civ 42, [2011] 2 All ER 324, (2011) 108(7) LSG 18, (2011) 161 NLJ 211, [2011] EMLR 15)
Bank Mellat -v- Her Majesty's Treasury (No 1) SC 19-6-2013 (Bailii, [2013] UKSC 38, SC Summary, UKSC 2011/0040, SC, [2013] WLR(D) 244, WLRD, Bailii Summary)
A -v- British Broadcasting Corporation (Scotland) SC 8-5-2014 (Bailii, [2014] UKSC 25, [2014] 2 All ER 1037, 2014 GWD 15-266, [2014] WLR(D) 196, [2014] 2 WLR 1243, [2014] EMLR 25, 2014 SLT 613, WLRD, Bailii Summary, UKSC 2013/0159, SC Summary, SC)
Regina -v- Legal Aid Board ex parte Kaim Todner (a Firm of Solicitors) CA 10-6-1998 (Times 15-Jun-98, Gazette 01-Jul-98, Bailii, [1998] EWCA Civ 958, [1999] QB 966, [1998] 3 All ER 541, [1998] 3 WLR 925)
MXB -v- East Sussex Hospitals NHS Trust QBD 20-11-2012 (Bailii, [2012] EWHC 3279 (QB))
JC and Another -v- The Central Criminal Court QBD 8-4-2014 (Bailii, [2014] EWHC 1041 (QB))
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