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JX MX (By her mother and litigation friend AX MX) v Dartford and Gravesend NHS Trust

This is an important case on “anonymisation” of approval applications involving children or protected parties.

Under CPR 39.2(d) a hearing may be in private if “a private hearing is necessary to protect the interests of any child or protected party.” In JX (which involved severe cerebral palsy) the approval hearing was held in public but the claimant asked for various orders to prevent any publication of her name. Tugendhat J declined but did direct that her address should not be disclosed and granted leave to appeal. Moore-Bick LJ, giving the judgement of the court, allowed the appeal and suggested that the principles set out below should apply. In essence, in approval cases involving severe injury, the court should make an anonymity order unless persuaded otherwise: see (v) below.

  1. 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;
  2. Since 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;
  3. 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");
  4. The judge should invite submissions from the parties and the Press before making an anonymity order;
  5. 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;
  6. 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;
  7. 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.

Napier Miles / 1st Mar 2015


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