Court of Appeal landmark judgment provides clarity and guidance on anonymity orders for vulnerable individuals

The judgment by the Court of Appeal in a clinical negligence claim against a local health board, will help protect vulnerable people bringing legal claims says Leigh Day solicitor Sarah Westoby, who represented the Official Solicitor in her intervention in the appeal.

The child, referred to as PMC, was born in 2012 in a hospital owned by the local health board, the defendant in the case.

It was admitted that medical negligence led to the child developing cerebral palsy. After birth, he developed a large intraventricular haemorrhage as a result of asphyxia prior to birth and during labour, which led to his cerebral palsy. He was profoundly damaged and relied on others for his care and day to day needs. Now 13, he brought a claim in medical negligence against the hospital through a litigation friend. The defendant admitted liability in 2016, and a hearing to decide how much compensation he should be given was scheduled for 10 days in December 2025.

An application was made to the court for an anonymity order that would mean the child could not be identified in the press.

However, the story had already attracted media coverage and in a judgment of the High Court in November 2024, Mr Justice Nicklin refused the application for anonymity. He said there was no legal basis to grant the order, and the evidence did not support it because the press had already published articles about the claimant which were in the public domain. An appeal against the ruling was lodged by the claimant. Due to the importance of the issues raised in the case and ramifications for children and vulnerable adults, the Official Solicitor intervened, supporting the appeal made by the claimant. The Official Solicitor instructed Sarah Westoby to act in conjunction with her in-house lawyer, Helen Wood, and counsel Katie Scott and Fiona Paterson KC, both of 39 Essex Chambers in the intervention.

The Official Solicitor is an independent statutory office holder appointed by the Lord Chancellor.  One of the main purposes of the office is to prevent injustice to the vulnerable. One of the Official Solicitor’s primary functions is to act as litigation friend of last resort to children and vulnerable adults, making her very well placed to provide both evidence and submissions to the Court on the impact of the High Court’s judgment on those she acts for.

At a first hearing in the Court of Appeal in February 2025, the matter was adjourned to July 2025, pending handing down of the judgment in Abbasi of the Supreme Court in April 2025, which, it was anticipated, would likely provide guidance on the issues in this appeal. The Court of Appeal heard submissions from the parties and interveners during the two day hearing on 22 and 23 July 2025. The Official Solicitor made submissions on the practical consequences to those she represents of the High Court judgment and invited the Court to provide practical guidance regarding the evidence required by a vulnerable claimant seeking anonymity.

In a judgment handed down on 28 August 2025, the Court of Appeal allowed the appeal, overturning Mr Justice Nicklin’s ruling of November 2024.  Sir Geoffrey Vos, Master of the Rolls, noted the appeal raised “important issues as to the jurisdictional foundation for the principle of open justice and derogations from that principle”.

The judgment confirmed there is a limited common law power to make an exception to the principle of open justice by making, within court proceedings, an anonymity order, where such an order was strictly necessary in the interests of justice. Importantly, for the individuals for whom the Official Solicitor acts, the judgment confirmed, “there were clear indications in the authorities that the common law power to derogate from the open justice principle in the course of proceedings could be deployed to protect the interests of vulnerable parties”.

The Court of Appeal approved what Mr Justice Nicklin said about open justice, that “the Court must start from the position that very substantial weight must be accorded to open justice”.  However, the Court held that the 2015 case of JX MX v Dartford remained good law and that the judge had not been right to criticise this judgment, giving helpful guidance which will provide clarity and assistance to children and vulnerable adults and their legal representatives in future applications for anonymity.

Human rights solicitor Sarah Westoby said:

“I frequently represent children and vulnerable adults, often through a litigation friend such as the Official Solicitor, in civil litigation proceedings. These are typically very sensitive matters, concerning extremely vulnerable claimants in serious cases involving their highly personal information, including medical information, family circumstances and financial matters.

“The clear guidance of the Court of Appeal in this case is very welcome as it will provide reassurance to vulnerable claimants and their litigation friends that their highly personal details will not be linked to them as identified individuals in the press.

“This is an important judgment which provides welcome clarity and guidance for practitioners, and reassurance for the most vulnerable.”