Administrative and Public Clinical Negligence and Personal Injury

Five Members of 39 Essex Chambers Involved in Landmark Appeal Re (PMC) v A Local Health Board [2025] EWCA Civ 1126

2nd September 2025

The Court of Appeal have allowed an appeal by a brain-injured claimant, PMC, against Nicklin J’s refusal to make an anonymity order, during proceedings against the Health Board, responsible for his injuries – [2024] EWHC 2969 (QB).

The implications of the judgment for claimants seeking anonymity orders, were twofold. First, relying on the fact that a claimant’s name was in the public domain, from the start of proceedings, Nicklin J inferred that a claimant’s chances of securing an order decreased significantly after the claim form had been issued. And second, it was doubtful whether JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, (Dartford) remained good law. For the previous ten years, the guidance in Dartford had underpinned the widely accepted practice of granting anonymity orders to children and protected parties ahead of or at approval hearings. Consequently, Nicklin J’s judgment represented a significant departure from accepted practice.

Recognising the complexity and significance of PMC’s appeal, the Master of the Rolls allowed interventions by the Official Solicitor and PIBA (Personal Injuries Bar Association) and appointed an Advocate to the Court. The appeal was initially adjourned, pending the Supreme Court handing down judgment in Re Abbasi [2025] UKSC 15, in which it was anticipated that guidance would be given on the jurisdictional basis for anonymity orders and how individuals’ privacy rights should be weighed against the need for open justice.

Three months after the Supreme Court handed down judgment, in Re Abbasi the Court heard PMC’s appeal and handed down a comprehensive judgment shortly afterwards.

The Master of the Rolls acknowledged that the appeal raised “important issues as to the jurisdictional foundation for the principle of open justice and derogations from that principle” and went on to reach four key conclusions.

First, there is “a limited common law power to derogate from the principle of open justice in civil or family court proceedings by making, both a WO [withholding order, to withhold the name of a party or witness] and an RRO [reporting restrictions order, which restricted the reporting of material disclosed in the proceedings].” The anonymity order in question was a combination of a WO and an RRO. However, such orders are different from an equitable injunction, (now founded on section 37 of the Senior Courts Act 1981), against the world (as in Re Abbasi).

Second, much of Dartford remains good law. However, the Master of the Rolls suggested an application for an anonymity order be listed either “as ‘an application under CPR Part 21.10’ or by reference to a three-letter pseudonym…” rather than with the parties’ names, as had been suggested in Dartford.

Third, there was “no reason, as a matter of jurisdiction, why an AO [anonymity order] should not be made, relying either on the common law power, or section 11 [of the Contempt of Court Act 1981] even if the withholding order was not made at the beginning of the proceedings.” The Master of the Rolls disagreed with Lord Judge CJ’s obiter comments In Re Press Association [2012] EWCA Crim 2434, to the effect that it was a ‘pre-condition to the making of the order on the basis of section 11 [Contempt of Court Act] that the name of the defendant should have been withheld throughout the proceedings.’ Instead, he saw no reason why an anonymity order “should not be made, relying on either the common law power or section 11, even if a WO was not made at the beginning of the proceedings.”

Fourth and finally, the Master of the Rolls held that Nicklin J had been wrong to refuse PMC’s application for an anonymity order. The order could be prospective only, not retrospective because of the previous publicity which PMC’s case had attracted. This meant that the media organisations who had published stories about the claim, were not compelled to take down the material which had been published online.

In conclusion, the judgment should “bring much-needed clarity” to this area of the law, which as the Master of the Rolls acknowledged, has developed at a pace “over the first twenty-five years of this century.”

Nicola Greaney KC, instructed by the Government Legal Department and Fiona Paterson KC, instructed by Leigh Day appeared at the final hearing of the appeal for the Advocate to the Court and the Official Solicitor, respectively.

Nicola Kohn, Katie Scott and Emily Formby KC, instructed by Simpson Millar, represented the Advocate to the Court, the Official Solicitor and PIBA earlier in the proceedings.