Anonymity applications will not simply be ‘nodded through’ by a Judge if the media has not been given advance notice and an opportunity to respond, writes Gemma Todd of Foot Anstey.

As promised, this is the third in the series of our anonymity articles – advance warning on anonymity applications.

In the recent High Court case between Justyna Zeromska-Smith and United Lincolnshire Hospitals NHS Trust (ULH), the Judge, Mr Justice Martin Spencer, really took a look at applications for anonymity, the timing of the application and the media’s right to be able to respond to such applications.

In this case, Mrs Zeromska-Smith was bringing a claim against ULH for compensation for psychiatric injury following the still-birth of her daughter. The trial was due to start on 22 February 2019 and Mrs Zeromska-Smith made an application for anonymity on 25 February 2019.  At the time the application was made, only one court reporter was present. The Judge ‘parked’ the application and ordered that PA be served with the application so that it had an opportunity to respond should it wish to do so – it did.

The application was made on the basis that it was the type of case that would be bound to attract publicity. Mrs Zeromska-Smith’s lawyers said that she suffered from disabling separation anxiety in relation to her two sons and the claim had already had a substantial impact on them and had also put pressure on her marriage which they claimed would worsen if her identity was made public. Mrs Zeromska-Smith claimed that the principle of open justice and the public interest could be served by simply naming ULH – who took no issue with this or with the application in general. Mrs Zeromska-Smith took the stance that the public didn’t need to know her name, particularly given the personal and private nature of the claim which would involve details about her mental health, her relationship with her children, and her intimate medical history (which included suicidal thoughts).

The application was served on PA which almost immediately submitted written submissions to the Court. It opposed the application arguing that, whilst it appreciated Mrs Zeromska-Smith’s rights under Article 8, these had to be weighed up with PA’s rights under Article 10 (that age old debate!). PA reminded the Court that, where somebody who is seeking an anonymity order is not a protected party (i.e. a child / vulnerable adult) an order should only be made in exceptional circumstances – which was not this case. PA also reiterated that it is a signatory to IPSO and many of the concerns that had been raised by Mrs Zeromska-Smith could be satisfied by PA’s obligations under the Editors’ Code (e.g. the obligations relating to privacy, children, suicide and intrusion into grief or shock). The Judge agreed.

The Judge reiterated the fundamental principle of open justice and the two exceptions to that principle – cases involving “wards of court or lunatics” (the Judge was quoting from a case decided in 1913) and cases involving a secret process. This case involved neither.

More importantly, the Judge addressed the rights of the press to accurately report details of cases heard in public. He referred to an earlier decision which echoes the fact that journalists usually look for a story about how particular individuals are affected. If the press were prevented from naming the parties in a claim, this would result in stories that were devoid of human interest and would potentially not be read, consequently threatening the viability of newspapers and magazines. Being able to identify the people involved gives a more vivid and compelling account.

The Judge saw no powerful reason to make the anonymity order. He stated that Mrs Zeromska-Smith had chosen to bring the proceedings in order to seek compensation and she could not avoid the associated consequences.

In particular, the Judge addressed the timing of the application and the press’ rights. The application had been made at the start of the trial without any notice to PA which put the court reporter in an awkward position. The ULH took a neutral stance but the Judge stated that this does not have any bearing on whether an order would be made. Parties cannot expect a judge to simply ‘nod through’ an application just because a defendant doesn’t take a view. The principle of open justice is absolutely imperative and any applications for anonymity must be made well in advance of the trial and served on PA in order to allow it time (and the opportunity) to consider any application properly and respond if it wishes to do so.

No more Mr-Nod-It-Through-Judge!  A win for freedom of expression!