Moving goalposts in the right to remain anonymous | Fieldfisher
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Moving goalposts in the right to remain anonymous

Mark Bowman
In the ongoing battle between what constitutes public interest versus the right we all have to a private life, the ground shifted slightly this week as the courts ruled in favour of the press and its right to report on an acrimonious divorce case.

53-year-old Tina Norman is fighting her banker ex-husband over the financial details of their divorce, something she argued were private.

Several media organisations following the case, including the Times, the Mail, Telegraph and Sky, challenged the initial anonymity order, claiming it would have a dangerous effect on the reporting of divorce appeals. Three Court of Appeal judges agreed and refused to impose any further order of anonymity, allowing Mrs Norman and her ex-husband to be named.

The barrister for the media organisations said that the judges had to weigh the competing principles of the right to privacy against freedom of information and open justice, on which the law in this country is based.

Two years ago, I worked on what became a landmark case in ensuring that courts routinely allowed claimants in personal injury and medical negligence cases to remain anonymous, unless the press could provide good reason why that person should be identified.

My case, JxMx, involved a young girl left severely brain damaged as a result of negligent treatment at the time of her birth at the Darent Valley Hospital. She suffers from four limbed cerebral palsy and will need 24/7 care for the rest of her life. 

The settlement of more than £10m also recognised that she needs specialist equipment and treatment and to live in an adapted house to be able to get the very best from her life, which was catastrophically altered by a medical mistake.

The argument against anonymity is based on this principle of open justice - that the public has a right to know the details of cases heard in a public court, particularly when they involve public bodies such as NHS trusts. In the past, however, practices in the courts in the UK vary and it has always been something of a lottery as to whether a claimant will be awarded anonymity either during the course of the litigation or at the conclusion of the case, typically at an approval hearing.

The argument for anonymity is the JxMx case fairly obvious. A young child, particularly a vulnerable child, awarded a substantial sum of money needs to be protected against unwanted attention and even the danger of criminal intent, such as kidnapping, robbery, assault, etc. The same must also apply to a vulnerable adult.

Initially, anonymity was refused in JxMx, with judges citing the often used principle that there were no specific reasons why it should be granted. But we were allowed the right to appeal, and won, with the Court of Appeal judgement instigating that a new approach will be taken in these types of cases. 

The judges reasoned that, although approval hearings lie within the scope of the principle of open justice, there was "force in the argument that in the pursuit of open justice the court should be more willing to recognise a need to protect the interests of claimants who are children and protected parties, including their right and that of their families to respect for their privacy." The court also recognised that "public interest may usually be served without the need for disclosure of the claimant's identity."

I think most people accept that children like JxMx deserve all the protection the courts can give them. But when it comes to capable adults and their right to anonymity, the ground is much more muddied.

Former Manchester United striker Ryan Giggs this week won a gagging order preventing the reporting of the financial deal he agrees with his wife in their ongoing divorce proceedings.

Hearing the appeal, Mr Justice Cobb agreed a wide-ranging order covering all media, including newspapers, magazine, websites, social networking sites and all radio and television broadcasts. He did, however, allow publication of the names of the parties and "the fact that they are engaged in financial remedy proceeding".

Clearly, upholding the principle of transparency in legal proceedings is vital. But, particularly in the case of celebrity stories or those that generate strong public interest, the impact of social media and global news reporting make it increasingly difficult to uphold a person's right to privacy.

I believe when it comes to protecting vulnerable children, our case with JxMx has established solid foundations for the right to remain anonymous. But it looks likely that the courts will increasingly have to judge cases such as the Normans and the Giggs on an individual basis when the press evokes its right to protect the public's right to information.