High Court Guidance on "Non-Identification" Orders in Civil Proceedings Including Medical Negligence Claims
A recent decision of the High Court illustrates the use of non-identification orders under the Civil Law (Miscellaneous Provisions) Act 2008

 

In M.L and Anor v and KA v T.Q. & Ors [2019] IEHC 220, a recent decision of the High Court,  Mr Justice Keane made an order under Section of 27 Civil Law (Miscellaneous Provisions) Act 2008, ("2008 Act")  and this decision illustrates the steps taken by the Court to give practical effect to non-identification orders under this section. 

Section 27 of the 2008 Act prohibits the publication or broadcast of any matter relating to any civil proceedings which would, or would be likely to, identify a relevant person as having a medical condition. The order is designed to bring about anonymity for the person in relation to their medical condition.

The order can be sought by any party to civil proceedings, thus it is not limited to personal injury claims including medical negligence claims. A "relevant person" is a party to the proceedings or a person called or proposed to be called to give evidence in the proceedings.

Orders under this section were, until very recently, extremely rare. Indeed, many legal practitioners may not have encountered them before recent "CervicalCheck" claims, within which a number have been made.

Section 27 of the 2008 Act provides the court shall grant the order only if satisfied that:

  1. the relevant person has a medical condition and
  2. his or her identification as a person with that condition would be likely to "cause undue stress" to him or her and
  3. the order would not be prejudicial to the interests of justice. 

Breach of the order is an offence and on conviction on indictment a fine not exceeding €25,000 or imprisonment not exceeding 3 years, or both, can be imposed. It is a defence to prove at the time of the breach that the person was not aware, and neither suspected nor had any reason to suspect, that the publication or broadcast concerned was to identify the relevant person as having a medical condition.

In this case Keane J. granted an order under this section, on the application of plaintiffs' counsel. Following the order references to certain details of  the case were removed from the  High Court search area of the courts website. In his written judgment random initials were assigned to all the parties to the proceedings, not just the plaintiffs. This was as the defendants "as might be expected" practice and operate in the part of the State where the plaintiffs live. There was therefore a risk that identifying the defendants could lead to identification of the plaintiffs through "jigsaw identification" whereby a person's identity may be deduced from a combination of incidental personal details.

 

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