Valerie Eliot Smith is a non-practising barrister and Visiting Scholar at the Centre for Commercial Law Studies, Queen Mary University of London. In a piece written for The International Forum for Responsible Media Blog she argues that in the case of a Polish woman, Justyna, who was forced to give birth to a stillborn child, is an example of a failure to apply that proportionality test, causing immense suffering to the individuals involved.
23 May 2019
On the 8 March 2019, interim judgment was handed down in the apparently unremarkable case of Justyna Zeromska-Smith v United Lincolnshire Hospital Trust  EWHC 552(QB). The decision appears to have been based on the following reasoning:
This reasoning is not only flawed but it also caused – and will continue to cause - enormous unnecessary suffering to the claimant and her family.
The claimant, Justyna, is a Polish national who came to London in 2004. She married a British man in 2007 and they moved to Lincolnshire. In 2012, she became pregnant. The couple were overjoyed and prepared for the birth of their daughter, Megan. However, all did not go well and in May 2013, labour was induced, ten days after the due date. It transpired that Megan had died in utero but an eighteen-hour labour had to proceed for Justyna to give birth to the couple’s stillborn daughter. She was discharged from hospital on 28 May 2013, the day after the birth.
In the fullness of time, Justyna and her husband were able to have two sons, in 2015 and 2018. It appears to be accepted within the judgment that she continued to need psychiatric treatment for various issues as a direct result of the trauma and grief of Megan’s stillbirth. These issues had a negative impact on her relationship with both her husband and her sons as a consequence of her experience of the stillbirth.
Justyna’s life was forever changed, as often happens following deeply traumatic life events; it appears to have become an existence lived necessarily in the shadows. According to the judgment, counsel Susan Rodway QC, argued the following:
“Personal privacy is said to be all important to the Claimant such that she changed jobs because her work colleagues were aware of the stillbirth of the Claimant's daughter and she then concealed this background from her new employers and work colleagues. She avoids interaction with strangers.”
The defendant (“the Trust”) admitted liability for the stillbirth and conceded that Justyna was entitled to damages to represent her loss arising from the unsuccessful conclusion of her pregnancy. The judgment then goes on to say: “However, the Claimant also seeks substantial damages for what is claimed to be a pathological grief reaction combined with depression, which has proved intractable.” It appears that this was the sole disputed issue between the parties.
As Ms Rodway pointed out, personal privacy had become essential to Justyna’s survival in coping with the continuing trauma of her circumstances. Mr Justice Martin Spencer summarises the events leading to his decision on that matter in the first paragraph of his judgment:
“The trial was listed to start on Friday, 22 February 2019 and Miss Rodway QC indicated that she would be making the anonymity application. The application was made on Monday, 25 February 2019 but I "parked" the application to enable the Press Association to be served with the notice. On 26 February, I received submissions in writing from the Press Association and Miss Rodway resumed her application. Having heard argument, I refused the application and these are the reasons for that decision.”
The Trust took a neutral stance on the application. The Press Association – unsurprisingly - opposed it.
The application can be summarised in the following extracts from the judgment:
“The claim has already had a substantial impact on the Claimant's children and has put a significant amount of added pressure on the Claimant's marriage. There is also a definite risk of suicide. Having to relive and discuss such painful past events and for those events to be shared with the public in such a way that the family can be identified will be very difficult and could easily lead to irreparable damage to the family unit. This risk of interference with private family life, which is self-evident, can be alleviated with the making of an anonymity order.
Part of the Claimant's objective for bringing an action against the Defendant was to try and achieve justice for what has happened and to ensure the Defendant is held accountable for the mistakes that have been made. However, I would respectfully argue that the public interest can be served without the need for disclosure of the Claimant's identity."
“Miss Rodway QC, who represents the Claimant, has argued that the principle of open justice is satisfied by the Defendant being identified without identification of the Claimant. She submits that the trial includes matters of a deeply personal and private nature concerning the Claimant's mental health, her relationship with her two children, her intimate medical history and her past suicidal ideation which included thoughts of ending her life as well as that of her son. Although she is not a protected party [ie. lacking capacity under the 2005 Mental Health Act], she is described as a "highly vulnerable individual" and the interests of her young children should, it is submitted, be weighed in the balance. It is submitted that publication of the Claimant's identity will serve no useful public purpose but will risk considerable further harm to the Claimant's already precarious mental health and harm to her children and family.”
The following points were also submitted in support of the application:
It is important to note that the application did not include a request that the proceedings be held in private, only that the anonymity of Justyna and her family be preserved. There was no attempt to prevent the case from being reported generally.
Justyna is described by Ms Rodway as a “highly vulnerable individual” because of her traumatic experience and need for psychiatric treatment. She was not strictly speaking a “protected party” (ie. a child or someone lacking capacity under the Mental Health Act 2005) and thereby entitled to anonymity as of right. Nevertheless, by virtue of the necessity for psychiatric treatment alone, her circumstances amounted to those of someone who could be treated as being in a similar category to a “protected party” and therefore entitled to the same protection.
The entire history of Justyna’s medical treatment as laid out before the court (and therefore also the public, in due course) is highly sensitive personal information. It is therefore arguable that the court could have taken a view in line with the fundamental principles of data protection and accepted the existence of a confidentiality imperative in these circumstances.
The court does not appear to have properly considered the interests of the children involved in this case. Whilst they were not parties to the action, their lives would be directly affected by the outcome of this application. If their mother was identified then they would automatically also become identifiable.
There is a strong body of case law in support of preserving the rights of children who could, through no fault of their own, become identifiable as a result of the involvement of one/both of their parents in legal action. These cases range from ZH (Tanzania) v SSHD  UKSC 4 (an immigration case) and ETK v News Group Newspapers Ltd  EWCA Civ 439 through to PJS v News Group Newspapers Ltd  UKSC 26. ETK and PJS involved applications for a privacy injunction by celebrity parents relating to allegations of private and sexual behaviour which the then News of the World (ETK) and The Sun (PJS) newspapers wished to publish.
In all three cases, the balancing act between the Article 8 rights of the children of the parents involved and Article 10 rights of the media came down in favour of the children’s right to protection of their private and family lives. In ZH (Tanzania), Baroness Hale stated:
“the best interests of the child must be a primary consideration. This means that they must be considered first.”
In ETK, the Court of Appeal invoked the provisions of the UN Convention of the Rights of the Child 1989 and Article 24 of the European Union’s Charter of Fundamental Rights.
Article 3(1) of the UNCRC provides that:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
Whilst this is a complex and often contentious area of law, it is hard to see how the blameless circumstances of both Justyna and her children could not have justified the upholding of their fundamental right to privacy. In any consequent proportionality test, the argument in support of the children’s rights is compelling and should far outweigh the imputed public interest in making them identifiable
The Press Association’s formulaic response in opposing the application acknowledged that the claimant’s Article 8 rights were engaged but should be weighed against the media’s Article 10 rights. The argument maintained that as the claimant was not a protected party then the circumstances of her case were not sufficiently exceptional to merit the granting of an anonymity order.
The Press Association invoked the Independent Press Standards Organisation (IPSO) Code of Conduct to assert that:
“[M]any of the concerns raised by the application could be met by our responsibilities under that code, particularly those sections of the guidance relating to privacy, children, suicide and intrusion into grief or shock.
…It is also submitted that many of the details of the case, especially those of a sensitive nature, would not necessarily need to be made public. Some parts of the evidence could, for example, be heard in private or protected by reporting restrictions."
These assertions could be argued back and forth depending on your point of view. However, suffice it to say that the safest way to preserve the undisputed “sensitive nature” of this case would have been to accede to the request for anonymity. It is hard to see any other method of ensuring that those sections of the Editors’ Code would be observed unequivocally. In any event, many publishers do not observe the Code, social media being a prime example.
The judge then moved on to discuss the fundamental principle of open justice in Scott v Scott  UKHL 2 and the provisions of the Civil Procedure Rules (recently updated, not affecting this post), in particular:
“Rule 39.2(3) provides:
"A hearing, or any part of it, may be in private if … (d) a private hearing is necessary to protect the interests of any child or protected party; or … (g) the court considers this to be necessary in the interests of justice."
CPR Rule 39.2(4) provides:
"The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."
Again, there was ample room for discretion in granting this application for anonymity but, instead, the judge chose to quote from In re Guardian News
and Media Ltd  2 AC 697 at 723 in formulating the reasoning behind his decision:
“What's in a name? 'A lot', the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature…..[T]he European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed … The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. (my emphasis) A requirement to report it in some austere, abstract form, devoid of much of its human interest, could well mean that the report would not be read and the information would not be passed on. Ultimately, such an approach could threaten the viability of newspapers and magazines, which can only inform the public if they attract enough readers and make enough money to survive.”
The judge then underpinned this approach by considering the case of In re S 1 AC 593 where the identification of a parent – and therefore that of the children involved – was allowed. However, this case concerned a criminal matter – and the Guardian News and Media case related to suspected terrorist-related activity - so different public interest considerations apply. It is therefore arguable that neither of these cases is necessarily persuasive in relation to the particular circumstances of Justyna’s case.
Both In re S and the Guardian News and Media have a further distinguishing feature which was not considered by the judge, although it was raised by counsel for Justyna in her argument. The facts and original reporting of In re S occurred in an era which predates social media. The Guardian case is from 2010 and it is arguable that even at that time, the pervasive, sometimes inaccurate and often detrimental nature of social media reporting was not yet fully appreciated. This potential threat to Justyna and her family was raised as a serious consideration by counsel but the judge remained unpersuaded.
The judge continued a consideration of later cases by reviewing JXMX v Dartford and Gravesham NHS Trust  EWCA Civ 96 and ABC v St George’s Healthcare Trust  EWHC 1394 (QB). In both cases, the applications for non-identification were granted but the judge distinguished Justyna’s case on the following grounds:
“In the present case, the revelation of the matters personal to this claimant and her family are inherent and intrinsic to a claim of this nature, relating as it is to psychiatric injury suffered by the Claimant from the stillbirth of her daughter. Having chosen to bring these proceedings in order to secure damages arising out of that tragedy, the Claimant cannot avoid the consequences of having made that decision in terms of the principle of open justice and the consequent publicity potentially associated with such proceedings being heard in open court.”
How and why the “inherent and intrinsic” nature of this claim differed from the other two cases remains unclear. Of course, each case is fact-specific but the fundamental issue of achieving the correct balance between the case for identifying vulnerable individuals against the wider “need to know” of the public remains at their heart.
In his final explanatory paragraph, the judge expressed his disapproval concerning the lack of notice given for the anonymity application to be made at the start of the trial. The reasons for this are not known but the normal route for any punitive action would be via an order for costs. It is to be hoped that, in this instance, Justyna was not being further penalised for that lack of notice and thereby losing her right to anonymity.
Of even greater concern is this section:
“[T]he outcome of the application may inform any decision taken by a Claimant in relation to settlement. Thus, if a Claimant in a sensitive case such as the present knows that, if the matter goes to trial, her name will be published in the press, she may consider that to be an important factor in deciding whether or not to accept an offer of settlement – in some cases it could tip the balance.”
Here, the judge seems to be suggesting that claimants in this type of action may need to gamble on relinquishing their right to privacy in exchange for the right to contest a low settlement offer - regardless of whether or not a higher award of damages is actually merited. Such an approach would be inequitable - and deeply chilling.
The publicity following this decision was, in fact, relatively low-key and is mostly to be found in legal and media themed blogs. However, the Daily Mail published a splash (pictured above) focusing on the claim for six million pounds in damages. A recent post on Hold the Front Page called it “A win for the media”.
Note: I have not carried out a social media search regarding this case.
To extrapolate a fully-formed feminist argument from analysing this judgment might be stretching the point. Nevertheless, it is undeniable that the series of events which led to it emanated from an event which, at this point in time, can only relate to the biological and psychological experience of a woman (giving birth to a stillborn child) and its long-term consequences.
The tone of this judgment, particularly in its concluding paragraphs, suggests a pre-formed opinion regarding the appropriate behaviour of women in such circumstances rather than a balanced and objective evaluation of the arguments and evidence presented.
The subject of this case is a woman who experienced a deeply traumatic event. There was ample justification for retaining both her anonymity and that of her family. Instead, the retraumatising effect of giving evidence in the glare of publicity and publication of the judgment itself will have compounded the trauma she had already experienced. This will, in turn, be prolonged by the subsequent reporting of her case – all in the name of a spurious “public interest”.
We will never know if another judge would have made a different decision and elected to employ the perfectly legitimate legal process by which Justyna’s privacy and dignity could have been preserved. The legal argument might have been the same whoever the judge was - and therefore so could the outcome. However, the question of whether another judge might have arrived at a different conclusion hangs over this case.
The requirement for open justice in the English legal system remains paramount; freedom of expression is indisputably a fundamental right in any functioning democracy. However, it is not an unqualified right and must be balanced against other fundamental rights - in particular the right to private and family life - as part of a dynamic proportionality test. Increasingly, this has become the overarching ethos of the courts in order to perform the dual function of maintaining open justice whilst also protecting the interests of vulnerable individuals.
Inevitably, this pragmatic and compassionate approach, combining as it does the competing interests of transparency and sensitivity, can often lead to misunderstandings and misreporting, as is frequently demonstrated in the work of The Transparency Project.
The case of Justyna appears to be an example of a failure to apply that proportionality test, a failure which must have caused immense suffering to the individuals involved. A different result would have been justifiable and desirable. It would also have greatly reduced the inevitable extreme distress experienced by Justyna and her family.
For whatever reason, the decision is not being appealed. Nevertheless, the damage it has caused can never be undone and its reasoning will now remain unchallenged in a higher court.
This opinion piece was written by Valerie Eliot Smith and was originally published in The International Forum for Responsible Media Blog on 11 May 2019.
For media information, contact:Paul Jordan