Reporting Financial Remedy Cases: What Next for the Desert Island?

January 18, 2022 Posted by: Leave your thoughts

A guest blog by Adam Wolanski QC

To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement”. So said Mostyn J in the 2015 financial remedies case involving outspoken Oasis frontman Liam Gallagher: Appleton v Gallagher [2015] EWHC 2689 (Fam).

Seriously messy though the law may have been, that judgment provided encouragement for those seeking privacy in financial remedy proceedings. The judge explained that the rule change in 2009 which permitted journalists to attend hearings in most family proceedings “was not intended to abrogate” the “core privacy” which was provided by the law to participants in such cases. Applications for permission to report these cases would not be easy: “the press have to justify why the core privacy maintained and endorsed by Parliament should be breached” said the judge. “The privacy side of the scales starts with heavy weights on it”.

So it came as a surprise to some to read two recent judgments from the same judge in which he explained “I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment”; and in which he signalled that from now on reliance on the convention of anonymisation of financial remedy judgments should be abandoned. Family courts could, said the judge, no longer operate on their “desert island” where the legal principle of open justice was diluted.

Coinciding with the release of these judgments was the announcement of a consultation on a proposal to enhance the transparency of financial remedy proceedings. The proposal was co-authored by the very same Mostyn J and issued with the authority of the President of the Family Division. This included a draft ‘standard reporting permission order’ for use in such proceedings which would significantly increase the extent to which the media could report such cases. The outcome of the consultation is awaited.

The message is clear: it is no longer safe to assume that judgments in financial remedy proceedings will remain anonymised. And it may not be long before participants in such cases find the press reporting in detail what takes place during hearings. Major change may be on its way.

The two judgments

BT v CU [2021] EWFC 87 was a case dealing with whether the impact of Covid on a husband’s finances was cause to vary a pre-existing financial order. At the conclusion of the case Mostyn J considered an application to anonymise the husband and wife involved in his judgment.

The judge pointed out that the application before him was not the wife’s application for financial remedies. It was the husband’s application to set aside parts of the final order made on the wife’s primary application. Therefore none of the husband’s evidence in support of his application had been disclosed under compulsion. All of that evidence was volunteered by him. This was important since the protection from disclosure afforded by the common law to evidence disclosed under compulsion did not apply.

Mostyn J accepted, with reference to the Court of Appeal case of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79], that the current convention is that a judgment on a financial remedy application should be anonymised, although the decision whether to do so reposes in the discretion of the individual judge. However he questioned why this should be. Many types of civil litigation involve intrusion into the parties’ private lives. Yet, he observed, judgments in those cases are almost invariably given without anonymisation.

He explained that old assumptions about the privacy afforded to litigants in financial remedy cases were “another example of the Family Court occupying a legal Alsatia” ( Richardson v Richardson [2011] EWCA Civ 79, [2011] 2 FLR 244, para 53 , per Munby LJ), or “a desert island in which general legal concepts are suspended or mean something different” ( Prest v Petrodel Resources Ltd and others [2013] UKSC 34, [2013] 2 AC 415, para 37 , per Lord Sumption). This was particularly so given that almost all financial remedy judgments of the Court of Appeal are given in full without anonymisation.

The judge also rejected the application to prevent company details from being published in the judgment. He said there was no sufficient evidential basis for the assertion that the company’s financial interests would be damaged by publicity. He noted that a judgment on a petition under s. 994 of the Companies Act 2006 would likely contain much information about the company of interest to its competitors, but that any anonymity application would be very likely rejected.

Despite all this, the application for anonymisation in BT v CU succeeded.  This was because identifying the wife would inevitably be picked up at the children’s school where she teaches, leading to a detrimental impact on the children’s welfare. He also accepted that the parties in this case had come to the hearing with a reasonable expectation that the hearing would preserve their anonymity, and that it would therefore be unfair for him to spring this change of practice on these parties without forewarning.

However, he signalled that from now on reliance on the convention of anonymisation of financial remedy judgments should be abandoned.

Shortly after this decision, the same judge dealt with a similar application in the financial remedies case A v M [2021] EWFC 89. Again, he granted the request for anonymisation of the judgment, noting that  the parties approached the hearing in the confident expectation that journalists would not attend and that the judgment would be anonymised. But he repeated his warning that in future parties could no longer expect their identities to be kept secret if their case came to court.

In A v M he explored what he referred to the “misconception” that there was an established right to anonymity in financial remedy judgments. He pointed out that until recently there was no anonymity in the Probate Divorce and Admiralty Division, children and nullity cases apart, and even then only sometimes. As the House of Lords made clear in the seminal judgment of Scott v Scott [1913] AC 417 , even in nullity cases a general rule that they should be heard in camera was unlawful. That case made clear that “… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”

In the light of these principles it was, he said, “difficult to understand” how the practice of  routinely anonymising judgments had come about. It appears to have originated in the provisions in the Matrimonial Causes Rules (‘MCR’) that made the Registrar the usual first instance judge and provided that matters referred to the Registrar should be default take place in chambers. But whatever the reason for it, the practice has, according to the judge, had its day.

Where do these judgments leave us?

The two judgments only address the issue of anonymisation of judgments.  Parties can no longer confidently anticipate that they will be anonymised in public judgments. This may lead to difficult questions about the extent to which the public judgments should include sensitive and intimate matters, publication of which could interfere with the parties’ privacy rights. This is something which civil courts, particularly in privacy cases, have had to deal with for some time. There it is not unusual for there to be two judgments: a public one, which includes all the legal submissions and much of the factual detail; and a confidential one, which includes matters which the court deems should be withheld from the public. There may be strong arguments for adopting a similar practice in some financial remedy judgments.

However neither BT v CU not A v M address the different question of what can be reported from cases as they proceed. The law on this topic is not straightforward: see Cooper-Hohn v. Hohn [2014] EWHC 2314 (Fam). Judicial opinion continues to differ on whether such financial proceedings are covered by the Judicial Proceedings (Regulation of Reports) Act 1926, s 1, which makes it unlawful to publish any information relating to matrimonial or civil partnership proceedings other than certain statutory exceptions. What is however clear is that the prohibition on publishing matters derived from compulsory disclosure given by the parties is, for now, a significant fetter on the press’s ability to report financial remedy cases.

Transparency of financial remedy proceedings: the consultation

The President of the Family Division has made clear his desire to increase transparency in the family courts. As he has explained in his recent paper Confidence and Confidentiality: Transparency in the Family Courts, he considers that “The present system in the Family Courts whereby a journalist may attend any hearing but may not always report what they observe, is not sustainable”. The President has “reached the conclusion that there needs to be a major shift in culture and process to increase the transparency in a number of respects.”

A key aspect of the proposed reform is the reversal of the presumption that the press cannot report what they see and hear in court. In their draft ‘standard reporting permission order’ for use in financial remedy proceedings Mostyn J and HHJ Hess set out a regime which permits the reporting of certain matters said and done in court, including the parties’ names and quotations from any documents filed in the proceedings including witness statements, replies to questionnaire, voluntary disclosure and position statements. The right to report would also cover the oral evidence of witnesses, the submissions of the advocates and the open proposals made by the parties. It would entitle the press to report “a broad description of the types and amounts of the assets, liabilities, income, and other financial resources of the parties, without identifying the actual items, or where they are sited, or by whom they are held”. It would also enable the reporting of “a broad description of the open proposals of the parties giving only the monetary value of the proposals and without identifying actual items”.

In the draft standard order, journalists are given the right to obtain from the parties’ documents “necessary to enable the journalist/legal blogger to comprehend the factual, evidential or legal issues in the proceedings”.

The proposals preserve the power of the court to withhold from the press documentation, and restrict reporting, if that is necessary on the facts of the case. Moreover there would be a prohibition on publishing material which identifies children.

The proposed changes are far reaching. Although they maintain in part the prohibition on publishing a party’s financial information given under compulsion, they permit much financial information to be published which, under the current law, would have been likely to be kept confidential. And while the proposed rules do not provide the media with a right similar to that they enjoy in civil proceedings to gain access statements of case and witness statements, they do permit media access potentially to a very wide range of documents.

What next?

The move to name parties in judgments in financial remedy proceedings has come as a shock to some practitioners in this field who are accustomed to cases being conducted in privacy. But this may well be just the beginning of a major shift in the culture of the family courts. If the proposed new rules are brought into effect, the change will be radical. The desert island may be no more.

Adam Wolanski QC is a barrister at 5RB specialising in media law. He has appeared in many of the main cases concerning media reporting and privacy in family cases, including Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 and Cooper-Hohn v. Hohn [2014] EWHC 2314 (Fam).