Announcement: Financial Remedies Practice 2023/24

Published: 09/01/2023 12:33

The authors are presently writing the 2023/24 edition, which is expected to be published by Class Publishing in April 2023.

They have decided that the section of the Commentary on Part 27 concerning the applicability of the open justice principle to financial remedy proceedings (presently at §§27.89–27.159 of the current edition), needs to be rewritten from scratch. That work has now been completed.

The rewritten section contains a full analysis of the rules and case-law concerning open justice in the Financial Remedies Court, including the following matters not considered before:

  • the interrelationship between, and significance of, FPR 7.30 and CPR 39.2;
  • the decision in Executor of HRH Prince Philip, the Duke of Edinburgh (Deceased) & Anor v Guardian News and Media [2022] EWCA Civ 1081; and
  • Section 85A of the Courts Act 2003; the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705); and the Practice Guidance (Open Justice: Remote Observation of Hearings) [2022] 1 WLR 3538.

It is well-known that that on 11 February 2022 the President announced the formation of the FRC subgroup of the Transparency Implementation Group (see the current edition at §27.159). Its terms of reference1 are:

“to consider all aspects of Transparency as far as it concerns the work of the Financial Remedies Court and to report as to suggested ways forward.”

Its report is expected to be issued in February 2023, and will be highly influential in shaping how the principle of open justice is applied in financial remedy proceedings in the future.

The authors and publishers of FRP have therefore decided to publish the section now in order that the subgroup can consider the issues of law raised in it, and any reaction to it by commentators and the public generally, before reaching its conclusions.

Hon Mr Justice Mostyn

Lewis Marks KC
Gavin Smith
Henrietta Boyle
Henry Pritchard
9 January 2023

Replacement text for paras 27.89 et seq of 2022/23 Edition

Financial remedy proceedings and open justice

27.87. FPR Part 27 and PD 27A are silent about the principle of open justice.

27.88. The fundamental constitutional importance of open justice has been recognised in the United Kingdom down the ages. In 1843 Jeremy Bentham proclaimed that “publicity is the very soul of justice”. This was nothing new. In A v BBC [2015] AC 588 Lord Reed at [24] pointed out that over 300 years ago in Scotland the principle of open justice was even then regarded as so important that it was enshrined in the constitutional legislation passed there following the accession of William III and Mary II. Under the Court of Session Act 1693, the Scottish Parliament required all processes to be considered by the Lords of Session “with open doors … where all others are hereby allowed to be present”, but with power to “the said Lords to remove all [such other] persons except the parties and their procurators”. Earlier still, in The Winter’s Tale published in 1610, we find Leontes proclaiming at the Court of Justice (III:2):

“Let us be clear'd

Of being tyrannous, since we so openly

Proceed in justice, which shall have due course,

Even to the guilt or the purgation.”

27.89. The crucial importance of the principle cannot be overstated. Statements to that end echo through the history books and the law reports. In Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 at [16] the court said (in a financial remedy case), summarising these many statements:

“The rule of open justice is an ancient and deeply entrenched constitutional principle in this country and elsewhere in the common law world. It is a fundamental constituent of the concept of the rule of law. It is a core guarantee of the right to civil liberty. And, in the jurisprudence of the European Convention on Human Rights … it is one of the foundations of a modern democratic society.”

27.90. Yet there is an ingrained view that the principle of open justice either does not or should not apply to financial remedy proceedings. It is respectfully suggested that the present law, as correctly understood, requires the principle of open justice to be applied in financial remedy proceedings, and that primary legislation would be required to cloak such proceedings with a mantle of secrecy.

Application of the principle

27.91. In A v BBC at [27] Lord Reed stated:

“Since the principle of open justice is a constitutional principle to be found in the common law, it follows that it is for the courts to determine its ambit and its requirements, subject to any statutory provision. The courts therefore have an inherent jurisdiction to determine how the principle should be applied.”

27.92. In determining how the principle of open justice is to be applied the courts have consistently held that derogations can only be justified in exceptional circumstances. In Griffiths v Tickle & Ors [2021] EWCA Civ 1882 Dame Victoria Sharp PQBD stated at [35]:

“The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification.”

Thus, a core tenet is that any derogation, whether it be a reporting restriction order (“RRO”), or an order anonymising the proceedings or the judgment, requires strict justification in the individual case.

27.93. The application of the principle of open justice in financial remedy proceedings gives rise to intricate legal issues. Space does not permit a full analysis of them in this procedural guide. Since the last edition there have been significant developments in the case law and in the movement for reform. Readers should consult previous editions for a historical perspective.

27.94. The following cases are recommended as essential reading, at the very minimum, in order to understand the issues:

  1. Scott v Scott [1912] P 241, CA; [1913] AC 417, HL
  2. Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261
  3. Xanthopoulos v Rakshina [2022] EWFC 30
  4. Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52.

27.95. The latter two cases trace the extraordinary story of the waxing (in the late 19th century), the waning (in the early 20th century), and the waxing again (from the 1970s) of the culture of secrecy in financial remedy cases.

27.96. A distinction must be drawn between those financial remedy proceedings not covered by s.12 of the Administration of Justice Act 1960 (general financial remedy proceedings) and those (child maintenance proceedings) which are so covered.

General financial remedy proceedings.

27.97. These are financial remedy proceedings which do not fall within s.12(1)(a)(iii) of the Administration of Justice Act 1960. Caught are cases which relate wholly or mainly to the maintenance of a minor. Ignoring rare outliers, such proceedings are confined to original or variation applications under Schedule 1 of the Children Act 1989 or original or variation applications for child maintenance under section 23(1)(d)-(f)) of the Matrimonial Causes Act 1973 or under section 17(1)(a)(i) of the Matrimonial and Family Proceedings Act 1984. These cases are subjected to strict statutory secrecy.

27.98. The overwhelming majority of financial remedy proceedings are not caught by s.12 of the 1960 Act and are not thereby subjected to statutory secrecy.

Access to financial remedy proceedings (FPR 27.10, 27.11 and PD 27B)

27.99. By FPR 27.10 financial remedy proceedings are to be held in private. FPR 27.11(2)(f) and (ff) permit accredited journalists and authorised bloggers, but not other members of the public, to attend such private hearings.

27.100. PD 27B ¶¶4.1–4.3, ¶4A.1 and ¶¶5A.1–5A.3 specify with clarity the process by which journalists demonstrate their accreditation and bloggers their authorisation.

27.101. PD 27B ¶2.3 states that the provisions of the rules permitting the attendance of journalists and bloggers (“reporters”) do not entitle them to receive or peruse court documents referred to in the course of evidence, submissions or judgment without the permission of the court. This paragraph merely clarifies that such a reporter is subject to the terms of FPR 29.12 concerning access to court documents (see the Commentary on Part 29). PD 27B does not (and, it is suggested, could not) change the law of contempt so as to prevent a party from showing documents to a reporter covering the proceedings: see §27.113 below.

27.102. FPR 27.11(3), (4) and (5), and PD 27B ¶¶ 5.1–5.5 and ¶¶6.1–6.4 give the court power to exclude reporters from financial hearings either on application by a party or on the court’s own initiative. Such an order may be made where it is necessary in the interests of a child; or for the safety of a party, a witness or other connected person; or for the orderly conduct of the proceedings; or where justice would otherwise be impeded or prejudiced.

27.103. The rules and the practice direction do not explicitly address the right of reporters to publish a report of a hearing they are covering, although, as explained at §27.108 below, these exclusionary provisions implicitly recognise the right to do so. Nor do they address the freedom of the parties to speak to whomsoever they like about the proceedings: see §27.107 below.

Hearings in private are not secret hearings

27.104. From the start of the era of judicial divorce in 1858, proceedings were held in open court or in chambers “as if sitting in open court”. There was nothing in the various iterations of the governing statutes, or of the rules, to suggest that the proceedings were secret and could not be the subject of press reports: Xanthopoulos v Rakshina [2022] EWFC 30 at [88]–[98].

27.105. However, as explained in Scott v Scott [1913] AC 417, unlawful secret practices and procedures crept in and became commonplace. That iconic decision of the House of Lords exposed and extirpated these heresies and definitively established that the Divorce Court was governed by the same principles in respect of publicity as other courts. The decision further established that a proceeding in private (then referred to as a proceeding “in chambers”) has nothing to do with secrecy as to the facts of the case; it merely provides for privacy at the hearing. There is not “the slightest obligation of secrecy as to what passes in chambers” said Fletcher Moulton LJ in his famous Court of Appeal dissent, vindicated in the House of Lords.

27.106. 85 years later in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 at 1071 Lord Woolf MR stated to exactly the same effect:

“What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested”

27.107. There is nothing in FPR 27.10, 27.11 or PD 27B restricting reporters from reporting anything they see or hear at a hearing in general financial remedy proceedings, or preventing parties from talking to whomsoever they like (including reporters) about the case: see Xanthopoulos v Rakshina at [90].

27.108. In Xanthopoulos v Rakshina at [115] it was said that the right to report and the freedom to speak were confirmed by FPR 27.11(3)(b) which allows the court to make an order excluding a reporter so that justice is not "impeded or prejudiced". FPR PD 27B ¶5.4 cites a hearing where the court is considering confidential price sensitive information, exposure of which could affect the share price of a publicly quoted company, and suggests that an exclusionary order would be justified in such circumstances. Mostyn J held that this rule and this example are only explicable if the reporter present in court was entitled to report that information. The rule would be entirely otiose, indeed nonsensical, if the reporter was anyway barred from reporting what they heard.

27.109. This freedom to report is not constrained by the fact that some of the information has been provided by the parties compulsorily (see Xanthopoulos v Rakshina at [107]–[113], disagreeing with obiter dicta to the contrary in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261 (which was not a financial remedy case)).

27.110. On 28 June 2022 courts and tribunals were granted permanent powers to give directions permitting remote observation of hearings under the newly inserted s.85A of the Courts Act 2003, augmented by the Remote Observation and Recording (Courts and Tribunals) Regulations 2022 (SI 2022/705) and the Practice Guidance (Open Justice: Remote Observation of Hearings) [2022] 1 WLR 3538. Regulation 2(b) and the Guidance (at ¶6) specify that the power to give directions applies equally to “family proceedings to which the media or researchers are admitted under FPR r 27.11(2).” The only distinction drawn between a hearing in public and a hearing to which reporters are admitted is that in the latter category the direction must prohibit observation by those not authorised to attend (Regulation 5(1)(a) and ¶12 of the Guidance).

27.111. The Guidance states at ¶2 that:

“Open justice has been a fundamental principle for centuries. The principle is a broad one, but at its core has always been a right of access to a public hearing.”

And at ¶17:

“Decision-makers must give due weight to the importance of open justice. This is a mandatory consideration. Open justice serves the key functions of exposing the judicial process to public scrutiny, improving public understanding of the process, and enhancing public confidence in its integrity. Remote observation can promote all those purposes. Access for reporters, legal commentators and academics is likely to do so.”

And at ¶22]:

“Any derogations from open justice should apply equally to remote observers. It is sometimes necessary to derogate from open justice, for instance by restricting public access to aspects of the evidence or restricting reporting of what takes place in open court. In such a case it is very likely that the court will need to impose equivalent restrictions on remote observers.”

27.112. There is nothing in these new provisions, statutory prohibitions aside, suggesting that there is any restriction on a reporter who has observed remotely a private hearing under these new provisions from publishing a report about that hearing. On the contrary, the Regulations and Guidance treat equivalently hearings held in public and hearings held in private to which the media or researchers are admitted under FPR 27.11(2), and imply that the same principles on reportability should apply to each category.

Showing documents to reporters

27.113. The general rule is that a party may not show documents to a reporter. This is because the parties are bound by an implied undertaking not to make ulterior use of documents compulsorily disclosed by their opponents. However, this prohibition does not apply if the reporter was covering the case: Harman v Home Office [1983] 1 AC 280 per Lord Diplock at 306 - 307 and Lord Roskill at 327; Xanthopoulos v Rakshina at [127]; Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 at [52]. In that event, in the absence of a prohibitory order from the court, in general financial remedy proceedings a party may show documents, including his opponent’s documents, to such a reporter. PD 27B ¶2.1 cannot make disclosure of a document by a party to a reporter a punishable contempt, for the reasons given in §§27.185 - 27.187 below.

27.114. The case law gives a strong steer in favour of disclosure of relevant documents to reporters. For example, in UXA v Merseycare NHS Foundation Trust [2022] 4 WLR 30 the claimant brought an action against an NHS trust seeking damages and a declaration that the trust had acted in a manner which was incompatible with her human rights and thus unlawful for the purposes of s.6 of the Human Rights Act 1998. At a hearing, judgment in default was entered by the court. Subsequently Fordham J allowed the claimant to disclose to the media the default judgment, skeleton arguments, an agreed joint psychiatric statement, the NHS trust's admissions and an independent report commissioned by the trust. In respect of each document the balancing exercise came down in favour of the principle of open justice.

27.115. Reporters attending a hearing should normally be given copies of the skeleton arguments by the court so that they can follow what the case is about. The court can direct that a skeleton may be withheld (or provided redacted) for good reason: see Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 at [51] - [57]). Sight of other documents by the press would have to be the subject of a fact-specific balancing exercise. If the case was about the meaning or effect of a certain document, or if it was being said that a certain document had been fabricated, forged or otherwise tampered with, then in order that the reporter can understand what is going on, it is likely to be reasonable to give the reporter sight of the document (ibid).

27.116. The recent decision of the FTT in Bouncylagoon Ltd v Revenue and Customs Commissioners [2022] UKFTT 361 (TC) is an example of an impeccable application of the relevant principles. In that case a reporter sought copies of the skeletons and the hearing bundle. Importantly, in granting the former, but not the latter, the FTT held that it was not necessary for a reporter requesting copies of documents to do more than to indicate that they were sought for journalistic purposes. The reporter stood in place of the public, and enabling them to understand and scrutinise the justice system and decision-making process also enabled the public to do so, thus advancing the principle of open justice. Without the skeletons the reporter would struggle to understand the parties' submissions and the judge's comments on them during the hearing. In contrast, the hearing bundle would not assist the journalist to understand the proceedings, the decision or any directions issued subsequently. It contained details and correspondence referring to parties and matters which might never become the subject of a public hearing. Providing access to such information would not further the principle of open justice in any material way.

Restricting reporting of the proceedings

27.117. Although an order may be made excluding a reporter from a hearing held in private under FPR 27.11(3)(b), the more usual course to prevent reporting of financial remedy proceedings is to seek a RRO or an anonymity order.

27.118. In deciding whether to make a RRO or an anonymity order the Family Court should be guided by the rules and case law applicable where equivalent orders are sought in the civil sphere. These rules and case law will directly apply to contested cases in the Family Division of the High Court under the Inheritance (Provision for Family and Dependants) Act 1975 or the Trusts of Land and Appointment of Trustees Act 1996 (“quasi-financial-remedy cases”).

Reporting restrictions: civil proceedings

27.119. The orders containing such reporting restrictions are made under CPR 39.2. This provision recognises, incorporates and codifies the common law power to impose secrecy on a proceeding. A complementary provision is CPR 5.4C which sets out the right of non-parties to gain access to key court documents and the power to withhold such access.

27.120. CPR 39.2(1) and (3) permit an order to be made for a hearing to be held in private. CPR 39.2(4) permits an order to be made prohibiting disclosure of the identity of any person. As explained above, privacy per se does not give rise to any secrecy, let alone enforceable secrecy. Therefore, as explained below, an order providing for privacy or anonymity under CPR 39.2 will be given teeth by directions made under s.11, Contempt of Court Act 1981.

27.121. CPR 39.2(2) states:

“In deciding whether to hold a hearing in private, the court must consider any duty to protect or have regard to a right to freedom of expression which may be affected.”

This obligation must apply equivalently when the court is deciding whether to order anonymity.

27.122. CPR 39.2(3) provides:

“A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice …”

The applicant must first satisfy the court that at least one of the seven listed threshold requirements is met. Of those requirements all save item (f) are capable of being raised in financial remedy proceedings. The list of the threshold requirements is set out at §27.139 below. Once a threshold requirement had been made good the court must order a private hearing “if, and only if, it is satisfied that it is necessary to sit in private to secure the proper administration of justice.” In CDE v NOP [2021] EWCA Civ 1908 Males LJ stated at [38]:

“a hearing may only take place in private if, and even then only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) of paragraph 3 and that it is necessary to sit in private to secure the proper administration of justice. Necessity is a demanding test.”

And at [42]:

“in an exceptional case where the necessity to sit in private for one of the reasons listed in sub-paragraphs (a) to (g) is made good, and where (as here) no measure short of sitting in private is likely to be effective to protect the interests which those sub-paragraphs serve, a court may more readily conclude that to sit in private will secure the proper administration of justice.”

27.123. Prior to 6 April 2022 the court’s power under CPR 39.2(4) to order anonymisation was limited to the identity of a party or a witness. Case law had held that the court nevertheless had an inherent power to anonymise the identities of other people referred to in the judgment: Brearley v Higgins & Sons (A Firm) [2021] EWHC 1342 (Ch). On that date the rule was altered to allow anonymisation of “any person”.

27.124. It is obvious that the court will ask itself whether a threshold ground for a private hearing under CPR 39.2(3) applies when it determines an anonymity application under CPR 39.2(4). It is hard to conceive that the court would ever order anonymisation if none of the threshold grounds applied. The court must order anonymisation if, and only if, “it considers that non-disclosure [is] necessary to secure the proper administration of justice and in order to protect the interests of that person.” This is a demanding test.

Section 11 of the Contempt of Court Act 1981: civil proceedings

27.125. An order under CPR 39.2(1) for a hearing to held in private does not of itself prohibit publication of any details of the proceedings (see above). Therefore an order giving effect to a decision that a hearing be held in private, or to a decision granting anonymity under CPR 39.2(4), will be given teeth by means of ancillary directions under s.11, Contempt of Court Act 1981. This provides:

"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."

In A v BBC [2015] AC 588 Lord Reed JSC stated at [59]:

“The purpose of section 11 is to support the exercise of such a power by giving the court a statutory power to give ancillary directions prohibiting the publication, in connection with the proceedings, of the name or matter which has been withheld from the public in the proceedings themselves.”

27.126. The raison d’être of section 11 is to provide sanctions for breach of orders for privacy under CPR 39.2(1) and (3) or for anonymity under CPR 39.2(4). The essential ratio of Scott v Scott is that a bare order that a case be held in private does not give rise to obligations of secrecy. Breach of a bare anonymity order may not be punishable as a contempt of court: see CVB v MGN Ltd [2012] EWHC 1148 (QB) at [20] per Tugendhat J. Therefore section 11 is needed to reinforce these orders and to give them teeth.

Matters to be considered by the court: civil proceedings

27.127. An application in civil proceedings for a privacy or an anonymity order will engage s.12(1) and (4) of the Human Rights Act 1998. These provide that if a court is considering whether to grant any relief which, if granted, might affect the exercise of the Convention right to freedom of expression, it must have “particular regard” to the importance of that right.

27.128. In deciding whether to make an order for privacy or anonymity the court will not only pay particular regard to the importance of the right to freedom of expression. It will also have in mind that an order for privacy or anonymity will be exceptional.

27.129. Such rarity was recently confirmed in Executor of HRH Prince Philip, the Duke of Edinburgh (Deceased) & Anor v Guardian News and Media [2022] EWCA Civ 1081. Sir Geoffrey Vos MR stated at [22]:

“We should start by endorsing GNM's submissions as to the critical and constitutional importance of open justice. It is only in rare cases that it is appropriate for a court to sit in private. That is made clear by the provisions of CPR Part 39.2, to which we have already alluded. As GNM submits, the purposes of open justice include winning and retaining public confidence in the court's processes (Scott v. Scott [1913] AC 417 at page 463), deterring inappropriate behaviour by the court, neutralising any suggestion of a cover up, and the preservation of a free press (see Lord Steyn in In re S [2005] 1 AC 593 at [29]–[36]). As GNM also submits, derogations from open justice must be reserved for exceptional situations (see, by analogy, Practice Guidance (Interim Non-disclosure Orders) [2012] 1 WLR 1003 at [10]–[13]).”

As explained below, the decision in that case was made in in non-contentious probate proceedings.

27.130. With these matters in mind the court will go on to conduct the balancing exercise described by Lord Steyn in In re S at [17]:

“First, neither Article [8 nor 10] has as such precedence over the other. Secondly, where the values under the two Articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

27.131. This intensely focussed balancing exercise on the specific facts of the individual case has to be undertaken whenever an anonymity order is applied for: see XXX v Camden LBC [2020] EWCA Civ 1468 at [19]–[21].

27.132. In summary, to have a prospect of success an application for anonymity or privacy in civil proceedings will have to demonstrate that the fundamental right of the press and the public to freedom of expression must be curtailed because:

  1. one of the threshold matters in CPR 39.2(3) applies, and
  2. the circumstances are exceptional, and
  3. the interests of the persons being anonymised require protection, and
  4. such an order is necessary to secure the proper administration of justice.

Equal application of civil open justice principles to financial remedy proceedings

27.133. While CPR 39.2 does not strictly apply in financial remedy proceedings governed by the FPR its terms will be reflected when the Family Court or Family Division exercises the common law power to impose secrecy: see Executor of HRH Prince Philip, the Duke of Edinburgh (Deceased) & Anor v Guardian News and Media.

27.134. In those non-contentious probate proceedings an application was made under r. 58 of the Non-Contentious Probate Rules 1987 seeking that the will of Prince Philip be sealed up for 90 years and only opened in the meantime with the consent of the President for the time being. The application was granted by the President at a private hearing, of which the media was given no notice, and which was not publicly listed.

27.135. Under r.61(1) of the Non-Contentious Probate Rules 1987 a district judge or registrar may require any application to be made by summons to a district judge or registrar in chambers or to a judge in chambers or open court. Those rules are silent as to who can attend the hearing of an application to a judge in chambers and what can be reported about them.

27.136. Non-contentious probate proceedings are not governed by the CPR: see CPR 2.1(2), which explicitly excepts non-contentious or common form probate proceedings from their application . But for r.3(1) of the Non-Contentious Probate Rules 1987 (‘r.3(1)’), they would be governed by the FPR: see FPR 2.1 which applies the FPR to “family proceedings” as defined in s.75(3) of the Courts Act 2003, which in turn includes within that definition any business assigned to the Family Division by s.61 of, and Schedule 1 to the Senior Courts Act which in ¶3(b)(iv) includes non-contentious probate business. However, r.3(1) remarkably provides that:

“Subject to the provisions of these rules and to any enactment, the rules of the Supreme Court 1965 as they were in force immediately before 26th April 1999 shall apply, with any necessary modifications to non-contentious probate matters, and any reference in these rules to those rules shall be construed accordingly.”

The RSC say nothing about privacy and anonymity in probate proceedings. RSC O.76 regulates contentious probate proceedings and is silent as to who may attend such cases and what may be reported.

27.137. Yet, in his judgment at [6], [18], [22], [31] and, [33] the Master of the Rolls stated time and again that the principles in CPR 39.2 applied to the hearing before the President. At [22] (set out at §27.129 above) he stated that (i) open justice is of critical and constitutional importance; (ii) derogations from open justice must be reserved for exceptional situations; and (iii) the cases where it is appropriate to derogate are limited by CPR 39.2.

At [33] he stated:

“As to the three public interests relied on by GNM, we would just say this. We agree and have taken full account of the first, namely the public interest in open justice in all court contexts, with derogations only in exceptional circumstances. These are exceptional circumstances, to which the principles in CPR Part 39.2 would apply.”

This decision is therefore of considerable significance. It decides that the terms of CPR 39.2, and the case law on it, are of general application and are not confined to civil cases governed by the CPR.

27.138. Another reason for applying the principles of CPR 39.2 to financial remedy proceedings is that its terms are largely replicated in FPR 7.30 for matrimonial and civil partnership “main suit” proceedings (for proceedings commenced before 6 April 2022 the rule was 7.16, but there are no differences between the old and new rules).

27.139. There are slight differences between CPR 39.2(3) & (4) and FPR 7.30(3) & (5). These are illustrated by the following table where the differences are highlighted.

CPR 39.2

(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court for any other reason considers this to be necessary to secure the proper administration of justice.

(4) The court must order that the identity of any person shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that person.

FPR 7.30

(3) A hearing, or any part of it, may be in private if …

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing; or

(f) the court considers this to be necessary, in the interests of justice.

(5) 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.

27.140. The essential difference between the two sets of rules is that under CPR 39.2 there is an over-arching requirement for the court to be satisfied when making either a privacy order or an anonymity order that such an order is necessary to secure the proper administration of justice whereas under FPR 7.30 securing the interests of justice is merely one of the possible threshold requirements. It is doubtful that this distinction could ever make a difference in practice. FPR 7.30(5) has not yet been altered to allow the anonymisation of “any person” and it remains confined to parties and witnesses. Again, this will never make a difference given the court’s inherent powers.

27.141. In Hussain v Parveen (The Queen's Proctor Intervening) [2021] EWFC 73 [2022] 1 FLR 823 Arbuthnot J sitting in the Family Court directly applied CPR 39.2(4) when refusing to make an order anonymising a judgment given in nullity proceedings. She held at [112] that the respondent’s interests did not require such protection. Strictly speaking, her decision should have been given under (the then) FPR 7.16(5).

27.142. It is respectfully suggested that it would be absurd for the Financial Remedies Court to apply different principles when determining an application for an anonymity order in a financial remedy case to those applicable under FPR 7.30(5) in a contested nullity case in the Family Court, and to those very similar, but not identical principles, applicable under CPR 39.2(4) in quasi-financial-remedy cases in the Family Division under the Inheritance (Provision for Family and Dependants) Act 1975 or under the Trusts of Land and Appointment of Trustees Act 1996.

Civil anonymity orders

27.143. Examination of the anonymity orders made under CPR 39.2 and placed on the judiciary.uk website shows that such orders will typically contain the following provisions:

Recitals stating that -

  1. the court has considered the Article 8 rights of the Claimant to respect for private and family life, and the Article 10 right to freedom of expression;
  2. non-disclosure of the identity of the Claimant is necessary to secure the proper administration of justice and in order to protect the interests of the Claimant and that there is no sufficient countervailing public interest in disclosure;
  3. the Defendant has indicated its neutrality to the making of the order (or as the case may be) and there were no representations from the press or any other interested party;
  4. the order is made pursuant to section 6 of the Human Rights Act 1998, section 11 of the Contempt of Court Act 1981, and CPR rules 5.4C, 5.4D and 39.2(4).

Orders providing that -

  1. the identity of the claimant as a party to the proceedings is confidential and shall not be published;
  2. there shall not be disclosed in any report of the proceedings or other publication the name or address of the claimant, or other immediate family members, or any details (including other names, addresses, or a specific combination of facts) that could lead to the identification of the claimant in the proceedings;
  3. any interested party, whether or not a party to the proceedings, may apply to the court to vary or discharge the order, provided that any such application is made on 7 days’ notice to the Claimant’s solicitor; and
  4. a copy of the order shall be placed on the judiciary website.

(See, for example, https://www.judiciary.uk/judgments/axb-v-metwally-anonymity-order/).

27.144. The following points about an order in these terms should be noted:

  1. the recital states that no representations were received from the press, but as explained below, the press will not have been served or otherwise notified of the application;
  2. the recital states that the order is, inter alia, made pursuant to s.6 of the Human Rights Act 1998. This states that it is unlawful for a public authority (including a court) to act in a way which is incompatible with a Convention right. It is presumably included to emphasise that the court is satisfied that the order is compliant with Convention rights;
  3. the order does not appear to bear a penal notice prominently displayed on its front as required by CPR 81.2 and 81.4(e). In contrast, the standard family court contra mundum reporting restriction order (Order No. 14) bears a penal notice on the front which states:

IMPORTANT WARNING: ANY PERSON OR BODY WHO KNOWS OF THIS ORDER AND DOES ANYTHING TO BREACH ITS TERMS MAY BE HELD TO BE IN CONTEMPT OF COURT AND MAY BE IMPRISONED, FINED OR HAVE THEIR ASSETS SEIZED.

The standard family court suite of orders do not contain a precedent for an anonymity order corresponding to this usual civil order.

27.145. It is not clear what steps a claimant could take if such an order, even if reinforced by s.11, Contempt of Court Act 1981, were breached by a reporter. Contempt proceedings may risk being dismissed for want of personal service and the absence of a penal notice.

The right of reporters to be heard in civil proceedings

27.146. The terms of the typical civil anonymity order set out at para 27.143(f) and (g) above reflect CPR 39.2(5) which provides:

“Unless and to the extent that the court otherwise directs, where the court acts under paragraph (3) or (4), a copy of the court’s order shall be published on the website of the Judiciary of England and Wales (which may be found at www.judiciary.uk). Any person who is not a party to the proceedings may apply to attend the hearing and make submissions, or apply to set aside or vary the order.”

27.147. In civil proceedings, therefore, the press has no right to be told in advance of an application that the proceedings be held in private and/or for anonymity. If a reporter has got wind of the application he or she can apply to attend the hearing, and no doubt can appear and ask to be heard. Otherwise, the reporter is left only with the right to apply to set aside or vary the order once it has been granted.

27.148. Where the press is a party to the proceedings, in contrast, they should be given notice of a hearing of an application for a privacy or anonymity order unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one: see JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 2 All ER 324, [2011] 1 WLR 1645 at [21(10)] per Lord Neuberger MR.

Section 12(2) of the Human Rights Act 1998

27.149. Omitting to give the press (where not a party) notice of an anonymity application is seemingly inconsistent with s.12(2) Human Rights Act 1998, which provides:

“If the person against whom the application for relief is made (“the respondent”) is neither present nor represented, no such relief is to be granted unless the court is satisfied

(a) that the applicant has taken all practicable steps to notify the respondent; or

(b) that there are compelling reasons why the respondent should not be notified.”

27.150. FPR PD 12I reflects the terms of s.12(2). It provides:

Service of Application on the National News Media

3.1 Section 12(2) of the Human Rights Act 1998 means that an injunction restricting the exercise of the right to freedom of expression must not be granted where the person against whom the application is made is neither present nor represented unless the court is satisfied:

(a) that the applicant has taken all practicable steps to notify the respondent, or

(b) that there are compelling reasons why the respondent should not be notified.

3.2 Service of applications for reporting restriction orders on the national media can now be effected via the Press Association’s CopyDirect service, to which national newspapers and broadcasters subscribe as a means of receiving notice of such applications.

3.3 The court will bear in mind that legal advisers to the media –

(i) are used to participating in hearings at very short notice where necessary; and

(ii) are able to differentiate between information provided for legal purposes and information for editorial use.

Service of applications via the CopyDirect service should henceforth be the norm.

3.4 The court retains the power to make without notice orders, but such cases will be exceptional, and an order will always give persons affected liberty to apply to vary or discharge it at short notice.”

27.151. In Re P (A Child) [2013] EWHC 4048 (Fam) Sir James Munby P at [45] explained the precise steps that needed to be taken when giving notice to the media via the PA Injunction Applications Alert Service. The judgment pointed out that the Financial Times and Sky News did not then subscribe to the service (although the latter has since done so). It identifies a website which lists the media organisations served, and the relevant telephone numbers; the current address is:

https://medialawyer.press.net/courtapplications/mediaorganisations.jsp.

27.152. The premise of FPR PD 12I, and of the decision in Re P, is that s.12(2) applies to an application for a generalised contra mundum anonymity order and is not confined merely to an application for an injunction against a specific respondent who is about to publish something identifiable. However, the decision of the Supreme Court in A v BBC [2015] AC 588 is to the opposite effect. Lord Reed stated:

“65. … section 11 of the 1981 Act applies where the court "allows a name or other matter to be withheld from the public in proceedings before the court", and permits the court to "give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary".

66. When an application is made to the court to allow a name or matter to be withheld, that is not an application for relief made against any person: no remedy or order is sought against any respondent. If ancillary directions under section 11 are also sought, prohibiting any publication of the name or matter in question, that equally is not an application for relief made against any respondent: the directions will operate on a blanket basis. In such circumstances there is no respondent who should be notified, or who might be present or represented at the hearing. There is therefore no obligation under section 12(2) of the Human Rights Act to allow the media an opportunity to be heard before such an order can be granted.

67. The Lord President observed at para 39 that, even if the media were not entitled to be heard by virtue of section 12(2) of the Human Rights Act, they were entitled to be heard as a matter of fairness, although there was a question as to the stage at which the opportunity to be heard should be given. I agree. There are many situations in which courts make orders without having heard the persons who may be affected by them, usually because it is impractical, for one reason or another, to afford a hearing to those persons in advance of the making of the order. In such circumstances, fairness is secured by enabling any person affected to seek the recall of the order promptly at a hearing inter partes. In principle, an order under section 11 of the 1981 Act falls within the ambit of that approach. It would be impractical to afford a hearing to all those who might be affected by a section 11 order (including bloggers, social media users and internet-based organisations) before such an order was made; but fairness requires that they should be able to seek the recall of the order promptly at a hearing inter partes.”

27.153. Therefore, a contra mundum or blanket anonymity order, not having been made against an actual respondent, does not come within s.12(2) and there is no obligation to notify the press before seeking the order.

27.154. This decision has been followed by the Court of Appeal in Executor of HRH Prince Philip, the Duke of Edinburgh (Deceased) & Anor v Guardian News and Media. Sir Geoffrey Vos MR stated at [18]:

“The media might, in fairness, be heard on such a question, but had no right to be heard before any order as to a private hearing was made. That much is also clear from CPR Part 39.2, which makes no such provision. Instead, it provides by CPR Part 39.2(5) that, unless and to the extent that the court otherwise directs, an order that a hearing should be held in private should be published on the judiciary's website.”

The position in financial remedy proceedings

27.155. The position therefore in financial remedy proceedings would seem to be as follows:

  1. an applicant for a RRO or an anonymity order is not required to give notice to the press of the hearing of the application, but must give notice to all other parties;
  2. if a reporter gets wind of the application s/he can turn up and ask to be heard;
  3. where an order is made in the absence of the press, the press should normally be served with it, there being no procedure in the Family Court or Family Division for placing anonymity orders on the judiciary website;
  4. once the press has become aware of the order it can apply for it to be varied or set aside.

Interim RRO or anonymity order

27.156. However surprising the decision in A v BBC may seem, it comes from the highest court, and is binding. A court presented with an application for an anonymity or reporting restriction order by one party, unopposed by the other party, may nevertheless consider that it will be unable to conduct fully and properly the intensely focussed balancing exercise required by the decision in Re S, without hearing submissions on behalf of the press. In XZ v YZ [2022] EWFC 49 the court was faced with a comparable situation. Although the press had been recently served with the application, its position was not known. Further, the court was of the view that it could not conduct the focused balancing exercise until the evidence of the parties had been heard. Therefore the court made an interim order, holding at [13] that:

“it is implicit in Lord Steyn's speech that the court can make a temporary or interim RRO without full evidence and without performing the complete balancing exercise to endure only until the parties and the court are ready to deal with the matter substantively, justly and fairly.”

Anonymising the judgment

27.157. The general, non-family-law, principle is that (whether or not the proceedings have been held in private in whole or in part) the court’s decision and its reasons should be made public. However, where an order for anonymity of the proceedings has been made the court will normally anonymise its judgment equivalently. Where no order for anonymity has been made, perhaps for the banal reason that no reporters attended the hearing, then anonymisation of the judgment should only take place where a Re S balancing exercise leads to a conclusion that the proper administration of justice requires the protection of the parties (or other persons) by anonymisation. Arbuthnot J did just that in Hussain v Parveen (The Queen's Proctor Intervening). She carefully undertook the balancing exercise on the specific individual facts and concluded that anonymity could not be justified.

27.158. Applying the maxim that the greater includes the lesser, the power to order a hearing to be held in private plainly carries with it the power to rule that privacy should apply only to certain specified matters. Where such a partial order has been made the normal practice would be for the findings in respect of those matters to be placed in a confidential schedule to the judgment and embargoed from being publicly reported: see Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 at [74], where such an order was made, with the embargo being limited to 3½ years [78].

27.159. However, it is fair to say that the great majority of the family judiciary do not apply this general principle. Rather, there is an enduring culture of secrecy leading to the overwhelming majority of judgments being given anonymously. For example in IR v OR [2022] EWFC 20, Moor J stated at [29]:

“Finally, [the husband] complains that the Wife has threatened him with publicity if the case proceeds. I believe this refers to proposed changes to the rules on anonymity in financial remedy proceedings but they are not in place yet. I am clear that, until I am told I have to permit publication, litigants are entitled to their privacy in the absence of special circumstances, such as where they having already courted publicity for the proceedings which is not the case here.”

27.160. The judgment bore a rubric at its head in these terms:

“The judgment was delivered in private. The judge has given leave for this version of the judgment to be published. The parties and their children may not be identified by name or location. The anonymity of everyone other than the lawyers and anyone else specifically named in this version of the judgment must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.”

27.161. Similarly, in Barclay v Barclay [2021] EWFC 40, Cohen J stated:

“16. In financial remedy proceedings the starting point is one of privacy. This arises from a number of considerations including the fact that parties are obliged by rules of court to give full and frank disclosure of all relevant matters. But, further, the breakdown of a relationship and its consequences are intensely personal matters. For the public to be admitted, whether by attendance at a hearing or being able to read about it, would add a layer of pain and embarrassment which is damaging both to the parties and to their wider families. There is no corresponding public benefit.

17. On the other hand, what goes on in family courts is a proper matter of public concern. Open justice is part of the DNA of our constitution. There is a proper public interest in what goes on in the courtroom.

18. These tensions are normally resolved by the publication of anonymised judgments so that although the identity of the party is not revealed, the basis upon which the court has acted is fully visible to anyone interested.”

27.162. These judgments reflect a belief that litigants in financial remedy proceedings have an “entitlement” to privacy, in contrast to litigants in most other types of civil proceedings about finances, and litigants in quasi-family proceedings, who do not. Respectfully, it is not considered that there is any such entitlement under the law.

27.163. The high point of support for this “entitlement to privacy” view are the obiter dicta of Thorpe and Stanley Burnton LJJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [43] and [76] respectively :

“43. The present appeal raises questions as to the purpose and the practice of anonymising judgments. In the public debate surrounding the move towards more open family justice, anonymisation offers the opportunity to scrutinize the operation of the family justice system whilst protecting the children and families directly involved. …

76. Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.”

27.164. In A v M [2021] EWFC 89 at [106] Mostyn J pointed out there was no statement of practice made at any time before Lykiardopulo v Lykiardopulo explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all financial remedy judgments given by High Court judges. He said:

“That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island.”

27.165. It is politely suggested that this “entitlement to privacy” view does not appropriately recognise that anonymisation (whether of the proceedings or of the judgment) is a direct derogation from the principle of open justice and a curtailment of the Article 10 right of the press and the public to freedom of expression: see H v News Group Newspapers Ltd Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645 at [21(3)] per Lord Neuberger MR. It is important to recognise that this right protects not only the substance of ideas and information but also the form in which they are conveyed: In re Guardian News and Media Ltd [2010] 2 AC 697 at [63], per Lord Rodger who added:

“A requirement to report 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.”

27.166. In Gallagher v Gallagher (No.1) (Reporting Restrictions) at [36] it was stated:

‘As is commonplace, the submissions suffer by tacitly asking the wrong question: "Why is it in the public interest that the parties should be named?" rather than the right one: "Why is it in the public interest that the parties should be anonymous?"’

The entitlement to privacy view surely poses the same wrong question.

27.167. It is for these reasons that CPR 39.2(4) requires the court when making an anonymity order to be satisfied not only that the interests of a person require to be protected, but also that the order is needed to secure the proper administration of justice. This is a demanding test, which logically must apply with equal force to the anonymisation of both proceedings and judgments.

27.168. In pursuit of transparency Sir James Munby P issued guidance in 2014 on the publication of judgments on BAILII: Practice Guidance (Transparency in the Family Courts) [2014] EWHC B3 (Fam). By virtue of ¶18 a financial remedy judgment can only be published where a party or an accredited member of the media applies for an order permitting publication, and the judge concludes that permission for the judgment to be published should be given. In deciding whether, and if so when, to publish a judgment, the judge should have regard to all the circumstances, the rights arising under any relevant provision of the ECHR and the effect of publication upon any current or potential criminal proceedings: (¶19). Where the judge gives permission ¶20(iii) provides that anonymity in the judgment as published should not normally extend beyond protecting the privacy of the children and adults who are the subject of the proceedings and other members of their families.

27.169. In Re X (A Child) (No 2) [2016] EWHC 1668 (Fam) at [30] Sir James Munby P supplemented the Guidance stating:

“it is the responsibility of the judge, and of the judge alone, to decide whether to send a judgment to BAILII and to ensure (if a judgment is sent) that … the version sent has been appropriately anonymised.”

27.170. The Guidance (as supplemented) elides those judgments which are covered by s.12 of the 1969 Act, with those that are not. For cases which are so covered a requirement to obtain permission to publish the judgment, and then only in anonymised form, is consistent with the statutory secrecy. But for the reasons stated above there can be no such requirements attaching to judgments in general financial remedy proceedings. Absent a specific, individual, RRO and/or anonymity order such a judgment may be published by anyone, in full, as of right.

The rubric

27.171. The rubric used in IR v OR is the standard current version used for all family cases whether they are about money or children. It was first introduced in 2002 for use in all cases. The version in current use is to all intents and purposes the same as the original version. The wording reflects the statutory secrecy imposed by section 12 of the Administration of Justice Act 1960 on any proceedings concerning the welfare of children. Disclosure of any information about such proceedings is a contempt.

27.172. The rubric is completely inapt for financial remedy proceedings which are not mainly about children. In Xanthopoulos v Rakshina at [118] Mostyn J expressed the view that it was hardly surprising that the culture of secrecy thrived in circumstances where the automatic rubric generated in every case threatened contempt of court proceedings if any disclosure were ever made about the identity of the parties.

27.173. At [119] the view was expressed that the rubric in its current form is ineffective to prevent full reporting of a financial remedy judgment. It is not a privacy injunction. It is not a reporting restriction order. It is not an anonymity order. Nor can it be conceptualised as a direction under s.11 of the Contempt of Court Act 1981. Such a direction requires careful individual consideration of whether to exercise the power. The exercise of the power will always be expressed as a formal order. The rubric satisfies none of these requirements.

27.174. In a child case s.12 of the Administration of Justice Act 1960 imposes secrecy on the case. Breach of that secrecy is a contempt. No order is required in order to give effect to the statutory secrecy. In a child case the rubric therefore serves as no more than an advisory notice of what s.12 provides. That is what it was designed for. It cannot be construed as a form of secrecy order in those family cases where s.12 does not apply. A rubric for those family cases in general, and for financial remedy cases in particular, is urgently needed to avoid further confusion.

Child maintenance proceedings

27.175. Financial remedy cases which are wholly or mainly about child maintenance are subject to s.12 of the Administration of Justice Act 1960. In such a case the publication of information relating to the proceedings is a contempt (s.12(1)). However, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be a contempt of court (s.12(2)).

27.176. An application under Schedule 1 to the Children Act 1989 engages s.97(2) of that Act. This makes it an offence to publish to the public at large, or to any section of the public, any material which is intended, or likely, to identify (a) any child as being involved in any proceedings before the Family Court in which any power under the Act may be exercised by the court with respect to that or any other child; or (b) an address or school as being that of a child involved in any such proceedings. The prohibition under s.97(2) only lasts for as long as the proceedings are pending. Once the proceedings are concluded by a final order the prohibition lapses. Following the lapse of the prohibition publication may be made of the matters referred to in §27.178 below.

27.177. Therefore, if the application is under Schedule 1 nothing can be published which might identify the child or the child’s address or school, or which constitutes information relating to the proceedings. This makes it almost impossible for anything to be published about the case without having obtained an order from the court relaxing the statutory restrictions. For a party to speak to a reporter about such case would be perilous in the extreme.

27.178. If the application is under the Matrimonial Causes Act 1973 or the Matrimonial and Family Proceedings Act 1984, then more can be published as the prohibition on identification in section 97(2) of the Children Act 1989 will not apply. But, as the proceedings will be wholly or mainly about child maintenance s. 12 of the 1960 Act will continue to apply. In X v Dempster [1999] 1 FLR 894 Wilson J listed what could be published where section 12 alone was in play:

“(a) the fact that a child is the subject of proceedings relating wholly or mainly to the child’s maintenance;

(b) the name, address or photograph of such a child;

(c) the name, address or photograph of the parties to such proceedings;

(d) the date, time or place of a past or future hearing of such proceedings;

(e) the nature of the dispute in such proceedings;

(f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place; and

(g) the text or summary of the whole or part of any order made in such proceedings.”

27.179. However, in such a case speaking to a reporter would likewise be fraught with peril given the proscription in section 12 on publishing any information relating to the proceedings. In Re B (A Child), Kent County Council v the Mother & Ors [2004] EWHC 411 (Fam) at [72] Munby J held that that most forms of dissemination, whether oral or written, will constitute a publication. It would require iron discipline in a conversation with a reporter for a party to stay on the right side of the line.

Proposals for reform

27.180. In the previous edition at §27.159 we explained how the President on 11 February 2022 announced that a new FRC transparency group, chaired by HHJ Farquhar, would become the fifth sub-group of the main Family Transparency Implementation Group.

27.181. On 29 November 2022 the President announced a pilot project to run from January 2023 to January 2024 to permit greater reporting of children cases in the Family Court at Cardiff, Leeds, and Carlisle. Such reporting would be subject to a transparency order issued in each case which will impose strict anonymity on the proceedings. However, reporters will be presumptively entitled to see the key documents and the principal professional actors in the case (for example experts, legal representatives and judges) will all be named.

27.182. The pilot will extend to applications for public and private law orders under Parts II and IV of the Children Act 1989, applications for placement orders, and applications under the inherent jurisdiction of the High Court including applications to authorise deprivations of liberty. It represents a modest but welcome relaxation of the grip of s.12 of the Administration of Justice Act 1960.

27.183. However, the pilot will not apply to financial remedy cases or applications under Part IV of the Family Law Act 1996. It is considered by the authors that in its present form it could not lawfully be applied to financial remedy proceedings.

27.184. The terms of reference of the FRC subgroup are:

“To consider all aspects of Transparency as far as it concerns the work of the Financial Remedies Court and to report as to suggested ways forward.

The areas to be covered will include, but are not limited to, the following:

  • Should FRC cases be heard in Private or in Open Court;
  • Should the parties remain (sic) anonymous;
  • What documents, if any, should be made available to the press/legal bloggers;
  • How should highly confidential information (including that which is commercially sensitive) be considered;
  • Contents of published judgments;
  • How to ensure a greater number of judgments in cases involving a lower level of assets, which are generally heard by the District bench can be published.”

27.185. It is to be hoped that the report, expected to be published in February 2023, will address the key question of whether anything short of primary legislation can provide for automatic anonymisation in financial remedy cases. If it is correct that as a matter of law full freedom of expression and full reportability is the default, and that anonymity can only be imposed individually on a fact-specific basis, then it would surely be beyond the powers of the Rule Committee to reverse this, even on a pilot basis, and to provide for a default of general anonymity with names being named only exceptionally. Such a course would, in effect, be to extend the reach of s.12(1) of the Administration of Justice Act 1960 to all forms of financial remedy proceedings and would turn innocent disclosures into punishable contempts. This is not permitted by s.12(4) which provides:

“Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section and in particular where the publication is not so punishable by reason of being authorised by rules of court.”

27.186. Therefore, as stated in Xanthopoulos v Rakshina at [140], rules cannot be made which make acts which are not punishable contempts into acts that are.

27.187. The powers of the Rule Committee are limited to making rules governing the practice and procedure to be followed in family proceedings (s.75(1) of the Courts Act 2003). The scope of the rules is defined in s.76. Section76(2A), reflecting s.12(4) of the 1960 Act, allows rules to be made which, for the purposes of the law relating to contempt of court, authorise the publication, in such circumstances as may be specified, of information relating to family proceedings held in private. This has duly occurred and Chapter VII of Part 12 (FPR 12.72–12.75) and PD 12G have been promulgated relaxing s.12(1) so as to allow various forms of disclosure to be made without the risk of punishment for contempt. So, for example, a party may disclose any information relating to the proceedings about his children to a health care professional or counsellor for the purposes of obtaining counselling. By contrast, ss. 75 and 76 give no power to the Committee to extend the reach of s.12(1) or to provide, whether by rule or otherwise (for example by specifying a form of order and/or rubric), for general automatic anonymity or default anonymity in all forms of financial remedy proceedings.

27.188. It is to be hoped that the TIG-FRC subgroup will grapple squarely with the issues that beset the question of transparency in the FRC, where the current conventions of secrecy and anonymity have no historical foundation and little logical validity; are applied by the judiciary inconsistently; and are arguably unlawful.

The Judicial Proceedings (Regulation of Reports) Act 1926

27.189. This Act was introduced to restrict reporting of defended divorces held in open court.

27.190. At first instance in Clibbery v Allan [2001] 2 FLR 819 Munby J held that the Act applied to financial remedy proceedings. If this dictum is correct then, whether the hearing is in public or private, the press may only publish, on pain of criminal conviction:

(a) the names, addresses and occupations of the parties and witnesses;

(b) a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(c) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;

(d) the judgment of the court and observations made by the judge in giving judgment.

27.191. In Rapisarda v Colladon [2014] EWFC 1406 at [31–35] (which was not a financial remedy case) the then President left open the question whether the 1926 Act applied to financial remedy proceedings. He described this uncertainty as a ‘truly a disturbing state of affairs’. He questioned whether the 1926 Act ought to be repealed. He pointed out that where the 1926 Act applied there was power in the court under s 1(4) to authorise the publishing of any report of the proceedings, and made such a direction in that case.

27.192. In Xanthopoulos v Rakshina at [129]–[134] Mostyn J strongly disagreed with the view (including his own earlier view) that the 1926 Act applied to financial remedy proceedings. He stated at [134] that the 1926 Act has no relevance to the question of anonymisation of financial remedy judgments. If he was wrong and the 1926 Act did apply to financial remedy proceedings it could not, in any event, bear on the anonymity issue given the permitted exceptions in ss.1(b)(i) and 1(b)(iv) allowing publication of the names, addresses and occupations of the parties and witnesses, and the judgment of the court and observations made by the judge in giving judgment, all of which are incompatible with anonymity.

27.193. Representatives of the press who attend a financial remedy hearing being heard publicly, or a hearing being heard privately where there is no reporting restriction order in place, should perhaps have in mind that if the 1926 Act applies then in the absence of an order under s 1(4), publication of any of the proceedings, other than the limited material set out above, would technically be a criminal offence.

Financial remedy appeals

27.194. In DE v AB (No 2) (Permission Hearing: Publicity Protection) [2014] EWCA Civ 1064 Ryder LJ at [20] stated that ‘hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise’. At [21]–[28] he emphasised the general common law principle of open justice and that the burden of establishing any derogation from the general principle lies on the person seeking it. At [29]–[32] he reiterated that where a derogation is sought in reliance on Arts 6 and 8 of the ECHR the familiar balancing exercise must be undertaken as explained by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47. Applying those principles he held that that appeal to the Court of Appeal should be heard in private.

27.195. In XW v XH [2019] EWCA Civ 549 at [20] King LJ stated at (ii) that only exceptionally will an order for anonymity supported by a reporting restrictions order be made in the Court of Appeal. The parties are not routinely entitled to anonymity and the preservation of confidentiality of their financial affairs but at (vi) she said that the interests of a child may render it necessary to restrict public reporting of certain information in financial remedy cases, and made a RRO in that case for that reason.

27.196. FPR PD 30B ¶2.1 provides that where the appeal is heard in the High Court under FPR PD 30A ¶2.1 it will ordinarily be heard in public. PD 30B ¶2.3 states that where there are no minor children “involved” the court will not impose any reporting restrictions preventing identification of the parties under FPR 30.12A(3).

27.197. In BT v CU [2021] EWFC 87 at [108] Mostyn J observed in relation to the different standards of transparency of the Court of Appeal and the High Court when hearing appeals, and those of the Family Court sitting at first instance:

“This divergence in practice, depending on whether the application is proceeding at first instance or on appeal, is impossible to defend. It becomes yet more arbitrary and irrational when one considers that, where during the interlocutory journey of a first instance application, there has been an excursion to the Court of Appeal, the judgment at the final hearing will often be given without anonymisation: see as an example the recent decision of Peel J in Crowther v Crowther & Ors (Financial Remedies) [2021] EWFC 88, where everybody and everything were named.”

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