Are We Clear? Transparency and the TIG Financial Remedies Sub-Group Report
Published: 21/11/2023 07:00
Many meetings, much discussion and a fish ’n’ chips (working) lunch later, the conclusions of the Financial Remedies Sub-Group (the Sub-Group) of the Transparency Implementation Group (TIG) were published in April 2023. Established by the President of Family Division and led by HHJ Stuart Farquhar, a group of 13 – judges, lawyers, a legal blogger and a journalist, based around the country – spent countless hours over several months tackling the often misunderstood and controversial topic of transparency in the Financial Remedies Court (FRC). The result: a comprehensive, 164-page report (the Report).
To be transparent (pardon the pun), the authors of this article were members of that Sub-Group. It was a pleasure for us to work with a wide cast of professionals and an honour to contribute to such an important piece of work in the financial remedies world.
The issue of transparency has been the subject of much recent debate in the FRC. There have been a number of lengthy judgments on the issue, mainly from Mostyn J, not least Xanthopoulos v Rakshina  EWFC 30 and Gallagher v Gallagher (No 1) (Reporting Restrictions)  EWFC 52. Happily, the Sub-Group did not have to stand in the shoes of the Court of Appeal by deciding whether Mostyn J is right in his exposition of the law or not, but nevertheless the Report covers the main authorities and highlights the apparent divergence within the judiciary, particularly at High Court level.
Equally, the merits or otherwise of the recommendations contained within the Report are outwith the remit of this article (not least as we would feel like we were marking our own work), but what we hope to cover are the key elements of the Report. It is for others to pass comment1 on what is ultimately recommended.
It is impossible to capture in a relatively short article the masses of content of the Report and there is no real substitute for reading the Report in full. However, this article is a good starting point in terms of an overview of the Sub-Group’s recommendations.
Keen to ensure there was a broad base of knowledge to assist in the task, at an early stage a decision was taken to gather as much evidence as possible from a wide range of sources. These included:
- Papers from specialist silks practising in the Chancery and King’s Bench Divisions and in the Court of Protection.
- Information provided by practitioners from Scotland, Ireland, the USA, Canada, Australia and New Zealand about how the issue of transparency is approached in their respective jurisdictions (sadly, but perhaps unsurprisingly, our request for a fact-finding field trip did not find favour).
- A wide-ranging online survey, which sought the views of those with an interest in FRC cases. We had 585 responses from an array of participants.
- Consideration of a number of authorities: the High Court kept us busy with multiple published decisions in fairly short succession during the currency of the Sub-Group’s work.
Our terms of reference were wide: ‘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’. We were required to consider the following questions and issues:
- Should FRC cases be heard in private or in open court?
- Should the parties remain 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 can be published, which are generally heard by the District Bench.
The recommendations ‘at a glance’
Helpfully, the recommendations of the Sub-Group are set out in a colour-coded table, which identifies the issue, the present position, and the Sub-Group’s recommendation, followed by the impact upon transparency, before turning to possible methods of implementation. It is difficult to improve upon HHJ Farquhar’s ‘Executive Summary’ at Chapter 2 of the Report.
As readers are aware, below High Court level the names of parties (e.g. Hillas v Ward) generally appear on the publicly available court lists on Courtserve and on the printed lists outside courtrooms. Hearings allocated to be heard at High Court level and in the Royal Courts of Justice are usually listed anonymously. Not only is the distinction difficult to justify, but it also means that Reporters (by which we mean accredited journalists and legal bloggers) are unable to find out which cases are being heard and when. The Sub-Group’s recommendation is that all cases, irrespective of the level of judiciary to which the case is allocated, should be named in the published lists, using the names of the parties, together with a short description of the type of hearing that is taking place.
Attendance at hearings
As they are heard in private, the only individuals permitted to attend FRC hearings are the parties, their representatives and Reporters (save where the contrary is ordered by the court). It was notable that this was misunderstood by a large number of those who completed the survey, as analysed in the Report. No change is recommended by the Sub-Group. However, moving forward, it is clear that education is key. Appended to the Report is an extremely helpful paper prepared by the Transparency Project to assist those involved in financial remedies cases if a Reporter attends a hearing. It has been prepared by a member of the Sub-Group, Lucy Reed KC, and is an excellent document.
Provision of documents to Reporters
Even though a Reporter is entitled to attend an FRC hearing, they are presently unable to view any case documents as of right, without the permission of the court. An absence of documentation can make it extremely difficult for a Reporter to understand the background and the issues involved. What then to disclose? There is a tension between, on the one hand, providing sufficient information to enable a proper understanding of what is taking place in the hearing and, on the other hand, the disclosure of documents that may lead to exposure of highly confidential information, such as financial, health or other information of a personal nature. As the default position, the Sub-Group recommends a Reporting Order is made in every case at which a Reporter attends, which sets out the documents to be provided to the Reporter. It is the Sub-Group’s recommendation that this should include at least the ES1 and the position statements of the parties/their representatives. Any objection to disclosure should be the subject of a judicial determination.
This was referred to in the Executive Summary as the issue of greatest controversy. The Report’s lengthy Chapter 12 grapples with competing issues and acknowledges that in every case where publication of the judgment is considered, the court is required to consider the Re S balancing exercise.2 The Sub-Group recommends, on balance, that the default position should be one of anonymity in first instance cases. This was considered as likely in the majority of cases to strike the correct balance between the competing interests. However, the Sub-Group acknowledged that in some cases, the outcome of the balancing exercise would fall the other way, for example, in cases where there has been poor litigation conduct, or conduct outwith the proceedings where the public interest in permitting identification outweighs privacy. Unsurprisingly, the Sub-Group is of the view that this should be decided on a case-by-case basis and is a matter for the individual judge.
The Report is clear that consideration should be given to a standard form of Reporting Order (or, more properly named, a Reporting Restriction Order), which could be made at the first hearing setting out what can and cannot be made public by Reporters. This is intended to provide protection from intrusive and personal identification, whilst also permitting Reporters access to information which will allow them to better understand the case. The Report appends an example of such an order.
Publication of judgments
The Report notes an emphasis on ‘big-money’ cases being reported on the National Archives, in comparison to judgments of Circuit Judges and District Judges in the FRC. More thoroughly considered by the TIG Sub-Group on Anonymity chaired by HHJ Madeleine Reardon, the Report lends its support to all that is set out within that paper in order to encourage an increase in publicised judgments at cases below High Court level.
Implementation of recommendations
The Sub-Group does not decide which recommendations, if any, will be implemented by the President, but the Report grapples with how recommendations could be implemented. It is the view of the Sub-Group that the vast majority of the recommendations would be capable of being implemented without any need for a change of the Rules or of the substantive law. This is not necessarily the case when it comes to the issue of anonymity. The Report offers the conclusion that if the law is as set out by Mostyn J, a change in statute would appear to be required to permit FRC judgments to be anonymised routinely. However, if the countervailing view is correct, then no change in law would be required.
Transparency: the future?
The financial remedies world awaits with bated breath the President’s response to the Report and the approach to be adopted generally on issues of transparency. In terms of the response from the FRC, we note the issue was considered recently by Peel J, the National Lead Judge for the FRC, in his article ‘The Financial Remedies Court: A Year in Review’ published on 27 September 2023.3 Whilst acknowledging that the Sub-Group’s recommendations, in particular with regard to anonymity, ran contrary to the view expressed by Mostyn J, he nevertheless commented that ‘it is consistent with the views expressed by the majority of consultees, and which have been expressed to me by court users and judges over the last year or so; very few have expressed enthusiasm for going further’, and that ‘it seems to me that it is for a higher court to decide the issue once and for all, or (even better) for Parliament to consider what is suitable in the 21st century.’
The authors of this article adopt wholeheartedly the view expressed by Peel J that, in reality, the debate about transparency is likely to affect only a handful of cases and that a better way of informing the public, the media and our lawmakers about the operation of financial remedies cases is to obtain data – for example by harvesting and properly analysing the wealth of information now contained in the D81 – which would show prevailing trends in terms of outcome. Until there is the funding and a commitment to put this into effect, no doubt the debate about transparency will continue to rumble on.