The Financial Remedies Sub-Group of The Transparency Implementation Group, chaired by HHJ Farquhar, produced its long-awaited Final Report, dated April 2023 but published in May 2023, Transparency in the Financial Remedies Court.

On 6 July 2023 I published Groundhog Day: A Response to the Report of the Financial Remedies Sub-Group of the Transparency Implementation Group. It will not have made for comfortable reading, but I make no apologies for that: this is an important topic on which candour and precision are vital. Of the TIG Report, as I shall refer to it, I said, ‘It is a long, detailed and in many ways impressive report though unhappily … demands critical analysis (in both senses). Though there is much to support, there is, I regret to have to say, much to criticise.’ I stand by that, and by everything else I said, though I do not repeat it all here.

On 14 December 2023 the President published The Transparency Reporting Pilot for Financial Remedy Proceedings dated 11 December 2023. It comes in five parts. First there is Guidance From the President of the Family Division (the Guidance), which is followed by Annexe I, What to do when a reporter attends (or wants to attend) your hearing: A guidance note for judges & professionals, Annexe II, Draft Final Transparency Order, Annexe III, Draft Interim Transparency Order, and Annexe IV, Rubric: Draft Judgment Rubric where the judgment is published.

Annexe I in fact reproduces a document originally published by the Transparency Project which has pointed out, in a blog dated 17 December 2023, that it ‘relates to the media or legal bloggers attending, as they are entitled to do, general family court hearings’ – in other words, it is not a document focusing on financial remedies proceedings.

I also observe that what are for present purposes the key paragraphs 9 and 10 of the Draft Final Transparency Order set out in Annexe II are, save for one inconsequential amendment (the substitution in para 10(g) of ‘save for’ in place of ‘except for’), identical with what had been proposed in the TIG Report.

The President is very clear as to his approach. In the Guidance (paras 6, 8) he says:

‘The sub-group has analysed the legal position in some detail, but rightly has not sought to express a view as to whether the contrary approach taken by Mr Justice Mostyn is correct at law. Instead, it has considered where the balance should lie between Articles 8 and 10 (regardless of whether the starting point at law is one of reportability or not) and reached conclusions as to the extent to which reporting should be permitted in financial remedy cases … [The Pilot Scheme] will adopt the recommendations contained within the report of HHJ Farquhar’s group.’

No one can challenge this prudent and pragmatic approach. But it has serious implications which need to be borne in mind.

I start with two fundamental points.

The first is the crucial importance of open justice. There are very many statements at the highest level to that effect. I take just two.

In Scott v Scott [1913] AC 417 at 447, Earl Loreburn described the rule that English justice ‘must be administered openly in the face of all men’ as an ‘almost priceless inheritance’. One hundred and three years later, in R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444 at [1], Baroness Hale said:

‘The principle of open justice is one of the most precious in our law. It is there to reassure the public and the parties that our courts are indeed doing justice according to law. In fact, there are two aspects to this principle. The first is that justice should be done in open court, so that the people interested in the case, the wider public and the media can know what is going on. The court should not hear and take into account evidence and arguments that they have not heard or seen. The second is that the names of the people whose cases are being decided, and others involved in the hearing, should be public knowledge.’

The second is to dispute the widespread, but wholly false, belief that secrecy is justified when, and because, the rules require proceedings to be heard ‘in private’. The law, stretching back to Scott v Scott and finding authoritative expression in more recent times, makes plain that a hearing in private is just a mode of dealing with judicial business, and does not impute secrecy to the proceedings – with the consequence that the proceedings and any judgment given in such a private hearing can be fully reported in the absence of an order made under s 11 Contempt of Court Act 1981.

Hence, it is clear law, established by the House of Lords in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, that restrictions on publication not otherwise imposed by law can be imposed only following a judicial ‘balancing exercise’ which has regard to and balances the interests of the parties and the public as protected by Arts 6, 8 and 10 of the Convention, considered in the particular circumstances of the case. This last point is vital, reflecting what Lord Steyn said in In re S at [17]:

‘an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary (emphases added).’

It seems to be common ground (and, rightly, in my view) that, whatever the correctness of Mostyn J’s analysis, the key to the present problem is the undoubted applicability of the Re S balancing exercise.

The TIG Report was clear and unequivocal on the point (para 11.4):

‘the focus is on a party’s right to privacy versus the general right of freedom of expression and to receive information without the interference of public authorities. A shorthand way of putting it is “privacy v. transparency”. Decisions involving the exercise of those rights will invariably require a judge to balance competing Convention rights, particularly those set out in Articles 8 and 10. This process is referred to within this Chapter as the “Re S balancing exercise”, with reference to Lord Steyn’s speech (emphasis added).’

Very recently the point as been made by Peel J with pellucid clarity in Tsvetkov v Khayrova [2023] EWFC 130 at [116]:

‘All that said, whether the starting point is as per the long established practice (i.e. non reportability unless the judge orders otherwise) or as per the thesis of Mostyn J (ability to report unless prohibited by the court), if the court is considering whether to permit or prohibit (as the case may be) reporting, it will need to carry out the Re S balancing exercise.’

My fundamental criticism of the TIG Report was (and remains) that, having correctly enunciated the key principle, it failed to carry it through into its recommendations. It proposed (paras 2.14, 2.15) that anonymity should be the ‘default position’ or ‘presumption’ and recommended (para 11.53) that the existing practice of anonymising judgments should continue:

‘However, the Group has taken account of the strong support for the existing practice of anonymising judgments and recommends a continuation of that practice.’

Indeed, the TIG Report went on to recommend (para 2.16) that ‘there should be a standard form of Reporting Order (RO) setting out what can and cannot be made public by reporters.’ The key provisions of the proposed Reporting Order, so far as material for present purposes, were to be found in the following paragraphs 7 and 8:

‘7. A reporter may publish any information relating to the proceedings save to the degree restricted below.

8. No person may publish any information relating to the proceedings to the public or a section of it, which includes:

a. The names and addresses of the parties (including any intervenors) and their children and any photographs of them;

b. The identity of any school attended by a child of the family;

c. The identity of the employers, the name of the business or place of work of any of the parties;

d. The address of any real property owned by the parties;

e. The identity of any account or investment held by the parties;

f. The identity of any private company or partnership in which any party has an interest;

g. The name and address of any witness or of any other person referred to in the hearing except for an expert witness.’

These recommendations, I said, were not compatible with a proper application of the Re S principle as indeed – correctly – enunciated by the TIG Report itself (in para 11.4).

But there is a further problem.

An important point which Mostyn J goes on to make is that the fundamental problem about anonymity which he has identified cannot be resolved by the Rules Committees. Primary legislation is required. He has convincingly demonstrated that, absent further primary legislation, there is no power in the Family Procedure Rule Committee to impose such restrictions generally, whether by rule or by practice direction: see Xanthopoulos v Rakshina [2022] EWFC 30 at [140], Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370, [2023] 1 FLR 120 at [82]–[85], and Augousti v Matharu [2023] EWHC 1900 (Fam) at [92]–[93]. Nor, it must follow, and as Mostyn J has recognised, can the President do so by issuing guidance. Non-statutory Presidential guidance can no more change the law than can a statutory practice direction.

As he said in Gallagher:

‘to create a scheme providing for standardised anonymisation of financial remedy judgments will require primary legislation.’

So far as I am aware no one has challenged this part of Mostyn J’s analysis. Indeed, on this point the TIG Report seems to have accepted that Mostyn J was correct, for, under the heading ‘Implementation’, it makes this important point (para 2.20):

‘The vast majority of the recommendations would be capable of implementation without any need for a change of the rules or of the substantive law. The issue on which we are not able to state the relevant method of implementation is that of anonymity. If the law is as set out by Mostyn J then a change in statute law would appear to be required to permit FRC judgments to be anonymised. If the approach of many other High Court Judges is correct, then no change in law would be required.’ (emphasis added)

This is a point of critical importance. Whether or not change can be implemented without a change in statute law depends upon whether or not, on the fundamental issue of anonymity, the law is as Mostyn J has set it out. In other words, one cannot proceed on the basis that there is no need for change in statute law unless first satisfied that Mostyn J is wrong on the law relating to anonymity.

Against this background I return to the Guidance.

It is striking that there is no reference at all in the Guidance to Re S (though it is referred to in Annexe I, paras 2(e), 4(a)) and that there is no reference at all in the Guidance to what the TIG Report had seen as the potential difficulty in proceeding without a change in statute. Given the centrality of these matters, these omissions are surprising. What is particularly regrettable is that nowhere in either the Guidance or Annexe I does one find the clear statement, which given general misunderstandings is so necessary, that, as Peel J put it,

‘whether the starting point is as per the long established practice (i.e. non reportability unless the judge orders otherwise) or as per the thesis of Mostyn J (ability to report unless prohibited by the court), if the court is considering whether to permit or prohibit (as the case may be) reporting, it will need to carry out the Re S balancing exercise.’

Carrying out the Re S balancing exercise is not just desirable: it is necessary and moreover in every case if the law is to be complied with.

What for present purposes is the central core of the Guidance is this (paras 19–23):

‘19. Where a reporter attends, the court will consider making a standard Transparency Order in accordance with Annexe II. The court retains the discretion to direct that there should be no reporting of the case. The order shall ordinarily be expressed to last “until further order” but the court may consider a specific time limit.

20. A Transparency Order may be made at any stage of proceedings, but it is expected that a Transparency Order will be considered and, if appropriate, made, at the first hearing attended by a reporter.

21. The draft Transparency Order at Annexe II provides that the reporter may publish what is said in court, subject to the restrictions contained in the Transparency Order designed to preserve anonymity and confidentiality. The draft order also provides that witnesses shall not ordinarily be identified, save for expert witnesses.

22. It is anticipated that a judge may decide to make an interim Transparency Order in certain circumstances. Most commonly, this might be at the start of a final hearing, in circumstances where the judge decides to adjourn consideration of the Transparency Order until conclusion of the hearing, and wishes to prohibit any reporting of the case in the meantime. At Annexe III is a draft interim Transparency Order.

23. The court may at any time modify or discharge the terms of the Transparency Order as it considers appropriate. Notice should usually be given of any application to do so.’

The absence of any reference to Re S, never mind the failure to emphasise its vital importance, makes what is said in paragraph 19 especially problematic. For it gives the unwary the impression that the choice is between making a transparency order in ‘standard’ form or ‘direct[ing] that there should be no reporting’ – a false dichotomy that does not begin to address the key issue.

In Groundhog Day I said of the TIG Report that:

‘it seeks to rely … upon opaque and inadequately explained proposals for the use of a Draft Standard Reporting Order, seemingly as a means of escaping from the problem, which it does not really grapple with, that the implementation of such a policy, unless it is implemented by Re S compliant orders, will require primary legislation.’

The disheartening conclusion is that the Guidance is no more compatible with a proper application of Re S than were the proposals put forward in the TIG Report.

The ordinary rule is a presumption in favour of open justice with any derogation permissible only where ‘strictly necessary’, requiring close consideration and clear justi?cation. And such an exception can only be expressed by means of a formal order made under s 11 Contempt of Court Act 1981.

The Guidance turns these principles on their head, for the practical effect of the Guidance will be the imposition of anonymity in almost all cases.

I do not of course dispute that the Guidance lawfully permits a transparency order to be made in a case heard in private which is not subject to either s 12 Administration of Justice Act 1960 or s 97 Children Act 1989, provided that it is clearly understood that the Re S balancing exercise is undertaken authentically and not with an inbuilt presumption that the order will be made.

But, unfortunately, such a presumption, directly at odds with Re S and therefore unlawful, is pretty clearly in place. Paragraph 2.15 of the TIG Report – not disavowed in the Guidance – says so. But the Guidance seems to go further. Without putting too fine a point on it, the Guidance propounds a policy of anonymisation to be applied save in limited circumstances. It is true that the wording in paragraph 19 of the Guidance does not actually say in so many words that the court must make the anonymity order; but when its language is read in the context of the Guidance read as a whole and, in particular, the policy articulated in, for example, paragraphs 6–8 and 28–29, there is a strong implication that such an order should be made almost automatically in every case where a reporter attends, unless, of course, the court adopts the alternative more stringent suggestion of prohibiting reporting together.

So far as concerns paragraph 10(g) of the proposed Transparency Order as set out in Annexe II, I repeat the point I made in Groundhog Day:

‘I do have to question the proposed prohibition on naming “any … person referred to in the hearing except for an expert witness.” Is it seriously being suggested, for example (and one can think of many others), that one should not be able to identify a judge previously involved in the proceedings or in other, related, proceedings? I would hope that this is merely the consequence of poor drafting following insufficient thought.’

I do not know, and from a purely personal point of view I do not care, whether anyone has read Groundhog Day and considered this point. But the point remains, in my view, sound. Why on earth, to take my example, should that judge not be named?

In relation to the Rubric, the Guidance says this (para 29):

‘In the light of the proposed changes, it is envisaged that a new rubric should be included in judgments which are intended to be released publicly. The rubric contains alternative scenarios:

a. Where no reporter has attended, and no Transparency Order has been made;

b. Where a reporter has attended, and a Transparency Order has been made.

A draft rubric is attached at Annexe IV. It is in the alternative, and appropriate deletions/amendments should be made in each given case.’

The proposed Rubric as set out in Annexe IV provides as follows:

‘This matter was heard in private. The judge gives permission for this version of the judgment to be published. In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified. [In this case a Transparency Order has been made on — — which continues in effect]. All persons, including representatives of the media and legal bloggers must ensure that the terms of this rubric [and the terms of the Transparency Order], are strictly observed. Failure to do so may be a contempt of court. [Adapt as appropriate]’

I note that this is identical to the form of Rubric proposed in the TIG Report except for the addition of the square brackets; the substitution of ‘Transparency Order’ for ‘Reporting Order’; the insertion of the words I have italicised; the substitution of ‘may’ for ‘will’ before ‘be a contempt of court’; and the addition of the instruction, in bold, ‘[Adapt as appropriate]’. None of these minor changes affects the substance, nor do they begin to meet the two points I made in Groundhog Day:

‘1. Why does the proposed rubric recite that the judge has given permission for the judgment to be published? As Mostyn J has laboriously explained, this is needed in the case of a judgment in proceedings to which section 12 of the Administration of Justice Act 1960 applies but otherwise is not needed. The wording is otiose and misleading; its inclusion simply serves to perpetuate misunderstanding and subtly to reinforce the dangerous fallacy that financial remedy cases are so different to all other financial disputes that they should normally be shrouded with a mantle of secrecy.

2. Why are the words “In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified” included before and therefore seemingly independent of the following reference to a Reporting Order. And, if intended to operate independent of the RO, what is the legal basis for such a prohibition? In the light of my own judgments, to which Mostyn J has referred, I have to suggest that the only answer to my question is: none at all. Would it not conduce to clarity (and, indeed, a better understanding of how the rubric operates) if the wording was transposed so as to read:

“In this case a Reporting Order has been made on – which continues in effect. In particular the Reporting Order provides that in no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified.”’

I do not dispute that, where a transparency order has been made, a confirmatory rubric along these lines could be made, provided that it is clearly understood that the rubric cannot and does not prohibit more than is prohibited by the terms of the transparency order.

The Guidance (para 29) contemplates, however, that, even where a transparency order has not been made, a rubric should nevertheless be attached stating that any breach of the anonymity within the judgment may be a contempt of court.

This, to speak plainly, is extraordinarily troubling. If a transparency order has not been made, then how can such a rubric lawfully be imposed and what effect can it possibly have?

Enforceable anonymity of a judgment given in private can only be achieved by an order made under s 11 Contempt of Court Act 1981. Such an order should as a matter of good practice be served on the media before it is sought and, in any event, requires a full Re S balancing exercise. A rubric is not an order made under s 11 1981 Act. And whatever it is, it will not have been the subject of an application supported by evidence either served on the media (as a matter of good practice) or on all other parties. One wonders to what extent it will, in reality, have been considered formally by the court at all.

In relation to these points it is necessary also to bear in mind paragraph 10 of the Guidance:

‘The pilot will encompass the following proceedings:

a. Applications for financial remedies upon divorce;

b. Applications under Schedule 1 of the Children Act 1989;

c. Applications under Part III of the Matrimonial and Family Proceedings Act 1984.’

How, I ask, can precisely the same form of Rubric be appropriate both in cases under Sch 1 1989 Act (to which s 12 1960 Act applies) and in cases involving financial remedies upon divorce (to which s 12 does not apply)? The short answer is that it cannot.

There is a further point which arises under what is said in paragraph 12 of the Guidance:

‘Cause lists for all FRC courts, including cases heard at the Royal Courts of Justice, will name the parties and state that the proceedings involve financial remedies.’

Consider this example: The case is listed with the names publicly displayed. No journalist attends, so there is, in accordance with the Guidance, no transparency order. What if a journalist publishes a report saying:

‘Today, before HHJ X, the case of Smith v Smith (who live at Acacia Avenue and Privet Drive) was heard. I understand from reliable sources that [and there follows an accurate account of the hearing including of the judge’s extempore judgment].’

Has the journalist committed a contempt, and, if so, why?

Or consider this example: the case is listed with the names publicly displayed. No journalist attends, so there is, in accordance with the Guidance, no transparency order. What if the judge, following the Guidance and the form of Rubric set out in Annexe IV, attaches to the judgment a Rubric in this form:

‘This matter was heard in private. The judge gives permission for this version of the judgment to be published. In no report of, or commentary on, the proceedings or this judgment may the parties or their children or their addresses be identified. All persons, including representatives of the media and legal bloggers must ensure that the terms of this rubric are strictly observed. Failure to do so may be a contempt of court.’

What, I ask, is the legal basis for this asserted prohibition on naming the parties?

And consider another example. Suppose that, in a case where no transparency order has been made, the judgment is published anonymously with the proposed rubric, but a party then discloses on social media their identity and those of the other party and the children, as well as details of any business that had been anonymised. Would it then be possible for contempt proceedings to be taken against that party founded upon the terms of the rubric? The answer surely is that it would not.

In each of these cases, I have to suggest, the rubric would be a brutum fulmen.

I end by asking, as I must, why the Guidance – so admirable in other ways – seemingly embraces what I worry will in reality prove to be wholesale, routine, near-automatic anonymity.

I fear that the outsider, viewing matters from a perspective away from the desert island, will respond with the searing observation that it simply reflects an inveterate practice which, however unprincipled and despite Mostyn J’s fulminations, shows no sign of abating, and is founded on nothing more substantial than the weary trope: ‘we believe we are different and we have always done it this way’.

I hope I am wrong, because I ardently want the Pilot to be a great success.