This article addresses four questions posed by Sir Nicholas Mostyn:

(1) How engrained is the practice of anonymisation in financial remedy (FR) judgments?

(2) What rationale was given in those cases for naming the parties or anonymisation?

(3) What is my view of the legal issues in relation to anonymity?

(4) How do I think these issues will pan out?

(1) How engrained is the practice of anonymisation?

In a perfect world, this first question could be answered simply, by counting up the FR judgments that name the parties, and those that anonymise the parties. But this sort of quantitative analysis raises several issues.

What timescale?

In order to analyse the question on a quantitative basis, I have taken a period of 23 months, staring on 1 November 2021 and ending on 29 September 2023. The starting point of 1 November 2021 was the date when Mostyn J handed down judgment in BT v CU [2021] EWFC 87, and declared that, from that point onwards:

‘[113] … my default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations.’

The end date of 29 September 2023 is shortly before the At A Glance conference (11 October 2023), for which the paper on which this article is based was originally prepared.

Which judgments to include and exclude?

There are three main conventions that have applied to the publication of FR judgments.

First, FR judgments at first instance are normally anonymised, subject to the following main categories of exception which for the purpose of this article I describe as follows:

(a) ‘Exception no 1’: The case is already in the public domain, by virtue of earlier hearings taking place in open court, e.g. Crowther v Crowther [2021] EWFC 88;

(b) ‘Exception no 2’: Judicial findings of iniquity, where the ‘… judge may release the judgment for publication in the hope that public scrutiny and condemnation may bring shame to the offender and solace to the offended’ (Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [40] per Thorpe LJ; Hashem v Shayif [2002] EWHC 108 (Fam));

(c) ‘Exception no 3’: Where anonymisation is impractical because of the prominence of the parties (e.g. Spencer v Spencer [2009] EWHC 1529 (Fam), McCartney v Mills McCartney [2008] EWHC 401 (Fam)), or where the parties have courted the press and publication of the judgment would serve to correct false impressions.

Secondly, conversely, judgments on appeal, whether at High Court, Court of Appeal or Supreme Court level, generally identify the parties,1 although, again, there are exceptions:

(a) in ‘very rare’ cases, the protection of children may require an appeal judgment to be anonymised: K v L [2011] EWCA Civ 550 at [25], R v R (Divorce: Interim Maintenance: Circumvention of Sanctions) [2015] EWCA Civ 796;

(b) the vulnerability of a party may warrant anonymisation: see Lieven J’s recent decision in BF v LE [2023] EWHC 2009 (Fam)); and

(c) Schedule 1 cases normally remain anonymised at first instance and appeal, even where significant adverse findings have been made against a parent: DN v UD [2020] EWHC 627.2

Thirdly, FR judgments heard below High Court level are almost invariably anonymised, with very rare exceptions, such as HHJ Wildblood QC’s excoriating judgment in a failed intervenor claim.3 Also, following the FRC Notice of 13 May 2022, judges sitting below High Court level have been requested to refer any issue of transparency to Mr Justice Peel (none have in fact been referred4).

Methodology and table of cases

In order to draw meaningful conclusions from the data (i.e. FR judgments published between 1 November 2021 and 29 September 2023), I have excluded the following cases: (a) decisions heard below High Court level (i.e. which are invariably anonymised); (b) all appeals (where there is an existing convention that the parties should normally be named); and (c) Schedule 1 decisions (which are invariably anonymised).

This produces a table of cases (see the Appendix) of 38 first instance5 FR cases,6 which were heard by a High Court judge (including s 9 judges) and published7 on the National Archives (or BAILII) between 1 November 2021 and 29 September 2023. The judgments that have identified the parties are shaded in grey.

Quantitative analysis

While acknowledging that this is not a scientific study (statistically, 38 is a small sample), an analysis of the table of cases produces the following results:

Answer: The short answer to the first question is that roughly two-thirds of first instance FR judgments heard at a High Court level were anonymised. The ratio of (broadly) two-thirds is close to Sir James Munby’s earlier review8 of FR judgments, which indicated that 73.6% of first instance decisions, anonymised from 1990 to 2021.

How can there be ‘half a case’?

This relates to the ‘Level’ case, which (for reasons which were not explained) has been reported both on an anonymised basis (Roberts J, LS v PS and Q Company [2021] EWFC 108 [2021] EWFC 108, 23 December 2021), and, 3 months later, with the parties named (Nicholas Cusworth QC (sitting as a Deputy High Court Judge) in Simon v Simon and Integro [2022] EWFC 29). It appears in the table of cases as a half point either way; Schrödinger’s set aside, if you like.

(2A) What rationale was given for naming the parties?

The 12½ judgments that name the parties can be broken down into three categories:

• five are judgments of Mostyn J, whose ‘thesis’ on transparency has been set out in detail in cases such as Xanthopoulos v Rakshina [2022] EWFC 30 and Gallagher v Gallagher (No 1) [2022] EWFC 52;
• six are cases which fall into one of the three existing categories of exception, because this is made clear in the judgment (e.g. Peel J’s decision in Tsvetkov v Khayrova [2023] EWFC 130 at [118]) or where this can be inferred from the facts of the case:



Exception 1 (case is already in the public domain due to earlier judgments or proceedings in open court)	Goddard-Watts v Goddard-Watts [2022] EWHC 711 (Fam)9 Pierburg v Pierburg [2022] EWHC 2701 (Fam)10 Backstrom v Wennberg [2023] EWFC 7911
Exception 2 cases (turpitude)	Rose v Rose [2022] EWFC 192 Tsvetkov v Khayrova [2023] EWFC 130)
Exception 3 case (prominence)	Al Maktoum [2021] EWFC 94



• this leaves two cases, which do not fall into one of the existing exceptions (and which are not decisions of Mostyn J):
1. In Traharne v Limb [2022] EWFC 27, W sought (and failed to achieve) findings of coercive control as part of her claim to achieve an award in excess of a PNA. According to a postscript to the judgment, both parties were given the opportunity to seek anonymisation but neither did. Since neither party objected to anonymisation, Sir Jonathan Cohen proceeded to name the parties in the judgment;
2. As noted above, in the ‘Level’ case, an initial judgment was anonymised while subsequent judgments identified the parties (e.g. Simon v Simon and Integro (Level) [2022] EWFC 29), without an explanation either way. It remains unclear if the parties were named for reasons of public interest relating to the facts of that case, or because of more mundane reasons, such as the issue by Level of a separate civil claim which presumably would have been heard in open court. In any event, that question is now academic, since the Court of Appeal has handed down judgment on H’s case management appeal ([2023] EWCA Civ 1048) whereby the case would in any event come within Exception 1.

(2B) Conversely, what rationale was given for anonymisation?

Around two-thirds of the cases in the table of cases (25½ out of 38) were published on an anonymised basis.

Of those, the following explanations were given in the judgment for anonymisation:

This statistic speaks for itself: in the overwhelming number of anonymised judgments, the point of anonymisation is not addressed at all in the judgment. It is unclear if the point was argued out and dealt with separately ‘off piste’ (i.e. outside the published judgment) or was not addressed at all, and the judgment was anonymised by reflex action.

What about below High Court level?

For the reasons explained above, the table of cases does not include judgments below the High Court level. The question arises, have any judges sitting at circuit judge level undertaken the sort of Re S [2004] UKHL 47 balancing exercise promoted by Mostyn J? There are notable cases below High Court level where this has happened, e.g. HHJ Farquhar in X v C [2022] EWFC 79 (see [103]–[118]) and AFW v RFH [2023] EWFC 119 (between [118] and [123]), where, having considered the competing arguments, in both cases the learned judges came down in favour of anonymisation.

Answer: In the 12½ cases that name the parties, five were decisions of Mostyn J (‘… the monarch of the autonomous mountainous Principality of Court 50’13) and six are explicable by reference to existing exceptions. In the vast majority of cases which anonymised the parties’ names, there was no explanation at all in the judgment, about the decision to conceal the parties’ identities, either because this took place ‘off piste’ (i.e. was not recorded in the judgment) or it had not been explored at all.

(3) My view of the legal issues in relation to anonymity

First of all, I concur with the ‘Munby/Mostyn thesis’, that anonymisation of FR judgments, without explanation, backed up by a rubric which has questionable application to most FR cases in any event, is not compliant with the principles of open justice that have been set out by the House of Lords/Supreme Court in cases such as Scott v Scott [1913] AC 417, Re S (A Child) [2004] UKHL 47 and R (C) v Secretary of State for Justice [2016] UKSC 2.

Where I respectfully depart is in relation to the starting point or presumption favouring naming the parties: per Mostyn J in Xanthopoulos v Rakshina [2022] EWFC 30 at [128]:

‘… The correct question is not “Why is it in the public interest that the parties should be named?” but rather “Why is it in the public interest that the parties should be anonymous?” If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.’

In my view, the starting point should be the other way around: a proportionate and fair balance between the parties’ Article 8 rights to private life and the Article 6 and Article 10 principles of open justice and freedom of expression is achieved in most cases by an anonymised judgment, given that:

(a) The scope of disclosure under compulsion in FR proceedings is generally wider than in civil proceedings (Allan v Clibbery [2002] EWCA Civ 45 at [100], cf. the more limited basis for disclosure at CPR Part 31);

(b) There are limits to the legitimate public interest in most FR cases, which are fundamentally private and do not generally involve the state (cf. public law children proceedings): Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [30]);

(c) Anonymisation of judgments promotes full and frank disclosure and the implied undertaking of confidentiality (Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [79]), while satisfying the public interest in understanding how the legal issues (redistribution of assets, etc) are resolved; and

(d) FR proceedings are heard in private (FPR 27.10). This privacy would be undermined if judgments presumptively name the parties.

Against that, I acknowledge the force of Mostyn J’s analysis in Augousti v Matharu [2023] EWHC 1900 (Fam) at [85]–[88] that the above Court of Appeal decisions in Clibbery and Lykiardopulo are not binding precedents. However, those judgments nevertheless consider broad principles and contain persuasive dicta (as does the House of Lords’ decision in Scott, which also concerned a different legislative framework14). I also acknowledge, secondly, the force of Mostyn J’s response to these arguments in Gallagher v Gallagher (No 1) [2022] EWFC 52 at [30]–[49] and Re PP (A Child: Anonymisation) [2023] EWHC 330 (Fam) at [49]–[62], namely that:

(a) Civil claims (including under the Inheritance (Provision for Family and Dependants) Act 1975 and TOLATA) may involve significant disclosure, comparable to FR full and frank disclosure;

(b) There are areas of civil practice (e.g. discrimination and employment) that are also fundamentally private, and involve an implied undertaking of confidentiality, which do not lead to anonymisation;

(c) The stipulation in FPR 27.10 that cases are heard in private denotes a mode of trial and does not make the proceedings secret (see McPherson v McPherson [1936] AC 177 per Lord Blanesburgh15); and

(d) Above all, there is the constitutional principle of the administration of equal justice under the law.

(4) How do I think these issues will pan out?

In ‘A Year in Review’ (27 September 2023), Mr Justice Peel commented:

‘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.’

To my mind, there are a number of ways these issues could pan out:

• Parliament could act, although given its recent record in this area of law and the likelihood of a change of government, the prospect of legislative change impacting on issues of transparency would seem to be a distant prospect.
• We could continue as we have done for the past decade, without a case reaching the higher courts, in circumstances where the leading actors who have championed the cause of transparency (Sir James Munby, Mr Justice Holman and now Mr Justice Mostyn) have now departed the stage. In which case, the wind may go out of the sails on these issues, and the court’s conventional approach to anonymisation will be followed, unless another High Court Judge picks up the standard.
• If a case actually did reach the higher courts, where issues of transparency are fully argued out, and the ‘Munby/Mostyn thesis’ is tested, what might be the outcome? It’s a fool’s errand to anticipate the outcome of a hypothetical case, but I wonder if the Court of Appeal will be reluctant to depart radically from Clibbery and Lykiardopulo, and will keep its thumb on the scales in favour of the parties’ right to a private life, given the narrow circumstances in which the Court of Appeal can disapprove of its own earlier decisions (see Young v Bristol Aeroplane [1944] KB 718, [1946] AC 163 and Willers v Joyce (No 2) [2016] UKSC 44). However, that may depend on how the Court of Appeal panel is constituted and whether it includes Warby LJ.16 Ultimately, it might take the Supreme Court to look at this whole issue anew. Whether the Supreme Court would take a different position is somewhat conjectural!

Appendix – Table of cases

High Court Judge level first instance financial remedy17 cases, 1 November 2021 to 29 September 2023

Note: shading = parties named