Privacy and Transparency in the Financial Remedies Court

Published: 06/07/2022 07:04

Anyone who has had the benefit and privilege of listening to Mostyn J speak in an extra-judicial capacity will have been afforded a peek into the extraordinary breadth of knowledge and learning of one of England’s most experienced family judges. The range of references that pepper his deliveries – cultural, scientific, legal, historical – is such that the occasion is seldom anything less than a complete tour de force. My own experiences in this regard enable me to mention his command of subjects ranging from the ongoing debate concerning the US Constitution between textual originalists and loose constructionists, all those Downfall parodies that can be found on the internet, the nature of human memory and how that impacts on witness testimony, and Monty Python’s iconic dead parrot sketch.

His judgments not infrequently reveal the same breadth of experience. A reasonably thorough history of family law in England and Wales might be compiled just by cutting and pasting together the relevant sections of many of his decisions. From others, a beginner’s guide to the family law of many commonwealth jurisdictions might be similarly constructed. From the bench of Court 50 at the Royal Courts of Justice much detailed explanation has come forth on not just the current operation, but also the history and social policy/jurisprudential underpinnings of all manner of family law and non-family law issues. To give but a single example, his discussion of the use of Mareva injunctions in financial cases in UL v BK [2013] EWHC 1735 (Fam) changed the practice of obtaining ex parte freezing orders in financial remedy cases virtually overnight. Other judgments have dealt with subjects as diverse as the proper basis for disturbing consent orders, the nature of value judgments as opposed to the exercise of discretionary powers, and the ongoing tension between the objects of fairness and certainty, to name but a few of many, many topics addressed with the exceptional clarity and thoroughness that is his norm.

Bearing those experiences in mind, the wit, wisdom and scholarly industry evident behind his introductory note to this publication, ‘Notes on the Launch of the Financial Remedies Journal’ [2022] 1 FRJ 3, came as no surprise. Karl Marx was the first to make an appearance therein, in the context of certain observations he made on the rights of man as promulgated within the French Revolution. Marx was swiftly followed, in an array of different contexts, by Princess Diana, Sir James Munby, house prices, Lords Clarke, Brown and Carswell, Private Eye and, of course, the weather. If you have ever toggled between The Times and Stephen Cretney’s Family Law in the 20th Century: A History whilst simultaneously listening to Radio 4’s Start The Week with ITV’s Loose Women being screened in the background, you may have found the experience familiar.

And yet, despite his customary mastery of the subject, it was as he discussed the issue of transparency in the family courts that I wondered whether Homer might briefly have nodded. (The origins of this phrase, I am of course indebted to Mostyn J to have discovered, can be traced back to Horace’s Ars.1) I decided in the end that there was much good sense in what he said, but there was undoubtedly at least one point on which Homer, frankly, needed to give his head a good wobble.2

My anxiety began with the following observation:

‘I pointed out in BT v CU [⁠[2021] EWFC 87] and in A v M [2021] EWFC 89 that the current practice of anonymising almost all published financial remedy judgments had no historical constitutional validity; and certainly violated the high constitutional principle of open justice declared in Scott v Scott [1913] AC 417.’

As when those decisions were first published on BAILII, this observation provoked within me the thought, as EH Carr might have put it, ‘What is history?’ I decided to call on my own experiences to help answer this question.

I was called 30 years ago. In my early years at the Bar I earned much needed income from those good people who publish the Family Law Reports by settling headnotes for publication with the full judgments. (I remember my joy, following the publication of the first reported case in which I had appeared as counsel, that my name appeared at the top of the law report rather than the bottom. Equally, I remember the despair I felt, after I had summarised four Thorpe J judgments in the case of F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45 for the princely sum of £45, at the realisation that of the veritable army of lawyers involved one way or another in that titanic litigation, my fee was undoubtedly and by a considerable distance the lowest.)

With the sobering thought in mind that my own experiences might qualify as ‘history’, I crossed my room to the shelves where my own yellowing copies of the Family Law Reports abide, confident in my recollection that throughout my 30 years at the Bar the practice has been – as F v F illustrates – that first instance ancillary relief decisions were published anonymously. My confidence, at least on this occasion, was not misplaced. The first such case I reported was F v F3 [1994] 1 FLR 359, in which one Nicholas Mostyn coincidentally appeared for the wife. That case was indistinguishable from the overwhelming majority of first instance financial cases I subsequently reported in that it was published on an anonymised basis. Even the ones that were not called F v F were anonymised.

So, to the extent that my own career could be said to have begun at some point in history, my own experience persuades me that there is a clear historical basis for the current practice of reporting such cases anonymously. I appreciate that does not quite meet the point Mostyn J was making, but it is a relevant point to make that the current practice is a long-established convention and not simply some modern fad.

While on the whole that particular convention has not changed – at least, not yet – during the course of my own time in the profession, one convention that has changed has been the European Convention for the Protection of Human Rights and Fundamental Freedoms (the Convention), in the sense that the advent of the Human Rights Act 1998 moved the provisions of the Convention onto a statutory footing. Article 8 of the Convention, as is well known, provides:

‘1. Everyone has the right to respect for his private and family life, his home and his correspondence.

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

At this point, I segue to the supermodel Naomi Campbell and the difficulties she had with drug addiction in the late 1990s/early years of the 21st century.4 This is relevant because after that deeply personal tragedy was exposed without her consent in a national newspaper in 2001, Ms Campbell sued the Daily Mirror for damages for breach of confidence. Her claim succeeded at first instance, was reversed in the Court of Appeal, and ended up before the House of Lords in 2004.

Campbell v MGN Limited [2004] UKHL 22 clearly established the proposition that English law does not recognise a tort of invasion of privacy. That said, as Lord Nicholls pointed out, the protection of privacy was at that time at least a fast-developing area of the law, spurred on by the enactment of the Human Rights Act 1998. He described the two competing rights recognised and respected within the human rights jurisprudence, and (crucially) recognised in the 1998 Act, namely the right to free expression and the above-cited right to respect for an individual’s privacy, in these terms ([12]):

‘Both are vitally important rights. Neither has precedence over the other. The importance of freedom of expression has been stressed often and eloquently, the importance of privacy less so. But it, too, lies at the heart of liberty in a modern state. A proper degree of privacy is essential for the well-being and development of an individual. And restraints imposed on government to pry into the lives of the citizen go to the essence of a democratic state ... ’

Lord Hoffmann put the matter this way ([56]):

‘While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right.’

Baroness Hale referred ([136]) to ‘information which is obviously private, including information about health, personal relationships or finance’ before adding ([137]):

‘It should be emphasised that the “reasonable expectation of privacy” is a threshold test which brings the balancing exercise into play. It is not the end of the story.’

It is worth stressing that although the House of Lords decided only by a majority of 3–2 on the facts that Miss Campbell’s claim should be allowed, no doubts were expressed as to the nature of the balancing exercise that must be conducted between the competing rights, nor of the need for interference with the Article 8(1) right by reference to Article 8(2) to be specifically justified.

Bearing in mind Baroness Hale’s observations in particular, it is worth taking a moment to reflect on how exceptionally intrusive the enquiries made in an ordinary financial remedy claim can be. Form E requires a party to give details of: their health; the health of their children (who, of course, each have independent rights to respect for their own privacy); that party’s plans for their children’s schooling; whether they are living with a new partner or intend in the near future to do so; the financial circumstances, so far as these are known, of any such partner (thus invading the privacy and/or breaching the duty of confidence owed to a third party); what (so far as is known to them) their parents or any other elderly relative might have in mind for their wills (another third party); and of course the full range of information required in respect of their own capital and income position – which again potentially requires explanation of third party interests and expectations, thus impacting on the right to privacy and confidentiality enjoyed by yet more third parties.

Could it be any more intrusive?

Even the almost-sacrosanct principle of legal professional privilege is not completely immune from the reach of the duty of full and frank disclosure. A litigant who discloses to their lawyer ownership of property (say) that they have not disclosed to the court must of course either comply belatedly with the duty or find another lawyer. To those practising regularly in the financial remedies field, the need for the court to be furnished with this sort of detail and this level of intrusion into the lives of the parties and those who may surround them is neither new nor surprising. We understand it, we live with it. But such practitioners may be forgiven for perhaps taking the ordinary duty of full and frank disclosure for granted rather more than non-lawyers might, and without necessarily reflecting, each time it is referred to or relied upon, on quite how intrusive it is.

In terms of Convention rights, recognising that these have rested on statutory foundations since the Human Rights Act 1998 came into force, it is easy to see how the disclosure obligation imposed by the Matrimonial Causes Act 1973 both offends the first part of Article 8 of the Convention – the statutory duty could scarcely be more intrusive – but is nonetheless permissible under the second limb as being necessary within a democratic society for various reasons. As Lord Brandon of Oakbrook said so famously in Livesey v Jenkins [1985] 1 AC 424:

‘[I]n proceedings in which parties invoke the exercise of the court’s powers under sections 23 and 24, they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by section 25(1).’

It is significant, however, that it is not the obligation in and of itself to provide full, frank and clear financial disclosure that contravenes the right to respect for a litigant’s private and family life, for the court cannot properly protect the rights and freedoms of the parties without it. The problem is what happens afterwards, when the court is considering what material can or should be published, having been exacted under compulsion. Every reader of this article will be familiar with the clear warnings on the first page of the standard Form E that threaten proceedings for contempt of court and criminal proceedings under the Fraud Act 2006. Every reader will have experience of judges up and down the land delivering stern lectures about the consequences of breach of the duty to provide full, frank, clear, accurate and detailed information about the litigant’s financial circumstances. What the Form E does not do – and neither on the whole do the judges – is explain to litigants that, once they have provided the court with the most private and personal information under threat of consequences of increasing severity, the court retains the right to release all that personal information to the entire world.

Nobody expects the Spanish inquisition, either.

It is instructive to consider other areas where the practice of extracting information under compulsion has consequences in terms of rights specifically protected by human rights legislation. In R v K [2009] EWCA Crim 1640, the Court of Appeal was concerned with an appeal against a conviction in a case where HM Revenue & Customs had been supplied with certain material the husband had been obliged to produce within ancillary relief proceedings. That material demonstrated the existence of undisclosed offshore bank accounts, and in time became the major evidence in a criminal prosecution of the husband for various offences under the taxing Acts. The Court of Appeal held, unsurprisingly, that the privilege against self-incrimination did not absolve a litigant from complying with the duty of full and frank disclosure. As Moore-Bick LJ said, the privilege against self-incrimination could not be invoked as a defence to the disclosure requirement of ancillary relief proceedings because ‘it would be impossible for the court to discharge its duty under section 25 of the Act if it were deprived of the information on which it is required to act’ ([32]). That said, the Court of Appeal followed decisions such as Saunders v United Kingdom (1997) 23 EHRR 313, Procurator Fiscal v Brown (Scotland) [2003] 1 AC 681 and R v Kearns [2002] EWCA Crim 748 in holding that where incriminating material was extracted under compulsion it would be a breach of the husband’s right to a fair trial under Article 6 of the Convention for that material to be admitted in subsequent criminal proceedings. It is significant in terms of the human rights jurisprudence that the obligation to provide private material is, in itself, unobjectionable bearing in mind the fundamental purpose for which that material is generated. It is the subsequent use of that material that potentially creates a difficulty.

The same basic argument can be made in response to the suggestion that there should be greater transparency in the Financial Remedies Court (FRC). There is plainly a societal need for information to be produced, under compulsion, that enables the court to do justice in financial terms between the parties on the breakdown of their marriage. The subsequent and collateral use of material produced under compulsion, however, is much more difficult to justify. Paraphrasing Lord Hoffmann, and starting with Baroness Hale’s point that the material produced under compulsion in financial remedy proceedings is such that it would otherwise be subject to a ‘reasonable expectation of privacy’, is there a sufficient public interest in the publication of otherwise private material to justify curtailment of the right protected by Article 8 of the Convention and the Human Rights Act 1998?

It is helpful to start with the current law. FPR 27.10 provides that ‘proceedings to which these rules apply will be heard in private’. This is a qualified provision, of course, but absent a direction to the contrary, financial remedy proceedings will generally fall within the scope of this rule.

FPR 27.11 provides (so far as is material):

‘(1) This rule applies when proceedings are held in private …

(2) When this rule applies, no person shall be present during any hearing other than— …

(f) duly accredited representatives of news gathering and reporting organisations;

(ff) a duly authorised lawyer attending for journalistic, research or public legal educational purposes; ...’

So the rules permit duly accredited members of the press to attend financial remedy hearings, including of course the trial (but not the financial dispute resolution). There is a power to exclude the press from a hearing, but that is widely regarded as a draconian remedy that should only be exercised where there is a specific need that will not be met by the making of a reporting restrictions order (see e.g. Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Giggs v Giggs [2017] EWHC 822 and FPR PD 27A, para 5.4).

As Mostyn J observed in A v M, however, the mere fact that a hearing is conducted in private does not, without more, provide any basis for restricting publication of what is discussed in chambers. There is no ‘default’ presumption whereby the mere fact that a hearing takes place in chambers means that what is discussed during the course of the hearing is immune from being divulged onwards without specific judicial approval – there would be little point in the rules permitting the attendance of the press if there were. Nonetheless, in view of the concentration within financial remedy proceedings on the most inherently private details, the starting point has been for some time that a degree of protection will be offered to such parties who ask for it in relation to private information disclosed under compulsion (see e.g Appleton & Gallagher v News Group Newspapers Limited & Anor [2015] EWHC 2689 (Fam)).

It is for this reason that while orders are rarely made excluding the press, it has at least thus far been significantly easier to show that an order can justly be made restricting the publication of information referred to during the course of any hearing to which the order applies (see e.g. DL v SL [2015] EWHC 2621 (Fam)). I personally am not aware of a single example of a case where a reporting restrictions order was sought, but refused, in a case where the applicant sought to protect private information that was not otherwise in the public domain.

What this line of cases establishes, however, is that the task of balancing the competing interests of privacy and free expression is left to the individual judge in the individual case. It is true that different considerations are engaged depending on whether one is seeking a reporting restrictions order, where a balance needs to be struck between the Article 8 rights of the litigants and the Article 10 rights of the press, and where a court is considering whether to anonymise a judgment, where the question is whether invading the litigant’s Article 8 rights in the interests of open justice falls within the scope of Article 8(2). Either way, a balance needs to be struck between two competing interests, neither of which has any sort of primacy over the other. As Lord Hoffmann put it in Campbell, the question of whether a particular response is proportionate involves consideration of whether there is a sufficient public interest in publication to justify curtailment of the conflicting right to respect for one’s private life. It would be curious if one test were to be applied at an early stage of the proceedings when an application was made for a reporting restrictions order, and a different test applied at the end of the case when the court was considering the question of anonymity. The balancing exercise should, on the face of it, be conducted in the same way, no matter what point in the proceedings it may arise.

It is worth returning at this point to Baroness Hale’s speech in Campbell. She said ([139]–[140]):

‘139. ... Article 8(1) states that “everyone has the right to respect for his private and family life, his home and his correspondence”. Article 10(1) states that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authorities and regardless of frontiers …” Unlike the article 8 right, however, it is accepted in article 10(2) that the exercise of this right “carries with it duties and responsibilities.” Both rights are qualified. They may respectively be interfered with or restricted provided that three conditions are fulfilled:

(a) The interference or restriction must be “in accordance with the law”; it must have a basis in national law which conforms to the Convention standards of legality.

(b) It must pursue one of the legitimate aims set out in each article. Article 8(2) provides for “the protection of the rights and freedoms of others”. Article 10(2) provides for “the protection of the reputation or rights of others” and for “preventing the disclosure of information received in confidence”. The rights referred to may either be rights protected under the national law or, as in this case, other Convention rights.

(c) Above all, the interference or restriction must be “necessary in a democratic society”; it must meet a “pressing social need” and be no greater than is proportionate to the legitimate aim pursued; the reasons given for it must be both “relevant” and “sufficient” for this purpose.

140. The application of the proportionality test is more straightforward when only one Convention right is in play: the question then is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. It is much less straightforward when two Convention rights are in play, and the proportionality of interfering with one has to be balanced against the proportionality of restricting the other.’

Shortly after Campbell, the need to balance the competing rights under Articles 8 and 10 of the Convention was revisited by the House of Lords in In re S (A Child) [2004] UKHL 47. At [17] in that case, Lord Steyn said:

‘The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd ... For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Second, 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.’

A number of points can be made in this respect. First, it is at the very least questionable whether the routine publication without redaction or anonymisation of judgments containing information obtained under compulsion and examined in hearings conducted in private could, as required by the test formulated by Baroness Hale in Campbell, be said to be a restriction on a litigant’s Article 8 right that has a ‘basis in national law’. The points made above regarding the status of the Convention following the Human Rights Act 1998, the clear wording of FPR 27.11 and the case law developed in cases such as Appleton, Spencer and Giggs would suggest otherwise. Clearly, the domestic law would suggest that the competing interests must be carefully balanced in the light of the facts of the particular case. Neither a blanket approach in favour of privacy nor a blanket approach in favour of transparency is permissible. What is required in every case is a determination as to where the balance lies that is specific to the facts of that particular case. As Lord Steyn said in In re S, where the values under the two Articles come into conflict, what is required is an ‘intense focus on the comparative importance of the specific rights being claimed in the individual case’.

Moreover, that determination must result in a proportionate judgment. It is easy to see why, as Mostyn J said at [104] of A v M, the publication in full of judgments promotes the general public interest in transparency and thus engages a right or freedom recognised under Article 8(2) of the Convention. It is not so easy to see how balancing those rights in a proportionate manner could possibly involve ignoring completely the intensely private nature of the information divulged during the proceedings, and without which the court is unable to function. My own opinion, for what that is worth, is that once the sort of balancing exercise promulgated in Campbell and In re S has been conducted, a judge should be able to answer the following two questions:

(1) In giving effect to the principles of open justice and freedom of expression, what has been done to reflect the individual’s right, recognised by statute, to respect for their privacy?

(2) In giving effect to the individual’s right to respect for his privacy what has been done to reflect the principles of free expression and open justice?

If the answer to either of those questions is ‘nothing’, then in the absence of special facts such as those in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 13155 that might suggest the balance has not been struck at all. It seems self-evident that, at least in the general run of cases (i.e. those not involving unusual or peculiar facts, such as Lykiardopulo) a proportionate response to a recognition that the rights protected by both Articles 8 and 10 are important will achieve a degree of balance between the two. That is, in essence, a compromise. As every reader of this article knows, a compromise between two competing parties will frequently leave neither party wholly satisfied; most if not every reader will be familiar with the feeling at the end of lengthy litigation that defeat has definitely been avoided, but outright victory cannot be claimed. I am not at all sure that achieving a compromise between two competing objectives is all that different.

That sort of compromise, however, is precisely what a proportionate balancing act involves. In the usual run of cases, I would respectfully suggest that a decision on publication that gives no effect to a litigant’s right to privacy and gives full effect to the principle of open justice is not a balancing act at all. The requirement for the sort of balanced judgment envisaged in Campbell or In re S between the principles of transparency and privacy is not satisfied by a court paying no more than lip-service either to the legitimate right and expectation that private information should be kept private, or to the ordinary public interest in open justice.

It does not follow, however, that anonymity will inevitably be the answer. Just as there is more than one way to skin a cat, the authorities demonstrate that a balance between privacy and transparency has been achieved in different ways in different cases. In particular, two fundamental approaches can be recognised in the authorities. The first is the – ahem – historical practice of reporting judgments of ancillary relief awards in full but on an anonymised basis. The second is to publish the names of the parties but without revealing details that are private. The reader will, for instance, scan the judgments in cases such as Appleton or Giggs in vain if searching for details of the capital bases available to Ryan Giggs or Liam Gallagher, and equally in vain for the identity of the ubiquitous Mr and Mrs F.6

The first of these approaches lends itself to enabling the reader to understand why, in detail, an award has been made and thus promotes the public understanding of how the jurisdiction under the Matrimonial Causes Act 1973 is exercised. The second opens a window to the world of the Family Court without revealing the personal information that led that window to be closed in the first place. Where there are reasons for naming the parties, one might say, there are equally valid reasons for keeping private information private; and where there are reasons for making private information public, there are equally good reasons for keeping out of the public domain the identity of the individuals entitled to that respect for their privacy.

Either one of these approaches might suffice on the facts of any given case to give effect to the principle of open justice insofar as to do so is commensurate with the entitlement to respect for the litigants’ privacy. Either might represent the striking of a proportionate balance between the rights – each of them qualified – protected by Article 8 and Article 10. This is the way in general that balance has been struck for decades. There may be good reasons on the facts of any given case why neither is appropriate, as was the case in, for instance, Lykiardopulo, or in Xanthopoulos v Rakshina [2022] EWFC 30 where Mostyn J held that public interest demands that the exorbitance of the litigation between these parties should be reported ‘fully’. Cases of that sort, I venture to suggest, are likely to be the exceptions, not the rule.

An important feature in conducting the balancing exercise between privacy and transparency, it is suggested, will be the question of onwards disclosure of private information disclosed under compulsion. The right to respect for one’s private life is, as noted above, a qualified right. One is entitled to respect for one’s privacy, but it does not follow that there will never be occasions when that right must yield to a more compelling interest. ‘Respect’ in this sense, however, recognises that there are occasions when the parties themselves may wish to make details of their private circumstances public. It is their privacy that is being waived, and it is entirely open to them to release into the public domain material which others would choose to keep private. Compulsion removes that element of personal choice, and thus overrides the requirement that their privacy should be respected. That override is justifiable of course but equally overriding that right for one purpose does not give the court, in this sense an organ of the state, carte blanche to override it for other collateral purposes, too. Information that is obtained under compulsion therefore stands on a completely different footing to information that a litigant may choose to place before the court in pursuit of, or opposition to some application or other.

Returning to Baroness Hale’s speech in Campbell, quite apart from the question of proportionality, it is particularly difficult to see that a default practice of publication in full without anonymisation answers a ‘pressing social need’. There is a clear pressing need for justice to be done in public so far as is possible. Does that pressing need, however, extend to the point where the public interest generally will be harmed by knowing only how Mr and Mrs F’s finances are to be divided, but that harm is avoided if the public is informed that Mr and Mrs F are in fact the Fords of Croydon? That is more troubling. Sometimes, as in Lykiardopulo, the answer is ‘yes’ because the public interest in exposing the egregious nature of the husband’s wrongdoing (to pray in aid the facts of that case) may outweigh his interest in keeping private information private. But in many other cases – a significant majority, one might think – the answer will be ‘no’.

Then again, there may be no good reason for withholding from the public a decision about – say – whether a financial remedy claim could legitimately be pursued by a bigamous applicant, but even so it does not follow that the respondent’s private financial circumstances should be made public. It may be difficult to postulate reasons why such a judgment should be anonymised, but it is equally difficult to see how the ordinary public interest in open justice extends in such a case to requiring that private information produced under compulsion and not crucial to the understanding of that particular decision should be released into the public domain.

Having mentioned the question of anonymity, it is worth pointing to the rules about this. In a nutshell, anonymity is not something that should be conferred by the court at the drop of a hat, but neither should it be regarded as being wholly exceptional in its nature. CPR 39.2(4) provides that:

‘The court must order that the identity of any party or witness 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 party or witness.’

There are two aspects (at least) to the administration of justice that are relevant in this context. The first is the point that the proper administration of justice requires, amongst other things, that the public understands how justice operates. As such, a degree of openness to reflect and reveal the court’s inner workings is appropriate. The second point is that the financial remedy justice system in particular depends upon litigants complying with the statutory duty of disclosure for the reasons already discussed, and that anything that tends to undermine or jeopardise compliance with that duty is to be regarded on the whole as A Bad Thing. It can sometimes be difficult enough to get lay clients to co-operate in terms of complying with that duty as things stand. Anything that might tend to encourage them not to do so, such as the realisation that their private affairs are highly likely to be made public, is not a step that would appear immediately to be in the public interest.

In cases where the court considers that the general interest in open justice requires that the private details of the litigants should be published to better enable a wider understanding of the particular decision, it is easy to see why the court may well conclude that non-disclosure is ‘necessary to secure the proper administration of justice and in order to protect the interests of that party’. The fact that we have been doing it that way for years has served the proper administration of justice by enabling the lay and professional public to understand how a discretion has been exercised, or what principles were engaged, by making available a full exposition of the relevant facts. It does not seem necessary for that purpose that the parties should also be named, and their children exposed to the risk of ‘jigsaw’ identification even if not named directly. There is no difficulty, it is suggested, with anonymity being the quid pro quo for the publication of completely private information that is necessary for a proper understanding of the court’s decision. By contrast, there are other cases where private information is of marginal relevance only to the determination in question. Where the ‘anonymity’ threshold is not met, that would seem to put greater emphasis on the need for reporting restrictions orders to ensure that private information does not unnecessarily enter the public domain.

The question referred to by Baroness Hale whether a ‘pressing public need’ is engaged by the transparency/privacy debate necessarily involves returning to Mostyn J’s point that we have being doing it wrong for decades. Maybe we have, but the fact remains that that is how we have being doing it for decades. The expectation exists that we will continue to do it that way, and it is not helpful to pretend otherwise. The ‘reasonable expectation of privacy’ is underlined, not undermined, by the court’s practice of routinely anonymising judgments.7 There are times when the realisation that something has been wrong for ages results in the discovery that things are, in fact, rotten to the core; but there are other times when that discovery results in the conclusion that we might well have been doing it wrong for decades, but things are not so bad for all that. The law reports, after all, are full of cases where judges reached the right conclusion but for the wrong reasons.

All that said, there is much in Mostyn J’s judgments in A v M and BT v CU that it is difficult to take issue with; the fundamental point I make above is that the human rights jurisprudence requires a proportionate balance to be struck between the right to respect for one’s privacy and the invasion of that right whether in the name of open justice or free expression. The widescale practice of anonymisation via the imposition of the rubric, discussed at length in Xanthopoulos v Rakshina [2022] EWFC 30, no more represents the exercise of a proportionate and balanced judgment on that question than would a default practice of always ordering full disclosure. Equally, however, so would a balancing exercise that always came down the other way. It is for the judge to strike the appropriate and proportionate balance in the circumstances of the individual case, giving due weight to the rights of the parties to respect for their private lives whilst recognising the public interest in free expression, open justice and greater clarity as to how the powers available to the court under Part II of the Matrimonial Causes Act 1973 are exercised. Sometimes, the parties must resign themselves to the fact that their financial circumstances must be made public even though their identities should not. In other cases, the parties should resign themselves to the probability that they will be named in a public judgment even though their private financial circumstances will remain private. All that will fall to be decided by the judge tasked with carrying out that balancing exercise. But the cases where the litigants’ Article 8 right to respect for their privacy is given no effect whatsoever should be few and far between.

What seems undoubtedly correct is that any restriction on what is made public following a chambers hearing can only be based on an application for, and the grant of, a reporting restrictions order which will necessarily involve the balancing exercise discussed above. As Mostyn J put it in Xanthopoulos [121]:

‘[A]nonymisation can only be imposed by the court making a specific anonymity order in the individual case. Such an order can only lawfully be made following the carrying out of the ultimate balancing test referred to by Lord Steyn in Re S. It cannot be made casually or off-the-cuff, and it certainly cannot be made systematically by a rubric.’

Ultimately, it seems to me that the position must be this: if a decision is made that both the names of the parties and the details of their private financial circumstances should be made public, that decision will not survive a challenge based on the Human Rights Act 1998 unless it is the product of a bespoke judgment where the right to respect for the privacy of the litigants is fairly and proportionately balanced against the wider public good. As Baroness Hale said in Campbell, the essential question is whether the private right claimed offers sufficient justification for the degree of interference with the fundamental right. A right recognised under Article 8 may admit a degree of interference, but open justice is not a trump card that beats Article 8 come what may; neither are the rights protected under Article 10.

Thus far I have stressed the importance of the right to respect for the privacy of the individual litigants and the need for that right to be weighed in the balance in every case where it is sought to put a judgment into the public domain that contains private information revealed during court proceedings. In terms of the way in which the Family Court does its business this has been the norm, but in terms of the justice system generally it is very much the exception. It is worth pointing out, however, that the Family Court does not sit in secret as a sort of default setting. There are many situations where considerations far wider than the privacy of the individual litigants are engaged, where the practice of the courts is already to conduct its business with a high degree of transparency. In the context of a divorce per se, such hearings concern questions of status – a divorce is a judgment of the court that one is entitled to rely on against the rest of the world, not merely the other party to the marriage. Such cases are not heard behind closed doors and there are sound reasons why that is the case. Likewise, committal applications involve the liberty of the subject. Such cases provide obvious examples where there is a clear public interest in ensuring that proceedings which are conducted in public. Even appeals in financial remedy cases involve more nuanced questions than the hearings that preceded them. At first instance, the arguments revolve around the fair outcome as between Mr X and Mrs X.8 On appeal, the sole basis for challenging the order made in the court below is that one of Her Majesty’s judges, entrusted by Parliament with the duty of exercising the Family Court’s powers under Part II of the Matrimonial Causes Act 1973 in such a way as to achieve a fair outcome as between the parties, has in some way, shape or form made a complete Horlicks of it. An appeal is not therefore simply a matter of re-running the arguments about what is fair between the spouses, there is an obvious public law aspect to a challenge to the way a public body has exercised a statutory function. That being so, there is an obvious justification for greater transparency in relation to appeals than in relation to first instance decisions.

In the sphere of Children Act litigation, recognising the danger of straying off one tangent onto an even more oblique angle, public law cases in particular involve consideration of the actions of local authorities and other public bodies such as the police or the National Health Service insofar as they impact on the family life of the respondents to such applications. There are very obvious reasons for concluding that such proceedings should be conducted with as much transparency as is possible without harming the interests of the children who are the subject of the proceedings. Similar concerns arise where the state is acting as the Central Authority in Hague Convention cases.

Analogous considerations may apply even in the financial remedy sphere, where the hearing in question is not a first instance financial remedy determination, but is perhaps something in the nature of a set-aside application. In such cases, as with appeals, the point can be made that a claim that a public body has unwittingly exercised its statutory function in a manner that is unlawful for some reason or other is a matter that should not be heard behind closed doors as a matter of principle. In such a case, there is no question of disclosing information obtained under compulsion – all that information was obtained during the original proceedings. Such evidence as is put before the court is that which the parties choose to put before the court. (Mostyn J made precisely that point in BF v CU [2021] EWFC 87, [102], although that was not the basis upon which he decided that case.) The duty of full and frank disclosure does not – indeed, cannot – apply to such proceedings unless and until the original order is set aside and the court is asked to exercise its powers under Part II anew. In such cases, the arguments in favour of respecting the litigants’ right to respect for their privacy are perhaps therefore rather more nuanced.

‘Nuance’ is perhaps the operative word in relation to the wider question of whether greater transparency is appropriate throughout the FRC. Blanket approaches either way fail to discharge the duty upon the court to make a balanced judgment between the competing interests of privacy and transparency. Each has to be respected with the degree of particularity appropriate to the individual case. That will involve an appraisal of the nature of the information that is sought to be protected and the nature of the proceedings in which it was disclosed. It will involve the extent to which the competing principles can be, if not quite reconciled, then given effect to in a way that ensures neither is trampled underfoot.

My own impression of the degree of anxiety that has followed the decisions emanating from the bench of Mostyn J is that it is based on a misconception that he intends routinely to divulge private information about named individuals. If he does, in my respectful opinion, he goes too far. But I am not so sure on reflection that he does. His reference in Xanthopoulos to the ultimate balancing test is precisely the balancing exercise the law requires him to undertake. I do not believe that either he or any other judge will not give the weight that is due to the legitimate expectation that the litigants’ right to privacy will be respected in accordance with Article 8 of the Convention that is merited by the facts of the particular case.

I close, by way of summary, by advancing the following propositions:

(1) The litigant’s right to respect for their privacy is an important right, enshrined by statute. They have a reasonable expectation that their private information, obtained under compulsion, will not be made public.

(2) While that expectation is entirely legitimate it must, nonetheless, be balanced against the principles of open justice and freedom of expression, and a proportionate judgment exercised that is specific to the facts of the particular case as to what should be disclosed.

(3) The practice of routinely anonymising financial remedy judgments without conducting the balancing exercise described above seems to be unlawful.

(4) In many cases, the long-established practice of anonymisation will, in fact, strike the right balance between the competing interests. In other cases, anonymisation may not be appropriate, but that is not to say that private information should not be protected in some other way, for example, by redacting a judgment. Unless there are special circumstances, it would not generally be a proportionate judgment to give no effect whatsoever to the litigants’ right to respect for their privacy.

(5) The need for a balancing exercise between privacy and transparency to be conducted is exactly the same whether it arises at an early stage of the proceedings in the context of an application for a reporting restrictions order, or whether it arises post-judgment in the context of a request for anonymity. Either way, the court cannot wholly overlook the litigant’s right to respect for their privacy in favour of either a right of free expression or a principle of open justice, but neither can it ignore those principles in favour of the right of privacy.

By the way, the other thing of interest Mostyn J said in ‘Notes on the Launch of the Financial Remedies Journal’ [2022] 1 FRJ 3 was that judges should have no problem at all with serious, well-thought-out criticism if judicial observations are considered to be wrong; but as and when they do attract unfair criticism, their response should be to ‘shrug their shoulders and get on with it’.

I am glad he said that, because the thing I really wanted to get off my chest is (continued on page 94).

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