The Unintended Consequences of Law – a Postscript

Published: 20/06/2022 20:38

Not long ago I wrote a tiresomely long post about what I will call the transparency in financial remedy (FR) cases, a topic about which there has been much recent debate (see Very Much Ancillary. Others may quibble about the use of the term ‘transparency’ but to me it encapsulates a topic which has several components (open justice, accountability, privacy, freedom of expression). After many more words than I had intended to assemble I got down to the nub of it and suggested some rule changes as a possible way forwards.

Last week saw promulgation of Gallagher v Gallagher (No. 1) (Reporting Restrictions) ⁠[2022] EWFC 52, a summary of which you can find here. In it Mostyn J makes the brave submission (hee hee) that I have fallen into error in my earlier article. In fact, on reflection, I think the error I had made was to be insufficiently clear about what I was actually proposing and about which bit of the multi-faceted problem that Mostyn J’s recent judgments bring us all, I was hoping to solve or ameliorate. I am going to boldly say that, notwithstanding that a bigger brain than mine is pulling a face at my suggestion, I don't actually think I was substantively wrong. But nor is the position straightforward.

This post is an attempt to be clearer. And more concise.

So, what problem was I trying to solve? Or… what circle was I trying to square?

It seemed to me that one inevitable consequence of the recent batch of judgments from Mostyn J on these issues (wherein he says that the parties are not entitled to anonymity as of right or even as a default) was that there would potentially be a marked increase in the number of reporting restriction applications that would be made in FR cases – either during any period of uncertainty or going forwards if it became settled that Mostyn’s view was correct. I am working on the basis that it is unrealistic to think that there will be any swift falling of scales from eyes as all the litigants and lawyers up and down the land come to see that they and their clients must just accept public identification as an inevitable consequence of litigation. No, I recognise that in reality most litigants are still going to scramble to maintain their privacy where possible, and most lawyers instructed by them will fiercely defend such privacy any way they can think of. Such is the way of things. For some litigants staying under the radar will be better than making an application, but overall there is likely to be an upward trend in the number of applications.

Regardless of your view of the legal issues, this vista brings with it a number of unattractive resource consequences – both for the litigants themselves and for the system. Nobody really wants the system further swamped with applications if there is an easier (but also lawful) way of resolving these issues. In my last post I wondered if there was a different way to square the circle that ensured adherence to the law on open justice and privacy, without causing the system to further grind to a halt. The current rarity of publication by any FR judge below High Court level does limit the extent of the ‘problem’ for now, as many litigants will just keep a low profile in the hope of avoiding any press interest or publication at all. All well and good as long as the opposing party doesn’t decide to exercise a bit of leverage. But what will happen if and when the President’s aspirational 10% of judgments are published? And what will happen if other High Court judges follow Mostyn J’s lead (currently there isn’t much sign of that, but we will see).

So, with my best helpful face on, I looked at the Court of Protection as a possible model. I emphasise that I’m not a CoP lawyer. But as a transparency enthusiast I do watch CoP closely, largely facilitated by the Open Justice Court of Protection Project. In that court, PD4B provides that the court will ‘ordinarily (and without any application being made)’ make an order to sit in public and in the same order will provide for restrictions on the publication of information which will ‘ordinarily’ be in standard terms. Those standard terms provide for the anonymity of ‘P’, the adult lacking capacity whose interests are being considered. The rest of the PD sets out some useful pointers for what factors the court might consider in thinking about whether there is ‘good reason’ to do something different, and it gives some illustrative examples of what that something else might be (for example exclusion of the media for some or all of a hearing).

In FR proceedings the court is (per Mostyn J) already ‘in effect’ sitting in open court. I had envisaged a similar provision in the FPR that provided for an ‘ordinarily’ sort of scenario. If it can be lawfully done in the Court of Protection why can’t it be done in the FRC? (the question of whether a capacitous adult who elects to litigate ought generally to have anonymity at all is a slightly separate question on which there are a range of views, but I predicate this proposal on the basis that the preponderant view amongst family court judges, professionals and their clients is probably that they ought to. You can accuse me of backwards engineering, but this isn’t a judgment!)

Well. Those who have been following the thread of this through the various recent judgments will have noted the tendency for the whole jumper to unravel when you pull one loose end. And so, it seems prudent to just ‘check in’ as to the lawful basis of the ‘transparency order’ being routinely issued in the Court of Protection (CoP), without application and without therefore specific notice being given to the media. Logically, this sort of set up is either potentially lawful across arenas (and available for deployment in some shape or form in the FRC) or it is unlawful in all (and then its big uh-ohs).

The background to the CoP Transparency Order is that it was devised for the purposes of a pilot launched in early 2016. It followed a round table discussion about how to improve transparency in the Court of Protection, which at the time sat in private without a right of access to the media. The Transparency Order was the vehicle which enabled the CoP to move its operations (largely) into open court. The consequence of it has been to vastly increase the openness of that jurisdiction, and to have actually supported and significantly furthered the open justice principle. Without it CoP would still be sitting in private. I dare say without it CoP would need to seriously consider retreating behind the curtain of ‘secrecy’ for which it was previously (and still is occasionally) criticised. That would be a great shame.

I am not aware of the media ever arguing that the scheme itself was unlawful or that they ought to have been served with a formal application, but they can be seen regularly challenging the terms of the order in cases where they have a particular interest or think that the order is inappropriately hampering their ability to report. I imagine that on a practical level the media far prefer the existing set up to that which preceded it. It is, regardless of its lawfulness, considerably more open, and in practice facilitates more freedom of expression than was possible before. One sees from time to time, the Court of Protection adjourning to facilitate submissions from the media, but there is no suggestion that in each and every case a formal application must be made and served before P can be afforded anonymity. Such a position would be absurd.

But…to be lawful the CoP scheme does have to be consistent with s12(2) HRA 1998, which provides for the media to be given notice before an injunction restricting Art 10 ECHR can be made, with very limited exceptions. What isn’t apparent from anything I can now find online, either in the round table materials or the announcements of the pilot back in 2015/16, or on the face of the original or current PD itself, is any explicit reference to s12(2) HRA (the requirement to give notice to the media before restricting Art 10 rights) or how it is said the provisions of the PD are compatible with it. And nor is there any reference to in the rules or PD, which use discretionary flavoured language.

I had always vaguely taken the publication of the PD to act as a sort of constructive general notice to the media that this is what will be happening in each CoP case on the published court list, but until recently I had never particularly considered the CoP framework in terms of s12(2). Nor can I think of a judgment where I’ve seen art 12(2) specifically tackled.

If I want to argue this sort of framework could be transposed into another jurisdiction to remedy a problem of lawfulness, I need to be able to articulate how it is lawful in CoP. I’m going to try and do that here, but a little part of me is very conscious of the tendency of the Family Court to sometimes ‘forget’ s12 protection when making injunctive orders (see for example this twitter thread by Greg Callus. Part of me suspects that I may not be the only one to have overlooked or mentally fudged this.

To make this argument I’m going to draw a parallel here with yet another jurisdiction: infant settlement hearings in civil proceedings – see CPR 39.

In JX MX v Dartford & Gravesham NHS Trust ⁠[2015] EWCA Civ 96 the Court of Appeal gave general guidance for how to deal with anonymity for children and protected parties in personal injury claims. Whilst the decision is directly applicable only to those classes of litigant (whereas adult parties in FR proceedings are generally capacitous), there are some aspects of the guidance given which it is possible to carry across. IF the class of adult litigants in FR proceedings (given the nature of disclosed material in their proceedings and the general levels of public interest applicable to such cases) are meritorious candidates for anonymity, this case offers further support for a general rule as a proxy for actual notice being both appropriate and pragmatic solution to the problem.

In that case the court’s stated that any order for anonymity had to be made on the basis of necessity, but that:

‘there are occasions on which the principle of open justice must give way to the need to do justice in the instant case … Any exclusion of such proceedings from [the open justice] principle therefore must be found in an overriding need to ensure that justice in the broader sense is done in the individual case.’

The guidance to first instance judges in this sort of case was therefore that where a matter was publicly listed and the media able to attend, it was not necessary for a formal application for anonymity to be made. Instead, the judge should invite submissions from the parties and any media present before making an order, and ‘unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family’.

This judgment is clear in its terms, but again, it does not reference s12 HRA at all.

Subsequently in Zeromska-Smith v United Lincolnshire Hospitals NHS Trust ⁠[2019] EWHC 552 (QB) a vulnerable but capacitous adult claimant was refused her application for anonymity, the court distinguishing Gravesend. Gravesend clearly isn’t authority for the proposition that adults in FR cases are entitled to anonymity. But it does demonstrate the sort of process that the Court of Appeal has accepted as proportionate, workable and legitimate where an identified class of person or case is very likely to have a justifiable case for anonymity.

In V v Associated Newspapers Ltd & Ors ⁠[2016] EWCOP 21 the then Vice President of the Court of Protection, Mr Justice Charles, dealt with a case where there was a dispute about the continuation of reporting restrictions in the Court of Protection (not long after the pilot had come into force - you may remember this as the ‘woman who had lost her sparkle’ case).

The judgment contains an interesting discussion of the (somewhat different) structure of the rules in that jurisdiction, and of the important distinction between turning the tap on and turning it off, which I am alive to but don’t have space to fully explore here. To summarise for the sake of balance though: by deciding to sit in public CoP is turning the tap on, and decisions on anonymity merely regulate the flow of the tap – in FRC arguably the tap is already on by virtue of the rules rendering hearings quasi-public, and thus any decision to make an anonymity order is a decision to turn the tap off. Here the analogy breaks down and the best I can do is to observe that whilst the tap is on at the wall it is only really in the High Court that anyone is operating the shower attachment on the other end!).

Charles J considered (amongst other cases) the Dartford & Gravesend case. In V, Charles J made clear that a default position for or against a public hearing and for or against anonymisation did not offend against Re S (A Child) (Identification: Restrictions on Publication) ⁠[2004] UKHL 47 or amount to a presumption in favour of one article over another, but that rather, the court had to adopt a staged approach and to consider both issues in conjunction with one another (the one might facilitate the other).

Charles J said that the first stage was to consider whether there should be a public hearing. Given the FPR and the Mostyn analysis of the (inadvertent?) degradation of ‘privacy’ occasioned by the 2009 rule change, the equivalent first question for our purposes might be to consider whether the hearing should be quasi-public (FPR 27.10 ‘private’), fully public or private with a capital P (i.e. by excluding the media as permitted by FPR 27.11(3)).

‘But [said Charles J] this first stage is not an isolated or preliminary stage [...] This is because the weight of the main competing factors at this stage namely:
i) the public interest in justice being administered in public, and
ii) the personal and private nature of the issues to be determined by the COP
will nearly always be affected by the existence and the likely effectiveness and impact of reporting restrictions.’

At paragraph 91 he said this :

‘the default rule, and any practice direction that modifies it, represent a general conclusion on how best to administer justice. In reaching that conclusion a balance will have been struck between the relevant competing Convention rights and the factors, propositions and public interests that underlie them. But Re S makes it clear that this is not the end of the process and that as between Articles 8 and 10 (and so the factors and matters and public interests that underlie and promote them) neither takes precedence as such in a given case and so, in my view, it would be wrong to approach a default rule or practice as creating a presumption. Rather, it is part of the structure for a reasoning process that applies the Re S approach to a given case.’

Referring to the judgment of Lady Hale in Re C v the Secretary of State for Justice ⁠[2016] UKSC 2 he goes on to say (at 94) that:

‘In my view this recognition of the validity of a conclusion that generally in certain types of case (including proceedings in the COP) the administration of justice will be best promoted by either a private hearing or a public hearing with effective reporting restrictions, supports the view that on a staged approach to a particular case of that type the weight of the naming propositions, and so this aspect of the factors that underlie and promote Article 10, will often fall to be taken into account in the context of (i) the validity of the reasons for their application in that case, and (ii) the impact of a departure in that case from the general conclusion on what generally promotes the administration of justice in cases of that type.’

The judgment clearly identifies alongside the importance of the open justice principle, the importance of the administration of justice as an aspect of Article 6 :

‘The Re S exercise has been called one of parallel reasoning and in the context of this and other similar cases it engages competing titans who start level and none of them hold a trump card. As was accepted by the media Respondents one of the factors (and so titans) in this case is the administration of justice.’

The concept of the implied undertaking, the extent and nature of which has been severely challenged by recent Mostyn analysis, is of course closely bound up with the need to secure the proper administration of justice.

The V judgment reiterates the distinction between an anonymity order and a reporting restriction per se, noting the usual ‘what’s in a name’ argument, but also quoting Lady Hale in Re C:

'However, in many, perhaps most cases, the important safeguards secured by a public hearing can be secured without the press publishing or the public knowing the identities of the people involved.'

That of course, is broadly what I argued in my last article in respect of many FR cases. Gallagher is a reminder, though, that not all FR cases will fall into that category, and one does not need to read far into the substantive judgment in that case to fully appreciate the proper public interest in the identification of that particular couple (rich people spending exorbitant amounts of money litigating a simple case again).

Charles J concluded as follows :

‘96. I suggest that generally the COP should address the following questions:
i) Are there good reasons for the hearing to be in public?
ii) If there are should a public hearing be ordered with or without reporting restrictions?
iii) As part of (ii): How effective are any such reporting restrictions likely to be in protecting and promoting the relevant Article 8 rights and how restrictive are they likely to be of the relevant Article 10 rights having regard to the factors, propositions and public interests that underlie and promote those competing rights?
iv) By reference to the conclusions on the above questions, on Lord Steyn's ultimate balancing test, should the hearing be in private or in public and if in private what documents (with or without redactions and anonymisation) should be made public (and when and how this should be done) and if in public what reporting restrictions order / anonymity order should be made?’

Note that Charles J didn’t shy away from saying that the 'The answer to question (i) is almost always going to be "yes" because of the benefits of open justice and so almost always the Re S exercise will be engaged by addressing points 96 (ii) to (iv)'.

Similarly, Mostyn J himself said (in effect) in paragraph 43 of Gallagher, that the answer to the question of whether children should be named in FR judgments concerning their parents is almost always going to be ‘no’:

‘I strongly suspect that in most cases an order, if sought, would be justified which prevents the direct naming of any minor children, publication of photographs of them, or identification of their schools or where they live. The Re S balancing exercise would normally lead to that decision. It would prevent the children seeing their personal details in a newspaper or online. That would cause gratuitous upset and should normally be prohibited. I struggle to conceive of a financial remedy case where Article 10 would trump the other rights and allow these details to be published.’

Once one accepts that it is legitimate to identify certain categories of case or class of individual which are likely in most instances to demand a similar outcome on the question of anonymity – there is no proper principled argument against a similar approach in respect of other classes. The only question that remains is whether the particular class in question is generally deserving of that approach. In Very Much Ancillary I argued that in many if not most ‘ordinary’ cases there would be insufficient public interest to necessitate naming of adult litigants as opposed to anonymised publication of their judgments. Drawing on the ‘sparkle case’, the justification can also be articulated with strength from an administration of justice perspective (the potential chilling effect the spectre of identification might have upon compliance with duties of disclosure, the frankness of evidence, participation in proceedings generally and on the level playing field), although I acknowledge the force in the counter arguments that such issues apply equally to any adult participant in civil litigation. I acknowledge there are a range of views on this topic. For my part, the reporting of the facts is generally (but not always) going to be more critical than the names, and if in order to facilitate the reporting of anything it is necessary to lose the names, so be it (again, in most cases).

I need to return to the question of s12(2) though. Is my undeveloped notion of constructive notice good enough to save a process designed to deal with issues of anonymity without requiring unnecessary formality? How is my constructive notice idea articulated in terms of s12(2)? I think the answer is this:

As per Charles J, the rules do not tie the hands of the court, they provide a framework through which the court can and must exercise its function in each case pursuant to s6 HRA and in accordance with Re S – to balance the competing rights and make an individualised decision about the format of the hearing (public/private/hybrid), and about what may and may not be reported. The rules and PD are expressed in discretionary terms rather than mandatory terms (may, not must) but must be read in conjunction with the Art 6 duty which runs through everything the court does – and ‘where it appears to the court that there is good reason’ for doing something other than sitting in public or making an anonymity order the court is empowered to depart from the ‘ordinary’ scenario. As long as the court, pursuant to its s6 duty as expressed through the framework of the PD / rules, considers what the specific case demands there is no difficulty with Re S. The problem would be if the ‘ordinary’ became automatic, or if orders were issued without any judicial consideration. That doesn’t mean there is a need for some exorbitant hearing on the topic, or a long judgment - merely that the court actually applies its mind before confirming the ‘ordinary’ position is appropriate or that something else is required. The Re S exercise need not be time consuming or complex in most cases (though undoubtedly in some cases it is far from straightforward).

But what about notice to the media? It’s arguable, I think, that the general awareness of the framework on the part of the media (and dare I say it their tacit support of it) coupled with their notice of and right of access to hearings in order to make representations where they wish to do so, is sufficient. That is to say: this ‘constructive knowledge’ and an entirely workable route through which representations can be made is itself a ‘compelling reason’ to relieve the parties or the court of the need to notify the media in each and every case. The media should be (and in my experience are) notified of any proposed order in any case where they are already known to have an interest (and sometimes where something has gone wrong in CoP with the public notice of a hearing they are retrospectively notified so they can be heard). Anecdotally, my understanding is that there are already vast numbers of applications served on the media via the Injunction Application Alert Service which they have no interest in challenging, and I doubt very much that the media particularly want to be swamped by lots more applications, where the vast majority will not be cases they will have the resources or enthusiasm to attend.

A word of warning though. It’s all very well for me to say this is a good enough basis to be able to skip around s12(2), but it isn’t me who has to be persuaded. To comply with s12(2) the judge in the individual case needs to be so satisfied, because it is that individual judge making an order which potentially offends against s12(2). In most cases they might not need to agonise for long to reach that conclusion, but again, for the process to be compliant I think there does need to be an application of the judicial mind both to the signposts in the rule and PD AND to the constraints of s12(2).

In some cases, perhaps where anonymity seems to be strikingly inappropriate or where it is obvious the media would wish to object, the court might not be able to properly conclude that there is no need for case specific notice to begiven to the media – even if they haven’t attended so far. I don't practice in the Court of Protection so it’s for others to comment, but my impression as an outsider who reads a lot of commentary about the CoP, is that the judicial mind is not always applied to the appropriateness of the transparency order until it is asked for by an observer who wishes to know the terms on which they may report (there are regular reports of difficulties getting access to the order). The impression is that the transparency order is often forgotten and only actually promulgated when it is requested by an observer. It should, per Charles J in V, be considered as part of the staged process of deciding that the hearing will proceed in public, and in most cases will be a facilitative condition of that public hearing. Others can comment better than I on this issue (if indeed it is one).

All that said, and whilst I think it would be a stinker to draft, I do think that it would be possible and helpful to have some form of ‘ordinary’ position contained in the FPR to deal with anonymity in FR proceedings. In light of the discussion above, I would have thought that any such rule should contain mandatory wording signposting the court to s12(2) and s6 HRA (omitted from my rough sketch previously).

It also occurs to me that one inadvertent consequence of Mostyn’s revelations about the unnoticed impact of the 2009 rules upon the meaning of ‘privacy’, is that as per V it may now be easier (at least in Mostyn’s court) to argue for the exclusion of the media – on the basis that it is the right of access for the media which causes and is the practical vehicle for the dissemination of private information in such cases. Passages in Gallagher seems to represent an attempt to tidy up the complicated boundaries now in terms of what a litigant discloses and to whom, but if Mostyn J is right that material deployed at a private hearing may be reported by the media, it remains unclear to me what stops a litigant from publishing that information (say on their own blog) following the hearing, regardless of the attendance of the media. It isn’t the media’s actual physical (or remote) attendance that makes a hearing quasi-public, it is the existence of the entitlement to attend (absent any order excluding them). I wonder tentatively whether one answer to this is that a judge may be able (in an appropriate case) to injunct an individual party from disseminating information in breach of the implied undertaking (which would not require notice to the media s12(2) to regulate the parties’ conduct.

The issues I’ve raised here for the first time and re-considered for a second are illustrative of the perhaps unforeseen ripple effect of Mostyn J’s contention that much of what we are doing has been unlawful. Whenever one starts to look for parallels and equivalences it demands analysis of the lawfulness and source of the judicial power in those parallel environments. Perhaps this is all pain for gain and will result in a healthier system in the long run, but it is certainly making my head hurt.

And in a related strand, I still haven’t got an answer to my query at the end of my last piece: if rule 27.11 renders an FR hearing not really in private, doesn’t this mean all our Children hearings are also not really in private, the effect of which would be to strip away (inadvertently) the privacy protection afforded by s12 Administration of Justice Act 1960?

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