DE v AB [2014] EWCA Civ 1064

[2014] EWCA Civ 1064Case No B4/2014/0815
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
BODEY J
FD12P04004
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 24/07/2014
Before
LORD JUSTICE RYDER
Between
DEAppellantABRespondent
Mark Emanuel and Victoria Shore (instructed by Vardags Solicitors) for RespondentThe Appellant appeared in person for in personHearing Hearing date: 24 July 2014
Judgment
[1]This is a preliminary application by a Respondent father who seeks an order that the oral permission hearing pursued by the Appellant mother shall take place in private. As an alternative he seeks an order postponing the naming of the parties to the proceedings until the conclusion of any appeal or until a further order is sought or obtained. I previously directed that the issue be tried as a preliminary matter before the permission hearing with the media to be on notice. The mother opposes the application and has applied in the face of the court for the preliminary application to be adjourned despite the fact that she is ready to proceed to make submissions on her permission application.[2]The mother and the media via the Press Association, were served with the father’s application notice and supporting documents on Monday 21 July 2014 in compliance with the order that I made on 5 July 2014. The media have acknowledged service, there are no submissions in writing and no representative of the media has attended court. The mother submits that a private hearing will prevent her subjecting the orders that she wishes to appeal to public scrutiny and accordingly she opposes the same. Her rationale for an adjournment to allow more time to construct an argument to oppose the father's application has no force if this court concludes that a public permission hearing is appropriate and if, as it appears, the mother is ready to make her permission application today.[3]The mother seeks leave to appeal the orders made by Mr Justice Bodey on 20 December 2013 and 28 February 2014 (sitting in private), dismissing her appeal against the orders made by Senior District Judge Waller on 26 March 2013, in respect of(1) his decision to refuse an application relating to various financial orders that were sought by her on behalf of a child born to the parties, and(2) the grant of an injunction that restrains the parties from disclosing: “to any third party without permission of the court any information or documents disclosed in or used for the purposes of these proceedings” except as to the extent necessary for seeking legal advice and making relevant disclosure to the Child Support Agency or similar body fulfilling equivalent functions.[4]The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with ‘maximum publicity’ by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the 'prohibited information'). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman’s terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail. Background to the hearing[5]These proceedings concern financial provision for the parties’ child under Schedule 1 of the Children Act 1989 brought by the mother in January 2012. The child is known by the pseudonym 'John'.[6]Following a final hearing before Senior District Judge Waller on 4-7th December 2012, 29th -30th December and 8th February 2013, the judge handed down judgment and made an order on 26 March 2013. Paragraph 5 of the order gave effect to the judge’s conclusion that the mother should be prohibited from reporting to outside agencies certain information relating to the father’s sworn evidence. The Senior District Judge’s conclusion on the injunction issue is set out at paragraph 7 of the judgment of Bodey J of 28 February 2014 which is reported.[7]The Judge considered the mother’s opposition to the injunction on the basis of it being a ‘disproportionate interference with her rights’. However, he granted the injunction on the basis that he was:
“particularly concerned that these proceedings involve a young child who may be affected by any proceedings which may be taken against either of his parents or their involvement in continued litigation together… The conclusion that I have reached is that it is manifestly not in the interests of the parties or of John for documents to be disclosed to the Police in circumstances where there is no investigation which is being undertaken to which these documents would be relevant. I am not suggesting that any such investigation should be undertaken. It seems to me that the issues arising from the non-disclosure in 2010 have been dealt within these proceedings. Nothing is to be gained for the parties, or indeed for the public, in disclosure to the Police which would precipitate an investigation by them.”
[8]The mother appealed the injunction and the refusal of her application for various financial orders to the High Court in December 2013. Judgment was given by Bodey J on 20 December 2013, dismissing the appeal. The issue of the injunction was reserved until 28 February 2014 when an anonymised judgment was handed down in public after hearing from counsel for the father and hearing the mother in person and reading her written submissions.[9]In doing so, the Judge considered the competing rights and interests of the parties and, separately, the public interest in disclosure. He acknowledged that the striking of the balance between those interests had been a difficult one for the Senior District Judge to conduct but concluded that he was not persuaded that the way the balancing exercise had been carried out could be characterised as wrong.[10]In a decision given on the papers, the mother was refused permission to appeal Bodey J’s decision to this court. She orally renews her permission application this morning.[11]I heard the father's preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that 'secret justice' is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.[12]Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.[13]As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.[14]At the conclusion of the preliminary hearing, I refused the application for an adjournment of the same, granted temporary orders under section 11 of the Contempt of Court Act 1982 until the conclusion of the permission hearing and heard the permission application in open court. I gave judgment on the permission hearing immediately (reported as In the Matter of J (A Child) [2014] EWCA Civ ****). At the end of the permission hearing and having refused permission to the mother to appeal, I heard further submissions on the orders that are necessary to protect this court's process from being undermined by disclosure of the prohibited information. I made continuing orders under section 11 of the 1982 Act. In making the orders that I did, I accepted the submissions made on behalf of the father which I repeat below as my reasons. Orders currently in place and the publicity of the proceedings[15]The existing injunction which restrains the parties from disclosing any information to third parties operates against the parties only. It does not on its face operate against the world at large. In general, an injunction made against a respondent does not affect a third party. That proposition is, however, subject to the well-known Spycatcher principle, that an interlocutory injunction preventing a person from disclosing the information provided they have been given notice of the injunction. The principle is based on the need to ‘hold the ring’ pending trial: if the information a party is seeking to protect is published in the interim, the purpose of that party’s proceedings would be frustrated.[16]However, since the Spycatcher principle is based on the imperative of preserving the status quo until the conclusion of a trial, it follows that it no longer applies once the trial is over and judgment has been given: see Jockey Club v Buffham [2002] EWHC 1866. In any event, the injunction granted by Senior District Judge Waller appears to have been a final, and not an interim, injunction and the operation of Spycatcher principle therefore does not apply.[17]Further, the Spycatcher principle could not operate to prevent the publication of matters referred to in open court. If such publication is to be prevented, either the court must sit in private, or an order contra mundum must be made. Legal submissions on the law – power to sit in private[18]The father submitted that it was necessary to seek an order that the hearing take place in private on the basis that(a) publicity would defeat the object of the hearing;(b) a private hearing was necessary to protect the interests of the child; and(c) it was in any event necessary in the interests of justice.[19]A court hearing an appeal or an application for permission to appeal may sit in private if the court whose decision is being appealed had the power to sit in private during those proceedings. But the appellate court must give its decision in public “unless there are good and sufficient grounds” for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.[20]Though a case was heard in private, it does not follow that the Court of Appeal will sit in private, on the contrary. Hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.[21]It is axiomatic that the starting point for this court’s consideration of the preliminary application is that open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders made, are public: see, for example article 6(1) ECHR, CPR 39.2 and Scott v Scott [1913] AC 417.[22]Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury observed at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:
"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration."
[23]A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
“But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”
[24]After citing the dictum of Viscount Haldane, Lord Devlin continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”
[25]More recently the importance of the common law principle of open justice was emphasised by nine Justices of the Supreme Court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken(i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and(ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.[26]The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].[27]The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].[28]When considering the imposition of any derogation from open justice, the court must have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings. The Convention and public hearings[29]Article 6(1) expressly recognises that the press or public may be excluded from all or part of the trial. It provides; “In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”[30]Furthermore the Strasbourg court has recognised in B v United Kingdom; P v United Kingdom [2001] 2 FLR 261 that the article 6 requirement to hold a public hearing was subject to exceptions. The court said: “….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that ‘the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice’. Moreover, it is established in the Court’s case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …” [37][31]Article 10 is also relevant to the principle of open justice, since the right to receive and impart information, which is guaranteed by article 10(1), may be engaged where measures are taken in relation to court proceedings to exclude the media and/or prevent information from becoming publicly available. The right guaranteed by article 10(1) is however qualified by article 10(2):
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
[32]These qualifications reflect the fact that freedom of expression may conflict with other important values, including the rights to life and to bodily security protected by articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by article 6, and the right to respect for private life, protected by article 8. Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8, a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, is proportionate in the circumstances. The approach which should be adopted was considered in detail by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, and by Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697. Application to the present case[33]In the present case, the father contends that the balance to be struck at the permission hearing is between, on the one hand, protection of public discussion of matters of legitimate interest in a democracy and, on the other, protection of the integrity of particular court proceedings or of the administration of justice more generally.[34]While it is acknowledged that there is a public interest in reporting proceedings in the Court of Appeal the father contends that it will be impossible for the permission hearing to take place without details which are the subject of the injunction being discussed at that hearing. Those details could as a result enter the public domain and, moreover, become reportable by the media. If such information were to be disclosed prior to the determination of any appeal, the purpose of the proceedings would not only be prejudiced but the process of the court entirely subverted.[35]The father contends that it is necessary for the permission hearing to be heard in private in the light of the threat made by the mother that she would publish materials unless a payment is made to her. While the media may respect any restriction imposed, such as a section 4(2) order postponing any reporting or reporting of the names of the parties, there is a real and objectively verifiable fear that the mother may seize the opportunity of asking a member of the public who is in attendance at the hearing to report to the police or any other authority any information that is disclosed during the course of submissions. In his submissions the father presumed (and was entitled to presume in the circumstance that the threat was truly made) that the mother would attempt to bring to the hearing those who may be sympathetic to her case and a danger lies therein that such individuals may disclose certain information to assist the mother in the event that they were not restrained from doing so. This concern is not without foundation, as the mother in fact breached confidentiality in the course of the court proceedings below by disclosing confidential documentation and information to a journalist overseas.[36]Furthermore, given the existence of the public but anonymised judgment of Bodey J, the father submitted that there was a legitimate concern that if the permission application was heard in public, it would only be a matter of time before jigsaw identification took place.[37]It is for these reasons that I agree that it is necessary for the Court to impose restrictions on the publicity of the hearing but given the fact that I have not found it necessary to conduct a trial into the truth of the allegation about the threat and because the public and the media are absent, that I have come to the conclusion that the necessary restrictions can be provided for in a more proportionate way than by hearing the permission application in private. Court of Appeal – powers to restrict reporting of the hearing[38]Section 12(1) a of the Administration of Justice Act 1960 will not apply to the present hearing if it is to be heard in public. As a consequence, any matters discussed in open court at the permission hearing can be freely reported.[39]Reporting is prima facie not restricted unless the Court of Appeal makes an order in the proceedings. In children cases, s. 97(2) Children Act 1989 does not apply in the Court of Appeal: see Pelling v Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).[40]This Court has observed that it is necessary to analyse whether, on a consideration of the competing rights in each case, anonymisation of proceedings and judgment is necessary: Pelling v Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.[41]It has been recognised in the authorities consistent with the requirement of the degree of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General v Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow “a much less drastic derogation from the principle of open justice”, namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press. Viscount Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively.[42]In the recent case of A v British Broadcasting Corpn[2014] UKSC 25 the Supreme Court considered the circumstances in which the principle of open justice can be departed from. The father relies on the court’s unanimous judgment as authority for the proposition that a court is empowered to grant anonymity to a party to proceedings where the publication of an identity would render the proceedings largely pointless. In that case, the appellant broadcaster sought to challenge the decision of the Court of Session to grant the respondent an anonymity order in respect of an application for judicial review. The respondent had been convicted of serious sexual offences and had been challenging an attempt to have him deported under the grounds of Articles 2, 3 and 8 of the European Convention on Human Rights (“ECHR”).[43]It was accepted on behalf of the Home Secretary that A’s deportation would be unlawful unless the section 11 order remained in place: in the absence of the order, there would be a real risk that A’s identity and history as a sex offender would be publicised, and that such publicity would expose him to vigilante behaviour in his country of origin, contrary to his rights under article 3. The BBC reclaimed against the decision to refuse to recall the section 11 order, and also challenged the previous judge’s decision to make the order in the first place.[44]The justices unanimously held that the publication of A’s identity, or of information enabling him to be identified, would have subverted the basis of the tribunal’s decision to authorise his deportation. That decision had been based on an assessment that there was no real risk of a violation of article 3 if A’s identity was not publicised in connection with the deportation proceedings. The decision would have been undermined, before the challenge to its validity was determined, if his identity was published in the meantime. A fresh application to be allowed to remain in this country could then have been made on the basis of the new factual situation created by the publication of his identity in connection with the deportation proceedings. That application would then have required to be considered by the Home Secretary, and a fresh decision made. The publication of A’s identity would therefore have frustrated the judicial review proceedings before the court. Indeed, the entire proceedings since at least 2007 would have been rendered largely pointless.[45]In those circumstances, it was plainly necessary in the interests of justice, and in order to protect the safety of a party to the proceedings, to depart from the general principle of open justice to the extent involved in the making of the orders. It also followed that the section 11 order was not incompatible with the Convention rights of the BBC. In the circumstances where the publication of A’s identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBC’s article 10 rights was unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10(2), were to be maintained. Put shortly, the order had to be made if the court was to do its job, notwithstanding the resulting restriction upon the BBC’s capacity to do its job. The interference with the BBC’s article 10 rights was also necessary for the protection of the rights of others, namely the right of A not to be subjected to violent attack.[46]As the court ruled at [38] “it has long been recognised that the courts have the power to permit the identity of a party or a witness to be withheld from public disclosure where that is necessary in the interests of justice”.[47]As the court concluded at [48] whether a departure from the principle of open

justice was justified in any particular case would depend on the facts of that case:

“As Lord Toulson observed in Kennedy v The Charity Commission [2014] UKSC 20 at [113], "the court has to carry out a balancing exercise which will be fact-specific. Central to the court’s evaluation will be the purpose of the open justice principle, the potential value of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others.”
[48]Applying that approach to the present case, the father submits that the weight of the open justice principle cannot outweigh the risks that are inherent to the disclosure of the identities of the parties and the child or information that tends to lead to their identification.[49]The permission application before the court is to appeal two reasoned judgments of two separate judges to restrain the mother from disclosing certain material. It would be, echoing the words of the Earl of Halsbury, an absurdity and an injustice if the matters which are currently the subject of the appeal could be discussed in open court and be reportable prior to the decision as to whether such an appeal is permitted. The hearing in question would be made the instrument of destroying the very thing, the injunction, it was intended to protect.[50]Furthermore, the fact of the existence of the anonymised judgment of Bodey J significantly enhances the risk that if the parties are named prior to the outcome of the hearing or any permitted appeal, that the information restrained would in any event enter the public domain through jigsaw identification. This court finds itself in the position encountered by Bodey J, that is if during the hearing information currently subject to the injunction is discussed in open court and is rendered reportable, “it would effectively be to give the mother everything she seeks, something which [I] think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA”.[51]Accordingly I shall order that the proceedings be held in public but subject to immediate and continuing publicity protections so as to prevent withheld and prohibited information from being disclosed into the public domain without the permission of the court. There shall be anonymisation of the reporting of the identities of the parties and the child and any information likely to lead to the identification of the child and the order made by Senior District Judge Waller shall be extended to cover this hearing.[52]At the conclusion of the permission hearing and after permission had been refused and further argument heard, I extended the orders made during the proceedings to protect any prohibited information inadvertently disclosed during the hearing. For the avoidance of doubt, the injunction made by SDJ Waller continues to have effect. The precise terms of the orders that I made are annexed to this judgment.