Spencer v Spencer [2009] EWHC 1529 (Fam)

THIS JUDGMENT WAS DELIVERED IN PRIVATE THOUGH IN THE PRESENCE OF MEDIA REPRESENTATIVES. THE JUDGE HEREBY GIVES PERMISSION - IF PERMISSION IS NEEDED - FOR IT TO BE PUBLISHED[2009] EWHC 1529 (Fam)Case No FD06D04962
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Tuesday, 23 rd June 2009
Before
MR. JUSTICE MUNBY(In Private though in the presence of media representatives)
Between
COUNTESS SPENCERPetitionerEARL SPENCERRespondent
B E T W E E N:
_________Transcribed by BEVERLEY F. NUNNERY & COOfficial Shorthand Writers and Tape TranscribersQuality House, Quality Court, Chancery Lane, London WC2A 1HPTel: 020 7831 5627 Fax: 020 7831 7737_________MR. L. MARKS QC, MS. C. COWTON and MS. M. FAGGIONATO (instructed by Manches) appeared for Petitioner.MR. N. MOSTYN QC and MISS E. CLARKE (instructed by Fladgate) appeared for Respondent._________J U D G M E N T
[1]I have before me proceedings listed as FD06D04962. As the form of that number might suggest, they are ancillary relief proceedings. In fact, they are the final hearing of ancillary proceedings between Countess Spencer and Earl Spencer, a fact which is in the public domain, not least because of an article which appeared in the Daily Mail newspaper this morning setting out various pieces of information – none of which, so far as I can see, involved any breach of the law.[2]Unsurprisingly in the circumstances, the media are here. When the case was called on I was faced with an application, made jointly by Mr. Lewis Marks QC on behalf of the petitioner Countess and Mr. Nicholas Mostyn QC on behalf of the respondent Earl, for an order that I exclude the media from the hearing altogether.[3]The application is made in consequence of the recent dramatic change in the law brought about by the coming into force on 27 April 2009 of the Family Proceedings (Amendment) (No 2) Rules 2009, SI 2009/857. Those rules, in essence, did two things: First, they introduced into the Family Proceedings Rules 1991, SI 1991/1247, a new rule 10.28 dealing with what was referred to as “Attendance at private hearings” – in other words, dealing with the question of access to family proceedings. Second, they repealed rule 10.20A and substituted for it a new Part XI in the Family Proceedings Rules dealing with “Communication of information” but (and this is important to realise for present purposes) only in relation to “proceedings relating to children.” The Rules say nothing as to the reporting of proceedings.[4]The new rule 10.28 is general in its application, applying to all proceedings held “in private” in family courts, subject only to an exception set out in rule 10.28(1) which it is correctly common ground does not apply here. It is, accordingly, and correctly, common ground that rule 10.28 applies to the present proceedings. It is also common ground that the effect of rule 10.28(3)(f) is to permit “duly accredited representatives of news gathering and reporting organisations” – that is to say, those who are “duly accredited” in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor in accordance with rule 10.28(8) – to be present during the hearing unless the court exercises its power under rule 10.28(4).[5]Rule 10.28(4) provides as follows:
“At any stage of the proceedings the court may direct that persons within paragraph (3)(f) shall not attend the proceedings or any part of them, where satisfied that – (a) this is necessary – (i) in the interests of any child concerned in, or connected with, the proceedings; (ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or (iii) for the orderly conduct of the proceedings; or (b) justice will otherwise be impeded or prejudiced.”
Rule 10.28(5) provides that, before exercising that power, the court must give any representative of the media who is in attendance an opportunity to make representations. (i) in the interests of any child concerned in, or connected with, the proceedings; (ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or (iii) for the orderly conduct of the proceedings; or[6]As I have mentioned, the new rules came into force on 27 April 2009. There were no transitional provisions. In my judgment, rule 10.28 applies to any proceedings, whether commenced before or after that date, and, indeed, applied to any hearing which on 27 April 2009 was part-heard. The fact that the proceedings in the present case began with the issue of the Countess’ petition on 26 September 2006, shortly thereafter followed by her Form A on 2 November 2006, does not of itself exclude the rule. Nor has the contrary been argued either by Mr. Marks or by Mr. Mostyn.[7]Rule 10.28 is supported by, and to an extent elucidated in, the President’s Practice Direction of 20 April 2009 “Attendance of Media Representatives at Hearings in Family Proceedings”. Paragraph 5.1 of that Practice Direction reads as follows:
“The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (4) of the rule”
. Paragraph 5.2 of the Practice Direction indicates that, when considering the question of exclusion on any of the grounds set out in paragraph (4) of the rule, the court should:
“specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings.”
In other words, as the Practice Direction recognises, the power of the court under rule 10.28 is a power which can be exercised either as to the whole or as to any part or parts of the hearing. Paragraph 5.2 of the Practice Direction continues that, when considering the question of exclusion, the court should:
“consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (4)(a) of the rule”
. Given the way in which the submissions before me have developed, I need not read the rest of paragraph 5.2. Paragraph 5.3 of the Practice Direction indicates that the purpose of paragraph 4(a)(iii) of the rule is to enable the court “to address practical problems presented by media attendance”. No such practical problems have been suggested here, and I need say no more about that.[8]Central to the arguments before me is what is contained in paragraph 5.4 of the Practice Direction:
“Paragraph (4)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. Examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion may include: • a hearing relating to the parties’ finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or • any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.”
The absence of the qualifying words “other than a party” in the latter part of the second limb of paragraph 5.4 shows that the power to exclude the media where there is a “significant risk that a witness will not give full or frank evidence in the presence of media representatives” is a power which can, in appropriate circumstances, be exercised not merely in those cases where the witness in question is not a party but also where (as here) the witness in question is a party. • a hearing relating to the parties’ finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or • any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.”[9]Two days later, on 22 April 2009, the President issued a document entitled “President’s guidance in relation to applications consequent upon the attendance of the media in Family Proceedings”. Having identified, in paragraph 8 of that document, authorities which it was suggested provided useful summaries of the position relating to the publication of matters relating to proceedings in private, paragraph 9 noted that those decisions all concern the interests and welfare of children and that:
“the approach in ancillary relief proceedings (which are also likely to be productive of media applications) has not been the subject of similar judicial consideration and guidance”
. That is not altogether accurate, for it is correctly common ground before me that there is such authority, albeit that, so far as I am aware, the only authority which in modern times bears upon the question of access to, or reporting of, ancillary relief proceedings is Clibbery v Allan [2001] 2 FLR 819, on appeal [2002] EWCA Civ 45, [2002] Fam 261. So far as concerns ancillary relief proceedings, the only further assistance to be derived from the Guidance is in paragraph 18 which reads:
“So far as ancillary relief proceedings are concerned, policy, privacy and Convention issues may also arise for decision, albeit the interests of children may not be engaged.”
[10]Appropriately, the argument before me has touched upon section 12 of the Administration of Justice Act 1960 (as amended), although, correctly, it is common ground that it has no application in the present case.[11]Section 12(1)(a)(iii) of the Act has the effect – I put the matter generally but sufficiently precisely for present purposes – that it is a contempt of court to publish “information relating to proceedings before any court sitting in private” where the proceedings “relate wholly or mainly to the maintenance or upbringing of a minor”.[12]Now one can conceive of circumstances in which an application for ancillary relief, albeit brought by a wife, might nonetheless focus in the particular circumstances so intensely upon the financial and other circumstances of the children as possibly to bring the case within the prohibition in section 12(1)(a)(iii) of the Act, a proposition which is accepted in principle, although suggested to be “unlikely” in most cases, by the authors of the “Review of Access to and Reporting of Family Proceedings” issued by the Lord Chancellor’s Department (as it then was) as a consultation paper in August 1993. As it is put in paragraph 2.40 of the Review:
“The children’s needs may be an important factor in determining the adults’ needs, particularly for property adjustment, and anything paid to the adult with whom they live will normally benefit them as well.

(a) ”

[13]The topic was touched upon briefly by Charles J in the only judgment which, so far as either I or counsel are aware, has been given by any judge of the Division since the coming into effect of the new regime, X v X, where the judgment was delivered in Manchester on 27 April 2009. That was a case of ancillary relief proceedings where the husband sought an order for the exclusion of the media on the basis (see paragraphs 6-9) of his concern that the consequence of publicity might be to inflict severe damage on his property business, and perhaps even bring it to a premature end. The application failed but, in the context of explaining why, Charles J, at paragraphs 17-18, contemplated that there might be other means of protecting particular pieces of information which would avoid the need for complete media exclusion; in particular, he seems to have contemplated that section 12 of the Administration of Justice Act might apply.[14]With respect to my brother, although, as I say, I can accept that section 12 may theoretically apply in certain very unusual ancillary relief cases, I have to say that, in my judgment, it is unlikely in the extreme to apply in the generality of ancillary relief cases, for the very reason which, in fact, he had earlier identified at paragraph 13 of his judgment:
“I accept that there will be points in this hearing relating to the parties’ private finances and possibly relating to the children, but the focus of these proceedings, albeit that the first consideration of the Court is the welfare of the children,” – that is, of course, a reference to the opening words of section 25(1) of the Matrimonial Causes Act 1973 – “will not be on the welfare of those children; it will relate to the financial affairs of the parties.”
In many ways this observation, with which I wholly agree, reflects not merely the circumstances of that case and the circumstances of the present case, but also the reality of the vast bulk of ancillary relief cases.[15]One of the issues in the present case, and in this respect the present case differs not at all from many ancillary relief cases whatever the economic circumstances of the parties may be, is as to the size of the accommodation which, for the future, the wife will need to house both herself and the children. In that sense this case (like many such cases) will involve evidential investigation into, and a judicial determination in respect of, the housing needs not merely of the wife but also of the children. But it has correctly not been asserted that this factor brings section 12(1)(a) of the 1960 Act into operation. It plainly does not. Nor, I might add, would a dispute about whether, for example, the wife needed the assistance of a nanny.[16]I should perhaps add at this point that, even in cases where section 12 of the 1960 Act does apply, it is not the effect of section 12 to protect the anonymity of anybody involved in proceedings – not even the anonymity of the children. The reason why children’s anonymity is protected in children proceedings is not because of section 12 of the 1960 Act; it is because of section 97 of the Children Act 1989, a provision which applies only in proceedings brought under that Act.[17]There was also reference in the course of argument to the Judicial Proceedings (Regulation of Reports) Act 1926, section 1 of which (as amended) provides as follows: “It shall not be lawful to print or publish, or cause or procure to be printed or published –(a) in relation to any judicial proceedings any indecent matter or indecent medical, surgical or physiological details being matters or details the publication of which would be calculated to injure public morals;(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for the dissolution or annulment of a civil partnership or for the separation of civil partners, any particulars other than the following, that is to say: (i) the names, addresses and occupations of the parties and witnesses; (ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment: Provided that nothing in this part of this subsection shall be held to permit the publication of anything contrary to the provisions of paragraph (a) of this subsection.” (i) the names, addresses and occupations of the parties and witnesses; (ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given; (iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon; (iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment:[18]Mr. Mostyn argues that, in the light of the crucial words “in relation to any judicial proceedings for dissolution of marriage”, and because ancillary relief proceedings are, as their very name suggests, ancillary to proceedings for dissolution of marriage and are, indeed, carried on within the same suit and under the same number, section 1(1)(b) of the Act applies to restrict what may be published in relation to ancillary relief proceedings. In support of that proposition he refers to, and relies upon, my judgment in Clibbery v Allan [2001] 2 FLR 819, where I expressed the view (see paragraphs 64-68) that section 1(1)(b) of the Act applies to ancillary relief proceedings. However it must be pointed out that that expression of opinion, although based upon and, indeed, following the view to the like effect expressed in para.2.29 of the Review, was, strictly speaking, obiter, for Clibbery v Allan was not a case of ancillary relief proceedings. It was, as I made clear (see paragraph 69), a claim under Part IV of the Family Law Act 1996 to which, on any view, section 1(1)(b) of the 1926 Act does not apply. Clibbery v Allan, of course, went to the Court of Appeal. In her judgment ([2002] EWCA Civ 45, [2002] Fam 261 at paragraph 72, [2002] 1 FLR 565 at paragraph 71), the President, Dame Elizabeth Butler-Sloss, having referred to the 1926 Act and to my observations on the point, said: “This may be the case but we heard no argument on it”.[19]Mr. Mostyn and Mr. Marks do not in fact seek any relief in relation to, or dependent upon, the 1926 Act. They merely assert that, consistently with what I said in Clibbery v Allan, section 1(1)(b) of the Act applies and invite me to make abundantly clear to the media that those prescriptions apply. I decline to do any such thing.[20]There is no need for me to express any views about the true meaning, ambit and effect of the 1926 Act in order to determine the only application which is before me, namely an application to exclude the media. Both Mr. Mostyn and Mr. Marks made it clear, in terms, in response to a question which I quite deliberately put to each of them, that they sought no specific relief in relation to the 1926 Act. Anything I might say on the subject would, as it seems to me, amount to no more than an advisory opinion and an exhortation to the media, which it is no part of my judicial function to give and which, indeed, it would be no responsibility of the media to honour.[21]The fact is that because, unsurprisingly, Mr. Marks and Mr. Mostyn make common cause in this application, I have heard no adversarial argument on the point. Judges do not give advisory opinions, least of all when they have heard no adversarial argument on the point. And whereas, of course, if a judge makes an order, anybody who disobeys that order is liable to the penalties of contempt, it is no contempt for anybody to disregard a mere expression of opinion by a judge if that opinion is not embodied in some order binding upon the parties or the world at large. The fact is, as it seems to me, that what I am being invited to do is to give an advisory opinion and to offer advice to the media – advice which it is insinuated will carry the more force because it comes from a judge. The difficulty is that although persons, the media included, may be obliged to obey the orders of a judge, if the judge offers advice they are entitled to accept or reject that advice as they wish, just as they are entitled to accept or reject advice from any other quarter. So, were I to express any views on the matter, and all the more so were I to address the media in the way suggested, not merely would I be stepping outside any proper judicial function, I would not, in fact, be achieving anything of utility to the parties.[22]The fact is that the submissions raised by Mr. Mostyn, in particular, on this point, and the judgment I have thus far given, have brought the attention of the media (if they needed it bringing to their attention) the existence of the 1926 Act. It has brought to their attention the view which the parties to this litigation have as to its meaning and effect, and it has brought to their attention what appear to be the only relevant authorities on the point. Further than that, I am not prepared to go. The media must take their own advice and act accordingly. If the media do something which somebody wishes to assert involves a breach of the 1926 Act and if somebody, having obtained the sanction of the Attorney-General pursuant to section 1(3) of the Act, wishes to bring the matter before a court then the matter can be adjudicated. I propose to say nothing more upon the point today.[23]There was debate before me as to the power or, as it was asserted by Mr. Mostyn in particular, the absence of any power on the part of a judge sitting in ancillary relief proceedings to grant injunctive relief of the sort with which we are all familiar in the children jurisdiction. Indeed, at the forefront of his submissions was the submission by Mr. Mostyn that there was no such jurisdiction, with the consequence (so the argument went) that because section 12 of the 1960 Act does not bite, because, with the sole exception of the 1926 Act, there is no other statutory provision which even arguably bites, and because, so it is said, there is no jurisdiction to protect the parties by way of injunction, therefore, the only way of protecting the important Article 8 interests of the parties is by excluding the media altogether.[24]Put in terms of the bald assertion that the court lacks jurisdiction to grant any such injunction, I cannot, with respect to Mr. Mostyn and Mr. Marks, accept the proposition. Time was, before the coming into force in October 2000 of the Human Rights Act 1998, domesticating the European Convention for the Protection of Human Rights and Fundamental Freedoms, and, more particularly, prior to the decision of the House of Lords in October 2004 in In re S(A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, when family lawyers and, indeed, family judges might have been forgiven for understanding that the only relevant jurisdiction was that which arose under the inherent jurisdiction of the court in relation to children. In other words, the only jurisdiction to grant such injunctions was a jurisdiction in relation to children; in relation to which topic there was a vast jurisprudence beginning in modern times with In re X(A Minor) (Wardship: Jurisdiction) [1975] Fam 47 and culminating with the well known decision of the Court of Appeal in In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1.[25]However in In re S Lord Steyn, speaking for a unanimous House of Lords, in effect swept away the previous understanding of the jurisprudential basis for the power to grant such injunctions. He said, at paragraph 23:
“The foundation of the jurisdiction to restrain publicity in a case such as the present is now derived from Convention rights under the ECHR. This is the simple and direct way to approach such cases.”
And at paragraph 32 he specifically rejected the assertion that the jurisdiction is confined to the protection of children, saying: “that will not do. The jurisdiction under the ECHR could equally be invoked by an adult”.[26]The case was, in fact, to do with a decision in relation to a child where a judge of the Family Division, with a view to protecting the welfare and interests of the child, had granted an injunction the effect of which was to prevent the media reporting the identity of a defendant indicted for murder in the Crown Court. But, as it seems to me, Lord Steyn’s analysis is entirely general. And if it be the case, as the House of Lords has now taught us, that the foundation of the jurisdiction to restrain publicity in such cases derives from the Convention, it does not seem to me that any previous distinction between a power in the court to grant such injunctions where children are involved, and the perceived lack of power to grant such injunctions in cases where adults are involved, can have survived the explanation in In re S of the effect of the Human Rights Act. After all, neither Article 6, nor Article 8, nor Article 10 of the Convention, being, of course, the Articles which are engaged in such cases, draws any distinction between adults and children. Adults and children are equally entitled to the protection of the Convention. Moreover there are, as Mr. Mostyn readily accepted when I put the point to him, a number of decisions in recent years in the Family Division where judges have granted such injunctions to protect vulnerable adults without there being any doubt as to their jurisdiction to do so.[27]Accordingly, as it seems to me, and contrary to the submission of Mr. Mostyn, Charles J was entirely correct (if I may say so) in X v X at paragraph 9 when he contemplated that, within the context of ancillary relief proceedings, the court could, in an appropriate case, grant injunctions; including, in an appropriate case he thought, what he called “a blanket injunction preventing any publication” in relation to the particular case.[28]In what circumstances it might be appropriate to grant such an injunction, and whether the present case is such a case, is not a matter upon which I have heard any argument. It is, accordingly, not a matter upon which I propose to express any views whatever. It suffices for present purposes for me to reiterate that(a) I do not accept the proposition that there is lacking in the judges any jurisdiction to grant an injunction in an appropriate ancillary relief case, and(b) in principle at least, albeit the circumstances in which it will be appropriate to exercise the jurisdiction, may, for all one knows, be comparatively limited, there is indeed jurisdiction to grant such an injunction.[29]Having thus cleared the ground, I approach the central question in the present case. Should the media be excluded?[30]I return to rule 10.28. The rule, as both the President’s Practice Direction and the decision of Charles J in X v. X recognise, creates as a starting point, and an assumption, that the media are entitled to be present throughout the hearing of proceedings of the kind which are currently before me. It is for those who seek to exclude the media from such proceedings, either in whole or in part, to satisfy the court in accordance with rule 10.28(4) that such an order should be made. There are, as we have seen, two limbs to that statutory power. The first is rule 10.28(4)(a), being where it is “necessary” to do so, in the interests of any child, for the safety or protection of a party or a witness or person connected with a party or witness, or for the orderly conduct of the proceedings; the other is rule 10.28(4)(b) where “justice will otherwise be impeded or prejudiced.”[31]It is not asserted by either Mr. Mostyn or Mr. Marks that the present case falls within any of the three limbs of Rule 10.28(4)(a). And that, in my judgment, is an entirely appropriate concession. It is not for nothing, as it seems to me, that the rule uses the word “necessary”, that being a word familiar from the Strasbourg jurisprudence and, in my judgment, a word used here with the intention that it should be understood in the sense spelt out in the Strasbourg jurisprudence. Necessity, in the Strasbourg sense, has a meaning lying somewhere between ‘essential’ or ‘indispensable’, on the one hand, and ‘useful’, ‘reasonable’ or ‘desirable’ on the other hand. It implies the existence of what the Strasbourg jurisprudence calls a ‘pressing social need’: see, for a recent statement of the principle, Re P (Placement Orders: Parental Consent) [2008] EWCA Civ 535, [2008] 2 FLR 625, at paragraph 120.[32]There are, of course, children here connected with the proceedings, but there is not, in my judgment, any necessity in their interests to exclude the media altogether, nor is there any suggestion that the safety of any person involved is in danger. Likewise, it is not suggested that the orderly conduct of the proceedings requires the exclusion of the media. The presence of the media, although much more significant in this case than in most other cases, is nonetheless comparatively modest – it pales in comparison with the serried ranks of the media who crowded into my court during the hearing in Webster. All of them are, seemingly, able to be accommodated within the normal facilities of this particular courtroom, nor has there been any disorderly conduct on their part or the part of anybody else.[33]So it is not and could not sensibly be suggested that this case falls within rule 10.28(4)(a). The assertion, however, is that this is a case where, within the meaning of rule 10.28(4)(b), justice will otherwise “be impeded or prejudiced” if the media are not altogether excluded. And as will be appreciated, that led to a focus in the course of submissions upon paragraph 5.4 of the President’s Practice Direction.[34]It was correctly not asserted by either Mr. Mostyn or Mr. Marks that this was a case where information relating to the parties’ finances included price sensitive information or other information of a confidential nature which could affect the share price of a publicly quoted company or anything of that kind. Nor was it asserted that any witness in the case would decline to give evidence in front of media representatives.[35]What was asserted, in particular by Mr. Marks, was that this was a case where it should appear to the court that there is “a significant risk that a witness will not give full or frank evidence in the presence of media representatives”, the foundation for that being the unhappy fact that there are allegations of conduct on both sides, which it may be necessary to explore in evidence in circumstances where there must, says Mr. Marks, be doubt as to whether either the Countess or the Earl would feel able to give full or frank evidence were they doing so in the presence of the media.[36]I have already referred more than once to the judgment of Charles J in X v X. So far as is relevant for immediate purposes, that was a case in which an unsuccessful attempt was made to bring the circumstances within the first limb of paragraph 5.4 of the President’s Practice Direction. Unsurprisingly in the circumstances as Charles J described them, that application failed. Save glancingly (see at paragraph 14), he was not faced, as I am, with the suggestion that the circumstances fall within the second limb of paragraph 5.4.[37]It is correctly common ground between Mr. Mostyn and Mr. Marks that the resolution of the issue as to whether or not, consistently with the Rules and the Practice Direction, the media should be excluded, involves the familiar ‘parallel analysis’ leading to the ‘ultimate balancing test’: see In re S(A Child) (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, and A Local Authority v W L W T and R (by the Children’s Guardian) [2005] EWHC 1564 (Fam), [2006] 1 FLR 1. In accordance with the jurisprudence to be found in the case law starting with In re S, the court has to weigh, evaluate and balance the conflicting interests protected by Articles 6, 8 and 10 of the Convention.[38]The analysis of how that exercise is to be undertaken in the context of children proceedings, is a topic much examined in the authorities: see, for example, my judgment in Re Webster, Norfolk County Council v. Webster [2006] EWHC 2733 (Fam) [2007] 1 FLR 1146 at para.80. So far as I am aware, no similar analysis has yet been carried out in relation to the various competing interests which arise in the context of an ancillary relief claim. But, allowing for the obvious differences between the two kinds of proceedings, and allowing for the obvious fact that some of the interests which will arise in the typical children case will not arise in ancillary relief proceedings, and vice versa, the kind of analysis which, as it seems to me, has to be applied in the context of ancillary relief proceedings is very similar to the kind of analysis which one sees set out in the children cases.[39]In particular, it is not, as it seems to me, simply a question of balancing the Article 8 rights of the parties as against the Article 10 rights of the media.[40]In the present case – and of course there may be other ancillary relief cases where one or other of the parties adopts a very different stance – both parties are at one in seeking to rely upon their rights under Article 8 not as a justification for broadcasting to the world what is going on, but, on the contrary, as a reason for preserving the privacy and confidentiality to which they are entitled under the Convention: cf the analysis in Re Roddy (A Child) (Identification: Restriction on Publication), Torbay Borough Council v News Group Newspapers [2003] EWHC 2927 (Fam), [2004] 2 FLR 949.[41]The fact that litigants in the Family Division, as indeed elsewhere, have important rights to privacy and confidentiality protected by Article 8 is so well recognised, both in the Strasbourg and in domestic jurisprudence, that I need not cite authority for the point. Plainly, on the other hand, the media have their rights under Article 10. Not, in the present case, a right to receive information from the parties (because neither of the parties wishes to give them any information) but a right to receive information by sitting in court and, subject to any other restraints which there may be upon their reporting the proceedings, their right to impart that information to the world at large.[42]But there are also, as it seems to me, important rights protected by Article 6. There is – again there is much Strasbourg and domestic jurisprudence which there is no need for me to recite in detail – a well recognised public interest, an interest of the community as a whole, in promoting the administration of justice, in maintaining the authority of the judiciary and in maintaining the confidence of the public at large in the courts. And that public interest is protected by Article 6, quite apart from Article 10. But that interest typically pulls in two different directions. Viewed from the perspective of the media, and the market which the media are serving, that public interest is to be promoted and public confidence in the courts is to be maintained by justice being administered in public, or at least in a manner which enables its workings to be properly scrutinised, so that (and this is the modern Convention version of the age-old Benthamite principle) the judges and other participants in the process remain visible and amenable to comment and criticism. This is the argument that Article 6 points in the direction of openness, specifically in this context in the direction of the media being permitted to remain in court.[43]On the other hand, and the Article 6 jurisprudence equally recognises this right, there is the vital importance, as viewed from the perspective of the participants in the process, that if the administration of justice is to be promoted, and public confidence in the workings of the family court is to be maintained, then, so it is said, one needs to preserve the privacy of such proceedings, there being, for example, an important public interest in preserving faith with those who have launched upon the proceedings and given evidence in the family court in the belief that the proceedings and the evidence would remain confidential.[44]How then, in the circumstances of this particular case, is the balance to be struck? The fact that both parties join in making the application is not, of course, any reason why the application should succeed. If anything, quite the contrary – see the observation of Sir Christopher Staughton in Ex p P [1998] Court of Appeal (Civil Division) Transcript No 431 of 1998, quoted with approval by Lord Woolf MR in R v Legal Aid Board ex p Kaim Todner [1999] QB 966 at page 977:
“When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.”
[45]In many ways, despite the interest of the public in this particular couple and despite their comparatively high media profile, the proceedings before me are typical of many ancillary relief cases. There is no great point of law or principle involved in this case, other than the satellite point upon which I am currently giving judgment. It may be, but it is hard to imagine that the judgment, when I come to give it at the end of the substantive proceedings, will be of the slightest interest to law reporters. The parties are agreed that this is a case to be resolved in the circumstances on a traditional ‘needs’ basis. Mr. Marks and Mr. Mostyn point to the fact that were this case to involve more anonymous and less well known people the media would, as they assert, have no interest in it at all. They suggest that the reason for the media’s interest is nothing to do with any profound point of principle at stake. It is not to do with the circumstances of the case at all, save for the circumstance that the litigants are well known. The mundane quotidian facts of this particular case are no different, as they say, from many such cases, yet the case will nonetheless be of interest to the media reading and media watching public. Not, they say, because there is any genuine public interest in the matter, but, so it is said, because there is an insatiable appetite in the public for reading about such matters. Not because the public has any interest in such matters as such, but because there is an insatiable public interest in reading about the affairs of the famous, the well known or the celebrity.[46]They impress upon me the words of Blackburne J in His Royal Highness the Prince of Wales v Associated Newspapers Limited [2006] EWHC 522 (Ch), [2008] Ch. 57, at paragraph 118 where he said (and he was far from being the first, and he will no doubt be far from being the last,

judge to make such an observation):

“it is important not to overlook the fact that what may be in the public interest to know and thus for the media to publicise in exercise of their freedom of speech is not to be confused with what is interesting to the public and, therefore, in a newspaper's commercial interest to publish.”
He went on to say:
“This is particularly so in the case of someone like the claimant whose every thought and action is, in some quarters at least, a matter of endless fascination.”
The submission is made that any wish on the part of the media to report this particular case would only be if it was interesting to the public, and therefore commercially lucrative, rather than in the public interest.[47]In short there is, as Mr. Marks put it, no public interest in the outcome of these proceedings. That may be so, but – and this is why I have made reference to Article 6 – there may well be, and on the face of it there plainly is, a public interest, not least following the recent radical change in the law, in the media being able to attend proceedings in court, acting, as it were, as the eyes and ears of the public and as the watchdog of the public. There is, in that sense, an important public interest which transcends the subject matter of the litigation, a public interest identified by Bentham and reiterated constantly down the years by the judges, not least in the great case of Scott v Scott [1913] AC 417.[48]What then are the arguments which, in the present case, are relied upon as justifying the total exclusion of the media in circumstances where, as is frankly accepted, and, indeed, as we have seen, this in large measure underpins the arguments I have heard, this case, apart only from the identity of the litigants, is typical of many such cases in this Division?[49]Can it be said that the media are to be excluded wholly from the generality of ancillary relief cases, whether proceeding in this Division or in other family courts? Surely not. That would be to set at naught the new public policy which underlies the recent change in the rules and would be to set at naught the clear statutory intention that the media should be allowed, as of right, to attend all such proceedings unless proper grounds can be shown for their exclusion within the limited circumstances identified in rule 10.28(4).[50]Is it then to be said that there is a justification for excluding the media from a case – and on one view of the arguments I have heard the present case comes very close to this – merely because the litigants in this case, unlike the litigants in an otherwise very similar case, are people in whom the media have an unusual interest? It seems to me that this is potentially dangerous, very dangerous, territory, because it has the potential to privilege one group of the community – those who attract the attention of the media – over and above another group who do not. Plainly the fact that the media are interested, if only because of the identity or character of the particular litigants rather than because of the nature of the underlying dispute, is a matter which is relevant. But it can hardly be determinative, unless we are to have one law for the celebrity and another law for those who live their lives in tranquillity and anonymity.[51]Mr. Mostyn put towards the forefront of his submissions the fact (and fact it is) that this is what he called a transitional case, that is to say a case where, as I have already mentioned, the petition was issued and the ancillary relief proceedings commenced long before the change in the law. He says that one must have regard to the fact that the driver for the change in the law was, as he suggests, concerns, particularly in the media, about so called ‘secret’ justice in the context of children cases – so the driving force behind the change in the law was not, he suggests, ancillary relief proceedings at all. He submits that the parties here, when they embarked upon these proceedings, had a legitimate, reasonable expectation of privacy and did not envisage that they would be overtaken by this radical change in the law. They would, he says, until very recently, have had every expectation that these proceedings would be carried on, as indeed they would have been before 27 April 2009, in private and without the attention of the media. That fact, he says, distinguishes this, and other transitional cases, from the general run of future ancillary relief cases where there will not of course be, at least in relation to those who issued their petition on or after 27 April 2009, any such expectation of privacy.[52]The fact, however, is that, although it may be that one of the major drivers, or indeed the major driver, behind the recent reform was perception of failings in the system so far as it related to children, the change actually implemented by the Family Proceedings (Amendment) (No. 2) Rules 2009 is quite clearly a change in relation to the rights of the media in relation to all family proceedings. It applies equally to ancillary relief proceedings as to children proceedings or, indeed, to any other type of family proceedings.[53]So far as concerns the argument based upon reasonable expectations, there is, as it happens, a feature in this case which, it seems to me, has to be borne in mind and reduces the extent to which the parties could in fact ever have had a confident expectation that the media would not be present.[54]As is well known, the Governmental process, culminating in the change of the law on 27 April 2009, began with the issue by the then Lord Chancellor, Lord Falconer, of a Green Paper “Confidence and Confidentiality: Improving transparency and privacy in family courts”, Cm 6886, which was published in July 2006 – that is, some two months before the petition was issued in the present case. In that consultation paper, the proposal put forward as reflecting Government policy was (see page 45) to “open up the family courts so that the media, in their role as a proxy for the public, can attend all family courts as a matter of right, subject to the court’s power to exclude if appropriate”, a proposal, as was made clear, that would be applied “in all family proceedings”. As is also well known, Lord Falconer performed what is popularly known as a U-turn when, in June 2007, he published a further Green Paper “Confidence & confidentiality: Openness in family courts – a new approach”, Cm 7131, announcing a radically different policy.[55]However, when his successor as Lord Chancellor, the Rt. Hon. Jack Straw MP, on 16 December 2008, issued the Government White Paper “Family Justice in View”, Cm 7502, he performed a second U-turn and, certainly so far as concerns the point with which I am currently concerned, in effect went back to the proposals announced as long ago as July 2006 by his predecessor. For, as was made clear in the White Paper, and in a statement which the Lord Chancellor made to the House of Commons the same day, the government’s plan was (see page 31) to permit the media access to all family proceedings coupled with a judicial power to exclude in appropriate cases.[56]Mr. Mostyn complains, as some might think with considerable force and justification, that there was no consultation in relation to the implementation of those proposals between their publication to an astonished world on 16 December 2008 and the emergence on 6 April 2009 – the very last day on which they could be published, bearing in mind the 21 day rule for the laying of Statutory Instruments before Parliament – of the Rules which came into force three weeks later on 27 April 2009. That may be so. But, whatever one’s views may be as to the lack of consultation, and the unfortunate fact that the change in the law has not thus far addressed the equally important question of reporting restrictions, I and, more importantly, the parties have to take the law as it is.[57]The simple fact is that the change of the law which came into force on 27 April 2009, was a change which had the effect of introducing into the law what, for present purposes, are in substance the very same as the proposals which had been put forward by the then Lord Chancellor some two months before the petition in this case was issued. In other words, as it seems to me, the parties may have had a hope, and a hope which may well have been encouraged by the seeming succession of vacillations by the Government, that the Ancien regime would have survived at least a little bit longer; but they cannot have been altogether surprised to discover, albeit very late in the day, that the system was in fact to be as had been flagged up some time before.[58]I am sympathetic to those involved in litigation which began before 27 April 2009 at their sense of grievance and injustice that the rules of the game have changed and the goal posts have been moved partway through their litigation. But the fact is that Parliament has seen fit to change the law and, without including any transitional provisions. And no-one has suggested or could sensibly suggest that that itself involves any breach of the Convention. So I have to take the law as it is, namely that the new arrangements apply to pending cases and, indeed, as I pointed out, to cases part-heard in which hearings happened to straddle the implementation date of 27 April 2009.[59]Whatever expectation or assumption the parties may have had in the present case, and I accept that, subject to the qualification I have mentioned, they did have at least some degree of expectation and hope until very recently that these proceedings would be held in private, that fact does not seem to me, either on its own or taken in conjunction with the other circumstances of the case, to suffice to bring the case within any of the relevant provisions of rule 10.28(4). To put it in Conventional terms, nor does either that consideration on its own or that consideration linked in with the other arguments based upon Article 8, suffice to tip the balance in favour of making the sweeping order which is sought, namely an order excluding the media altogether.[60]What then of the other important argument that this is a case which falls within at least one branch of the second limb of paragraph 5.4 in the Practice Direction? That in principle, as it seems to me, is a much more compelling argument if the factual premise which underlies that part of the Practice Direction is made out in the particular case. However, that feature is unlikely in the general run of such cases and certainly, in my judgment, in the present case is insufficient, to justify an order excluding the media from the proceedings altogether. This branch of paragraph 5.4 of the Practice Direction focuses upon the case of a specific witness who, there is credible reason to believe, will either not give evidence at all, or not give full or frank evidence, if the media are present. In other words if the case postulated by the Practice Direction arises it is, as it seems to me, properly a basis for excluding the media from that particular part of the proceedings where the condition is satisfied in relation to a particular witness. But it will not be in the general run of cases and in the present case certainly cannot be – indeed, I have some difficulty in seeing how it could ever realistically be – a reason for excluding the media from the hearing as a whole.[61]If it is to be said that this is a case in which a particular witness may be deterred from giving full and frank evidence because of the presence of the media, that is a matter to be considered further at the point when the problem arises. If a proper case for excluding the media is then demonstrated, the appropriate form of order is, in principle, an order requiring the media to remove themselves while that particular evidence is being given or that particular witness is giving evidence – rather than an order excluding them altogether.[62]At the end of the day, and leaving on one side the fact that this is a transitional case, this is in many ways, as both Mr. Mostyn and Mr. Marks were at pains to imply insofar as there is any such thing, a fairly routine big money case in this Division which involves no particular issues of principle or legal complexity. Is it to be said that, generally speaking, the media are to be excluded from such cases? Of course, every case must be determined on its own particular facts. As always, where the Convention applies, context is everything and, as Lord Steyn was at pains to point out in In re S at paragraph 17, the outcome in every such case will depend upon, and must be the result of, an “intense focus” upon the circumstances of the particular case. However, that said, I cannot believe that it is consistent either with the legislative intent which lay behind the change in the Rules nor consistent with the Rules themselves that the media should, as a matter of generality, be excluded from ancillary relief cases.[63]Truth be told, the only circumstance put forward in the present case for excluding the media from the hearing as a whole is the high public profile of the parties and the fact that they, unlike those who live less public lives, will be exposed, subject to whatever reporting restrictions there may be, to the publication of matters which they, no doubt like all litigants in ancillary relief proceedings, would prefer not to be exposed in public. It may be that, because of their public profile, they will not merely be exposed to the publication of facts and matters which they prefer to keep private, but also be exposed to comment of the kind which they would rather not be exposed to. But is that of itself to be a reason for making an order different from the order which one would make were that factor absent?[64]Of course, every case must depend upon its own particular facts. I am not, of course, suggesting that the fact of the public standing of the litigants in this particular case is an irrelevant consideration. Far from it. After all, one does not have to be unduly cynical to accept, fairly readily, the factual proposition which lies behind the argument that the media are present today only because of the identity of the parties involved. One could hardly move in the Royal Courts of Justice on 27 April 2009 without seeing some representative of the media, yet the fact is that the media, with the exception of only a few cases, have been conspicuously absent from family courts ever since. And certainly the fact is that, although I have been involved in ancillary relief cases since 27 April 2009, this is the first occasion that the media have appeared in my court in such a case – or, indeed, in any case. So I do not dispute, and am content to proceed on the basis of, the factual assumptions as to the reason for the media’s interest which underlie the submissions from Mr. Marks and Mr. Mostyn.[65]But that is not, in my judgment, of itself sufficient to tip the balance. It is not, as the argument has so painfully demonstrated, sufficient to bring the case within any of the provisions of rule 10.28(4), save perhaps to a limited extent within the provisions of rule 10.28(4)(b) and even then only to the extent of perhaps justifying the exclusion of the media for part of the proceedings.[66]Accordingly, for all those reasons, as I announced this morning at the end of submissions, I refuse the only application which is currently before me – that is, the application that the media be excluded for the remainder of this hearing.[67]To this judgment as I delivered it on 23 June 2009 I need to add a footnote and a postscript.[68]The media, although present, were not represented. I did not seek their representations in relation to the application, for I had decided to reject it without needing to call upon them. Rule 10.28(5) entitles any media representative who is present to make representations before the court exercises its power under rule 10.28(4), and had I been minded to do so I would, of course, have invited representations from those present. But rule 10.28(5) does not require a court to go through the redundant exercise of inviting media representations in respect of an application which is going to be rejected, as was this one.[69]By way of postscript I should record that, following delivery of this judgment, Mr. Marks indicated that he was going to apply the following day for a contra mundum injunction to restrain, in part, the reporting of the proceedings. I adjourned to enable notice of that application to be served on the media so as to meet the requirements of section 12(2) of the Human Rights Act. (I understand that, in the event, so such notice was ever given.) When the hearing resumed the following morning (24 June 2009) Mr. Marks and Mr. Mostyn joined in applying for a short adjournment. I granted the adjournment. Later, in the afternoon, the parties appeared before me. They invited me to approve a consent order, which I did. The ancillary relief proceedings have thus come to an end. In the event, therefore, I never had to consider any application for an injunction to restrain reporting of the proceedings. ___________________

Cited in 8 later judgments