A v A [2012] EWHC 4226 (Fam)

HIGH COURT OF JUSTICEFAMILY DIVISIONDate 17/09/2012
Before
DISTRICT JUDGE BRADLEY
Between
APetitionerARespondent
Robert Peel QC (instructed by Farani Taylor) for HusbandChristian Kenny (instructed by Farani Taylor) for Husband's parentsAdam Wolanski for Times Newspapers Limited
JUDGMENT ON THE ISSUE OF REPORTING RESTRICTIONS

DISTRICT JUDGE BRADLEY:

[1]On 16th January 2012 the final hearing of an application for financial remedy commenced before me. It was listed for 5 days. The parties to the proceedings were the Husband, Wife, and the Husband's parents. At Court and before the hearing commenced the parties managed to reach an agreement as to the Intervenors' (parents') claims as a result of which they were discharged as parties.[2]At the outset of the hearing, accredited media representatives attended. Mr Robert Peel Q.C. on behalf of the Husband sought to have the media excluded from the hearing. I rejected his application but imposed a temporary reporting restriction order, which remains in place. The Wife, through her Counsel Mr Morgan Sirikanda, expressed herself as neutral on the issue of the media attendance.[3]The hearing continued until 20th January 2012 and, after discussion concerning the diaries of both Counsel and Judge, the date for giving judgment was finally fixed for 15th March 2012. On that day, some 10 minutes before judgment was due to be given, the Court was informed that the parties had settled their dispute. A proposed consent order was submitted and approved by the Court and the order was made. Although brief oral submissions had been made by Counsel and also by Mr Brian Farmer of the Press Association at the conclusion of the hearing on 20th January 2012, the new situation presented by the settlement of the dispute, which avoided the necessity for the delivery of a judgment, led to a request by Mr Peel QC for a further adjournment to argue fully the issue of reporting of the proceedings by the media. Clearly both the litigants and the media were entitled to an opportunity to argue the matter fully and the issue was set down for hearing on 19th April 2012.[4]On 19th April 2012, Mr Peel QC appeared again on behalf of the Husband. The Wife was represented by a solicitor Ms Moussaoui. The Husband's parents, who had given evidence during the hearing but were no longer parties, were represented by Mr Christian Kenny of Counsel. Times Newspapers Limited (`TNL") were represented by Mr Adam Wolanski of Counsel, TNL sought to introduce two statements: one from a general reporter at the Times, Fay Schlesinger, who had attended almost all of the original hearing, the other from Mr Richard Beeston, the Foreign Editor of The Times. I accepted those statements. The Wife remained neutral in her position. The parents opposed any reporting of their evidence in the proceedings and adopted the arguments put on behalf of the Husband. The Husband's father was particularly concerned about the embarrassment that disclosure of details about him and his financial affairs and those of his son would cause to him and to others and the likely impact on his own career and possible risk to his life.[5]As before, the major dispute was between the Husband and the Media. The context is as follows, [The court considered the evidence relevant to the applications].[6]The context I have just described goes some way to identifying both why the Media and in particular TNL are keen to report the evidence given in the financial remedy hearing and why the Husband and his father are keen to avoid any such reporting.[7]The starting point for the determination of the issue is the importance of the principle of open justice. Nothing should be done to discourage fair and accurate reports of court proceedings. This common law principle was emphasised in Clibbery v Allan [2002] 1 FLR 565 at paragraph [16] by the then President, Dame Elizabeth Butler-Sloss. 'It applies,' she said 'to all courts and in principle the family courts are not excluded from it.'[8]The principle of open

justice is reinforced by Article 6 of the European Convention on Human Rights:

"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 interest 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"
Family Law.[10]In Clibbery v Allen (supra) Dame Butler-Sloss at [52] recorded that The Administration of Justice Act 1960 s12 sets out the circumstances in which it shall be a contempt of court to publish information given in private proceedings. Section 12 states: (1). The publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court except in the following cases:-(a) where the proceedings – (i) relate to the exercise of the inherent jurisdiction of the High Court with regard to minors; (ii) are brought under the Children Act 1989; or (iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published. Dame Butler-Sloss went on [53] to note: 11. "There are situations outside the exceptions in s.12 which have long been recognised as requiring confidentiality. They are based on the potential prejudice to the proper administration of justice. The best known example is the implied undertaking in the compulsory disclosure of documents in proceedings." Dame Butler-Sloss continued: 12. "[66] The approach of the courts to applications in family proceedings is to some extent inquisitorial, even in non-children cases. The court is enjoined to have regard to all the circumstances in ancillary relief applications and in applications under s36 of the Family Law Act 1996. In ancillary relief cases, the requirement for full and frank disclosure and that the parties to a claim for adjustment of their financial position after divorce are obliged to provide information places a considerable degree of compulsion upon both parties". She referred to a number of authorities and continued: 13. "[71] In each of the above cases the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking... Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking before, during and after the proceedings are completed. 14. [72] The implied undertaking extends... to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction."

Dame Butler-Sloss went on [53] to note:

[11]Thorpe LJ took the opportunity in the same case to advance a series of propositions, he being of the view that the present practice as to the reporting of family proceedings could not be justified in every respect by reference to statute (in particular The Judicial Proceedings (Regulation of Reports) Act 1926 as amended and the Administration of Justice Act 1960). Firstly he drew a distinction between the relationships between the parties and the Court in family and in civil proceedings [para 99]. The duty of full and frank disclosure is a major difference and that duty persists whether it is by Affidavit of facts, by Affidavit of documents or by evidence on oath [para 100].

Dame Butler-Sloss continued:

[12]Thorpe LI then drew attention [101] to the words of s25 of the MCA 1973 (1) "It shall be the duty of the court in deciding whether to exercise its powers... and, if so, in what manner, to have regard to all the circumstances of the case..." It is clear that s12 of the Administration of Justice Act 1960, which prohibits the publication of information relating to the maintenance or upbringing of a minor has no bearing on the case with which this Court is concerned, the parties having had no children.

She referred to a number of authorities and continued:

[13]As to The Judicial Proceedings (Regulation of Reports) Act 1926 there is a restriction in respect of proceedings concerning marriage on the particulars that can be disclosed. There is still no firm, binding decision as to whether the Act applies to financial remedy proceedings. However Mr Peel made clear in his submissions on behalf of Husband that he does not rely upon the provisions of the 1926 Act. As I understand his submissions he resists disclosure to the public of even those details permitted by the Act.[14]Mr Wolanski, for TNL, took me through a file of authorities in considerable detail. They included: The Queen on the application of Guardian News Media Ltd v The City of Westminster Magistrates' Court and the Government of the U.S.A. and Article 19. C.A. Civil Division [2012] EWCA Civ 420.[15]The Guardian News & Media Ltd successfully sought disclosure of documents referred to in extradition proceedings, conducted in open court, which had been placed before the District Judge. Toulson L.J. stated:
"(69) The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied. (70) Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state... (76) The application is for access to documents which were placed before the District Judge and referred to in the course of the extradition hearings. The practice of introducing documents for the judge's consideration in that way, without reading them fully in open court, has become commonplace in civil and, to a lesser extent, in criminal proceedings. The Guardian has a serious journalistic purpose in seeking access to the documents. It wants to be able to refer to them for the purpose of stimulating informed debate about the way in which the justice system deals with suspected international corruption and the system for extradition of British subjects to the USA. (77) Unless some strong contrary argument can be made out, the courts should assist rather than impede such an exercise."
[16]Having considered the arguments Toulson L.J, basing his decision on the common law principle of open justice, allowed the appeal and directed that the Guardian should be allowed access to the documents it was seeking. Hooper L.J. and the Master of the Rolls agreed.[17]Mr Wolanski referred me to the case of Scott v Scott [1913] A.C. 417 in the House of Lords. It concerned a nullity case, which would normally have been held in public. In fact the hearing was conducted in camera and an issue as to contempt arose on later publication of details of the proceedings. Viscount Haldane L.C. stated at p435:
"...the power of an ordinary Court of Justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge."
Mr Wolanski took me in some detail through the report of that case, dwelling particularly on the issue as to whether and in what circumstances public proceedings could be heard in camera. While interesting the report did little to assist me as to how the court should approach an issue as to whether proceedings which were conducted in private, not by the whim of the District Judge but in accordance with the FPR 2010, r27.10, should be generally reported.[18]Mr Wolanski referred me to Chan — U — Seek v Alvis Vehicles Ltd (Guardian Newspapers Ltd intervening) [2004] EWHC 3092 (Ch), a case in which Guardian Newspapers partially successfully sought disclosure of documents on the court file in a case that settled part way through a final hearing. Park J said at 2975 B:
"Imagining myself in the position of Alvis I believe I would be unhappy about this application. However, the proceedings between Alvis and Mr Chan were not a private arbitration. They were proceedings in open court, and unwelcome publicity for a defendant, including a successful defendant, is not uncommonly a consequence of such proceedings."
Yet again the distinction is drawn between hearings in public and in private.[19]The fact that proceedings are held in private does not of itself mean that they cannot be reported, however the Court of Appeal, in Clibbery v Allan has provided clear support for the implied undertaking as to confidentiality that is created when disclosure by a party is given under compulsion. That confidentiality is preserved until the information is put into the public domain. It appears to be suggested, in particular by Thorpe II, but also by Dame Butler-Sloss, that because of the wide ranging nature of the areas of full and frank disclosure required by statute in ancillary relief, now financial remedy, proceedings, virtually every item of information given by a party can be regarded as subject to the implied undertaking as to confidentiality because, under s25 of the Matrimonial Cases Act 1973, the parties are required to give full information to enable the Court to consider each sub - subsection of s25(2).[20]The confidentiality point was considered also in Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427, Stanley Burnton LI said "[76) Parties to a matrimonial dispute who bring before the court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the court to produce the information and documents and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment."[21]In the present case there is no judgment to report, no findings by the Court. The ability of the Media to attend the hearing stems from the principle of open justice, which promotes the rule of law and public confidence in the legal system. Their presence alone does not mean that confidential information is brought into the public domain.[22]It is clear from the December 2008 Response to Consultation CP(R) 10/07 "Family Justice in View" that the government was particularly concerned with the protection from publicity of children and their families and with the need to raise public understanding of how decisions are made and awareness of the daily duties of those working within the family courts (Foreword to the Response Document). While the government was aware that the Media would be attracted by "human interest" stories, the purpose of opening up the family courts was to enable the public to have a better understanding of how they worked, with a view to providing reassurance to the public.[23]The common law principles to which I have referred are now reinforced as a result of the coming into force of the Human Rights Act 1998 by the European Convention on Human Rights and Fundamental Freedoms and it is by balancing, in this case, the competing rights contained in Articles 6, 8 and 10 that the Court is able to determine the issues as to whether any restriction should be placed upon the reporting of the proceedings. Article 6 states:28. "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 interest of morals, public order or national security in ademocratic 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."29. "As Baron J carefully recorded, the importance of open justice must never be diminished. The practice of privacy has grown up in the Family Division to protect the welfare of children, to deny an inspection that is only prurient and to respect the fact that the financial affairs of any family are essentially private and not a matter of legitimate public interest.30. The practice in this jurisdiction is compliant with Art 6 rights as is established by the decision of the Strasbourg Court in B v United Kingdom; P v United Kingdom (Application Nos 36337/97 and 35974197) (2002) 34 EHRR 19, [2001] 2 FLR 261 which sanctions not only the private hearing but also the private judgment." Article 8 states: "1. Everyone has the right to respect for his private and family life, his home and his correspondence.[2]There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others." Article 10 states:
"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent states from requiring the licensing of broadcasting, television or cinema enterprises. 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, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
[24]There is in this case a direct conflict between the right of the Media to freedom of expression and the right of those involved in the matrimonial proceedings to respect for their private lives. The statements submitted on behalf of TNL by Ms Schlesinger and Mr Beeston express clearly and forcefully why the Media should be entitled to report the proceedings freely, although both the Wife and the Husband's father drew attention to what they described as significant inaccuracies in Mr Beeston's statement.[25]Mr Wolanski has argued determinedly that there is nothing in this case to justify an interference with TNL's Article 10 right to report the proceedings, that any impediment to full reporting of this case would constitute an unjustifiable derogation from the open justice principle, particularly given "the serious public interest in the issues raised and the desirability of enhancing public understanding of the family justice system." (Mr Wolanski's words)[26]I have considered carefully the authorities to which I have been referred, I have read the useful paper co-written by Mr Wolanski, "The Family Courts: Media Access and Reporting, July 2011", which was commended by Sir Nicholas Wall, President of the Family Division and by Mr Bob Satchwell, Executive Director of the Society of Editors. I have been referred to the Government paper "Family Justice in View" December 2008 which clarifies the aim and purpose of the opening up of the family courts.[27]I am in no doubt that in respect of the evidence as to what Mr Beeston describes as "cosy financial arrangements" all of it was given under compulsion. It was clear that the nature of the arrangement and the identities of those concerned were disclosed only with greatest reluctance in the witness box by the Husband and by his father. They were both clearly anxious about the possible ramifications of the disclosure and it was only at the court's insistence that, eventually, a reasonably full explanation was given. There was clearly no desire on the Husband's part, nor on that of his father, to bring to public attention the personal, private arrangements of an unconnected individual. Full and frank disclosure of Husband's financial arrangements was required, demanded, and eventually to some extent given.

Article 6 states:

[28]I cannot envisage how the reporting of this aspect of the proceedings would "enhance public understanding of the family justice system." 1 cannot ignore the fact that such reporting would interfere not just with the Article 8 rights of the parties to the proceedings but of individuals who are not parties to nor witnesses in those proceedings. I find in considering this aspect that the balance between the right of the Media to freedom of expression and the right of the Husband (and others) to respect for private and family life, weighed together with the open justice principle enshrined in Article 6 and the implied undertaking as to confidentiality falls firmly in favour of privacy being maintained.[29]The other aspect in which the Media have expressed interest is the business enterprise in which the Husband is involved. On the one hand the Husband again was reluctant to give clear evidence as to the business or his involvement in it. However he had assured District Judge Peter Greene at Financial Dispute Resolution that he would call two witnesses at the final hearing to give evidence about this enterprise. One witness refused to attend, apparently because of the Media attendance; the other did attend and he gave evidence.[30]The evidence of the Husband was obviously given under compulsion. The one witness attended voluntarily, it seemed, and gave evidence as to the nature of and arrangements in the business. There is an issue as to whether the evidence of the witness formed part of the Husband's full and frank disclosure to the court and is therefore protected by the implied undertaking as to confidentiality. If it is so protected then in my judgment the balance of the competing ECHR Articles falls again in favour of continued privacy. Otherwise the balance of competing rights is more equal and may justify reporting on the basis of the principle of open justice.[31]The Husband argues that the business is sensitive and that publicity would be damaging. Yet I recall among the documents what appears to be a press release about the business. There has been entertainment of investors or potential investors and fundraising is ongoing, though difficult in the current climate.[32]On balance I am satisfied that all the evidence and information given to the court in respect of the business was protected by the implied undertaking as to confidentiality. It was information given in proceedings held in private, in accordance with the FPR 2010, which are compliant with Article 6 of the ECHR.[33]It is entirely understandable that the Media are interested in this case and having heard the evidence are very keen to be able to report what they have learned. However the matters in which the Media appear to be particularly interested relate mainly to individuals who are not in any way involved in these proceedings except to the extent that the Husband has been compelled to provide confidential information about them to the Court in order to satisfy the requirement for full and frank disclosure of all matters relevant to the Court's decision in the financial remedy proceedings. He has not given the information in open court, but at a hearing held in private, and so held in compliance with Article 6 of the ECHR.[34]Mr Wolanski for TNL criticised the Husband and his father for failing to comply with their duty to provide full information as to the extent to which disclosure of the proceedings should be restricted, as to their evidence in support of allegations of danger and embarrassment arising from such disclosure and — at a late stage of the hearing — for failing to comply with the President's Practice Direction 2005 and its accompanying note by applying on notice to the High Court. As Mr Peel QC subsequently pointed out succinctly, the Direction and the Note apply to proceedings involving children and patients (or adults under a disability). There is as I find no procedural point to be taken.[35]There being as yet no determination of which I am aware that the Judicial Proceedings (Regulation of Reports) Act 1926 sl applies to financial remedy proceedings I deal with the Husband's application on the basis of Articles 6, 8 and 10 of the ECHR, guided particularly by the Court of Appeal in the cases to which I have been referred.[36]I prohibit disclosure of any information in respect of these matrimonial proceedings other than the following:-(1) Those matters permitted in respect of the divorce suit pursuant to s1 of the Judicial Proceedings (Regulation of Reports) Act 1926, and in respect of the divorce suit only.(2) The fact and date of the financial remedy application and hearing.(3) The fact and date of the settlement between the parties, but not the detail of that settlement.