Have We Been Getting the Law Wrong for 75 Years?

Have We Been Getting the Law Wrong for 75 Years?

PRIVACY, SECRECY AND THE FINANCIAL REMEDIES COURT
The Go-Between by L.P. Hartley starts with one of the most celebrated opening lines in literature:
“The past is a foreign country; they do things differently there”.
Historically, the same could be said of the Family Division, where a husband or wife could obtain a Mareva injunction, or pierce the corporate veil, in circumstances which would surprise commercial litigants. “The matrimonial field calls for a different approach”, held Lincoln J in Shipman [1991] 1 FLR 250, “To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions”. Family law was effectively a foreign country (‘a desert island’, even an ‘Alsatia’); the judges did things differently there.
Over the past fifteen years, the concept of family law exceptionalism – or, to quote Mr Justice Mostyn, ‘the cult of the silo’ – has been in steady retreat. Sir James Munby led the charge in a series of judgments that reminded practitioners that:
‘…even in the Family Division, a spouse who seeks to extend her claim for ancillary relief to assets which appear to be in the hands of someone other than her husband must identify, and by reference to established principle, some proper basis for doing so… the court can[not] simply ride roughshod over established principle… the relevant legal principles which have to be applied are precisely the same in the [Family] Division as in the other two Divisions. There is not one law of ‘sham’ in the Chancery Division and another law of sham in the Family Division… just as there is but one set of principles, again equally applicable in all three Divisions, determining whether or not it is appropriate to “pierce the corporate veil”.’ A v A [2007] EWHC 99 (Fam) at [19, 21]
“…… the illusion that there is some special inspiration of common sense infusing the Family judges and which is lacking in our brethren in the Chancery Division – an illusion no doubt fostered by our inveterate practice of sitting in private – seems to be as prevalent today as ever. It cannot be stressed too much that there is simply no basis for this illusion… The Family Division applies precisely the same principles, and in precisely the same way, as the Chancery Division, or for that matter the Queen’s Bench Division.” ( Whig v Whig [2007] EWHC 1856 (Fam) [58, 60])
“…The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere.” ( Richardson v Richardson [2011] EWCA Civ 79 at [53]).
That conclusion, that legal principle applies across the board, was reached by Sir James Munby, Lord Sumption JSC and Mr Justice Mostyn in cases involving: sham ( A v A (above)), third party interests ( TL v ML [2005] EWHC 2860 (Fam) ), agency ( Richardson (above)), piercing the corporate veil ( Prest v Petrodel [2013] UKSC 34 ), freezing orders ( UL v BK [2013] EWHC 1735 ), the issue of a witness summons ( Kerman v Akhmedova [2018] EWCA Civ 307 ) etc. To that list one can add Court of Appeal decisions that disapproved family exceptions in relation the human rights of a judgment debtor (Mubarak v Mubarak [2001] 1 FLR 698) and self-help in disclosure ( Imerman v Tchenguiz [2010] EWCA Civ 908 ).
That is not to say that the process of reunification, or reconciliation of the desert island with the mainland, is, or could ever be perfect. There remain fundamental differences between the family court’s ‘quasi-inquisitorial’ function, particularly where a child’s welfare is at stake, and how civil claims are determined. Anyone who has dealt with a combined Schedule 1 and TLATA case will know just how different it is to case manage, or meld, family and civil claims together, down to the conflicting rules about bundles and position statements.
Transparency
One notable hold out in the retreat of family law exceptionalism has been the tradition of secrecy in the family court. As President of the Family Division, Sir James Munby took steps to promote greater transparency, encouraging the publication of more judgments ( Practice Guidance of 16 January 2014 ) and extending the existing right of the press to attend most family hearings to legal bloggers (now PD27B ). However, in written submissions to Sir Andrew McFarlane’s Transparency Review, dated 6 May 2011 , Sir James acknowledged that those attempts to open up the family court had actually achieved very little: “…the practical impact…has been minimal”, in large part due to (i) the “chilling effect” of Section 12 of the Administration of Justice Act 1960 , (ii) that the right of accredited members of the press and legal bloggers to attend court had not been accompanied by a relaxation of the rules about what could be published, or which documents could be accessed. The law in relation to press access to documents in the family court remained inordinately complex and unpredictable. The position had become further confused by a difference of approach to the court’s discretion to sit in open court, with one Family Division Judge (Mr Justice Holman) generally sitting in open court, while his colleagues generally sat in private.
On 28 October 2021, Sir Andrew McFarlane published ‘ Confidence and Confidentiality ’, which received the baton from Sir James Munby, and advanced a series of ambitious plans to finally open up the family court, including a proposed reform of the law and relaxation of s.12 to allow journalists to access court documents and publish what takes place in the family court, with the encouragement for the publication of 10% of all family court judgements.
Those plans have been put out to consultation and the Farquhar Committee has been given the task of preparing a report on issues of transparency in the Financial Remedies Court. That report (Farquhar III: the Final Frontier [1] ) is still awaited.
Five decisions of Mostyn J on Privacy and Secrecy (November 2021 – June 2022)
The reason for this blog is to reflect on five recent judgments of Mr Justice Mostyn which, taken as a whole, involve a radical review of the practices of the family court, and the conclusion that we as family lawyers have been misapplying the law, in relation to the secrecy of financial remedy proceedings, since the Second World War.
A key theme in these authorities is the distinction between privacy (e.g., a court sitting in in camera or in chambers) and the proceedings being shrouded in secrecy. The decisions are as follows:
BT v CU (1 November 2021)
The case started with a question: “was COVID capable of being a Barder event?” and concluded in a wide-ranging judgment that critically examined the law in relation to the court’s power to review executory orders, the distinction between lump sum orders by instalment and a series of lump sums and, finally, the practice of anonymising judgments.
In BT v CU, Mostyn J concluded that moves towards transparency had called into question the family court’s inveterate practice of anonymising first instance financial remedy judgment (cf. Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79]), whereby the convention of naming the parties only on appeal is now “impossible to defend”. While the court anonymised the parties’ names in BT v CU (in part because both parties had a reasonable expectation that they would not be named), Mostyn J signalled that “…my default position from now on will be to publish financial remedy judgments in full  without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations”
A v M (9 November 2021)
In A v M, Mostyn J again anonymised his judgment but repeated his warning as to his default position in future. The learned judge turned his attention to the historical development of the law in relation to anonymisation, and concluded
“[105]… I do not believe that there is any such right [to anonymity]. My personal research tells me that before the 1939 – 1945 War, and indeed until much more recently, there was no anonymity in the Probate Divorce and Admiralty Division (‘PDA’), children and nullity cases apart, and  even then only sometimes…Even in nullity cases a general rule that they should be heard in camera was unlawful: Scott v Scott  [1913] AC 417 , HL. That case, far from being a paean to PDA [Probate Divorce and Admiralty Division] exceptionality, is, in truth, precisely the contrary. It is a clear statement (to adopt modern metaphors) that the PDA was neither Alsatia nor a desert island: see Earl Loreburn at 447, where he succinctly stated: “… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”
[106] … So far as I can tell, the practice of anonymising judgments given by High Court judges is explicable only by reference to the hearing having been in chambers and behind closed doors. But that of itself would not explain the adoption of the practice as a chambers judgment is not secret and is publishable whether or not anonymised: see Clibbery v Allan and Another [2001] 2 FLR 819 at [24] – [33], [74], [117] – [118] and [150]. I have not been able to discover any statement of practice made at any time before Thorpe LJ’s judgment in Lykiardopulo v Lykiardopulo  [2010] EWCA Civ 1315 ,  [2011] 1 FLR 1427  (at [45] and [79]) explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all ancillary relief judgments given by High Court judges. That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island.
Aylward-Davies v Chesterman [2022] EWFC 4 (4 February 2022)
The case involved two litigants in person and an application for a declaration of parentage. The judgment is noteworthy, (i) as the first case in which Mostyn J followed his default position and named the parties, and (ii) because the learned judge cast the net beyond the question of anonymisation to the bigger question of whether the press could report financial remedy proceedings. Mostyn J concluded as follows:
[27] Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings. There are no minor children affected even peripherally by the application. It is impossible to see on what basis a reporting restriction order could have been made (italics added).
That view runs contrary to the Court of Appeal’s conclusions in Clibbery v Allen [2002] EWCA Civ 45 , per Thorpe LJ at [72] which justified the confidentiality of financial remedy proceedings (to the extent that they were not protected by s.12 of the 1960 Act) by reference to the implied undertaking:
“…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. In order to achieve compliance with disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. 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. 
Xanthopoulos v Rakshina [2022] EWFC 30 (12 April 2022)
The second half of Mostyn J’s judgment in Xanthopoulous, from paragraph 74 to 139, contains a magisterial survey of the development of law in relation to anonymity, commencing with the Matrimonial Causes Act 1857, placing heavy emphasis upon the dissenting judgment of Fletcher Moulton LJ in the Court of Appeal in Scott v Scott [1912] P24 , which 110 years after it was handed down, now seems remarkably prescient (if still somewhat archaic in its language): “I cannot forbear adding that in my opinion nothing would be more detrimental to the administration of justice in any country than to entrust the judges with the power of covering the proceedings before them with the mantle of inviolable secrecy.”. Mostyn J proceeds to review the development of the law, including Clibbery v Allen, applying great significance to the 2009 reforms that first gave members of the press the right to attend most family hearings (originally FPR 1991 r. 10.28, now FPR 27.11 ).
Mostyn J’s conclusion is radical:
“[113] … it is now clear to me that the reasoning that led to the imposition of a mantle of secrecy in all ancillary relief cases stood on a very shaky foundation. The matter was put beyond doubt seven years later by a rule change… [permitting journalists to be present]
[115] … In my judgment, the privacy of the proceedings, which is the key factor relied on in Clibbery v Allan, is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court for the purposes of para 106 of Thorpe LJ’s judgment. In my opinion, in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings, is fully entitled to publish that information

In conclusion, the court concluded (i) there is no proper basis for the standard rubric that appears on court judgments, (ii) that the Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings, and (iii) with regards the issue of anonymisation
[138] …The correct question is not: “Why is it in the public interest that the parties should be named?” but rather: “Why is it in the public interest that the parties should be anonymous?”
If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.
Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 (13 June 2022)
The last of this pentalogy of judgments is Gallagher in which the court identifies a checklist of the following eight principles (at [5]):
i) From the very start of the era of judicial divorce, proceedings had to be conducted either in open court or in chambers “as if sitting in open court”. There was not the slightest hint that matrimonial proceedings would be secret save in nullity cases alleging incapacity or where the ends of justice might be defeated. The decision of the House of Lords in Scott v Scott  [1913] AC 417  definitively established that the Divorce Court was governed by the same principles in respect of publicity as other courts.
ii) By FPR 27.10 and 27.11, financial remedy proceedings are heard “in private”. The correct interpretation of these rules, in the light of Scott v Scott, is that they do no more than to provide for partial privacy at the hearing. They prevent most members of the general public from physically watching the case. Those rules do not impose secrecy as to the facts of the case.
iii) There is nothing in the various iterations of the Divorce Rules, Matrimonial Causes Rules, Family Procedure Rules or RSC Order 32 r. 11 supporting a view that proceedings heard in the Judge’s or Registrar’s chambers were secret. A chambers’ judgment is not secret and is publishable. Furthermore, the change of language in the FPR 2010 from “in chambers” to “in private” did not presage that ancillary relief proceedings should become more secret.
iv) By FPR 27.11, journalists and bloggers can attend a financial remedy hearing. If the case does not relate wholly or mainly to child maintenance, and in the absence of a valid reporting restriction or anonymity order, they can report anything they see or hear at the hearing. That some of the material under discussion would have been disclosed compulsorily does not constrain their right to report the hearing. The power under FPR 27.11(3)(b) to exclude a journalist or blogger to prevent justice being impeded or prejudiced confirms the unrestricted reportability of the hearing.
v) In the absence of a valid reporting restriction order the parties can talk to whomsoever they like about a financial remedy hearing, including giving an interview to the press. But they are bound by the implied undertaking not to make ulterior use of documents compulsorily disclosed by their opponents. This means that they cannot show such documents to a journalist unless that journalist was covering the case.
vi) The standard rubric on financial remedy judgments providing for anonymity cannot prevent full reporting of the proceedings or the judgment. This is because it is not a reporting restriction injunction, not merely because none of the procedures for making such an order have been complied with, but because it manifestly is not an injunction. It is not an anonymity order under CPR 39.2(4), not merely because no process for making such an order was followed, but more fundamentally because it is not such an order. Such an anonymity order can only be made exceptionally. The general rule is that the names of the parties to an action are included in orders and judgments of the court. There is no general exception for cases where private matters are in issue. An order for anonymity (or any other order restraining the publication of the normally reportable details of a case) is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large and, indeed of the parties.
vii) The court can only prevent reporting of a financial remedy hearing or judgment, or order that the identity of the parties be obscured by anonymisation, by making a specific order to that effect following an intensely focussed fact-specific Re S exercise of balancing the Art 6, 8 and 10 rights.
viii) The Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings.
The judgment is noteworthy for the following conclusion:
(1) The court does not share the preference of Mr Justice Holman to sit in open court
“[10] … I do not agree that it is necessary to hear all cases in open court in order to achieve full transparency. The hybrid arrangement ordained by Parliament when it endorsed FPR 27.10 and 27.11 achieves true transparency in two ways. First, the press and authorised bloggers act as the eyes and ears of the public in exactly the same way as they would if the case were heard in open court. Second, as explained above, there is no prohibition, in the absence of a specific individual order, on either party telling whosoever they please what has happened in court.
(2) A derogation from the rule of open justice can take two forms: a reporting restriction order or an anonymity order requiring the use of pseudonyms in any report of the proceedings:
“[25] … a derogation may be allowed only where an intensely focussed balancing exercise of the various rights protected by Articles 6, 8 and 10 leads to the conclusion that the privacy right should overreach the ancient principle. But it must be clearly understood that such a result will be exceptional and will require “strict justification”. This is clear from the statement of Dame Victoria Sharp PQBD in  Griffiths v Tickle & Ors  [2021] EWCA Civ 1882, at [35]:
” The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification.”
[28] “… a decision in a financial remedy case leading to such an interference with a party’s rights cannot be done casually or automatically by rubric. It can only happen exceptionally as “a result of a  Re S [2004] UKHL 47 balancing exercise.
(3) The distinction is again drawn between privacy and secrecy. The rule that the family court normally sits “in private” ( FPR 27.10 ) “…does no more than to prescribe a mode of trial… it has nothing to do with secrecy as to the facts of the case” (at [33]);
(4) Where a judgment contains sensitive commercial information, that can be placed in a confidential annex but the parties should ordinarily still be named
[36] … I agree with Mr Farmer that if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but only to the extent that they are strictly necessary. But the redactions should not ever obscure the way the court has decided the case.
(5) The court rejected the submissions that (i) greater transparency might allow some litigants to effectively blackmail the other party (at [38]), (ii) that the application of open justice might cause distress to the parties (at [42]), or (iii) that the reporting of a judgment will indirectly name children: (“[45]…every sensational story about adults is likely to cause upset to the children of those adults. The story does not need to be about a court case for the children of the protagonists to be impacted.”
In conclusion, the court ruled against anonymisation and permitted the press to read the parties’ position statements:
[72] … The resistance to letting sunlight into the Family Court seems to be an almost ineradicable adherence to what I would describe as desert island syndrome, where the rules about open justice operating in the rest of the legal universe just do not apply because “we have always done it this way”. In my judgment the mantra “we have always done it this way” cannot act to create a mantle of inviolable secrecy over financial remedy proceedings which the law, as properly understood, does not otherwise recognise. I do acknowledge, however, that the tenacity of desert island syndrome is astonishing. 
So, where does this leave us now?
Firstly, Mr Justice Mostyn’s conclusions, powerfully expressed as they are, have not found obvious favour with other High Court judges, who have preferred to adopt a ‘wait and see’ approach. Most financial remedy judgments – i.e. heard by judges other than Mostyn J – continue to be anonymised (an exception being Cohen J’s decision in Treharne v Lamb [2022] EWFC 27 ).
Secondly, the opposing view has been articulated by Mr Justice Moor who commented in IR v OR [2022] EWFC 20 ,
[29] I believe this [the threat of publicity] refers to proposed changes to the rules on anonymity in financial remedy proceedings but they are not in place yet. I am clear that, until I am told I have to permit publication, litigants are entitled to their privacy in the absence of special circumstances, such as where they having already courted publicity for the proceedings which is not the case here. 
Thirdly, the profession awaits the conclusion of the Farquhar Report III, and in due course, the recommendations of the Rules Committee in terms of giving effect to Sir Andrew McFarlane’s proposals to open up the family court to greater scrutiny.
Ultimately, the above five judgments of Mr Justice Mostyn, all of which merit careful reading, amount to a radical review of the law, in pursuit of the objectives of further transparency. Will these reset the family court’s traditional approach and deliver a mortal blow to what remains of the family law silo? The jury is still out, as to whether (to close with another quotation from L.P. Hartley);
“With the opening of the door, and the installation of electric light in the cupboard, the skeletons [what remains of family law exceptionalism] had crumbled into dust.”
Alexander Chandler KC

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