‘Privacy’ or ‘Secrecy’? How best to navigate the thrust towards Transparency within the Financial Remedies Court. - An article by Claire Athis Schofield

‘Privacy’ or ‘Secrecy’? How best to navigate the thrust towards Transparency within the Financial Remedies Court.

Claire Athis Schofield analyses financial remedies case X v C [2022] EWFC 79 and proposes a pragmatic approach to dealing with any situation where it is suggested that in the interests of greater transparency parties’ confidential information should be shared with or published by the media.

Reading the string of judgments from Mostyn J (BT v CU [2021] EWFC 87, A v M [2021] EWFC 89, Xanthopoulos v Rakshina [2022] EWFC 30, and Gallagher v Gallagher [2022] EWFC 52) all decrying the ‘culture of secrecy’ within the Financial Remedies Court, fills me with increasing trepidation. My concern is for wives and husbands who are already under extremely high levels of stress during court proceedings, even though they themselves believe that each of their hearings will be held ‘in private’. By that they understand (as we all did for years) that their confidential information will be actively protected by the Family Court. Imagine explaining to them that their Judge at Final Hearing could publish a written account of their case on a publicly accessible website with their names included. Or that a journalist could attend their FDA, be given sight of their financial information and report upon it. How can we ensure that we take all steps necessary to protect our clients’ privacy in this new era of transparency?

Help is at hand from the Lead Judge in the Financial Remedies Court for Kent, Surrey and Sussex, HHJ Stuart Farquar, which is very appropriate as he is the Chair of the Financial Remedies Court Transparency Group, whose report following public consultation is eagerly awaited [watch this space]. In the meantime, Judge Farquar has published his Judgment in the case of X v C [2022] EWFC 79 [link], which dealt with the issue of whether the parties should be granted anonymity and provides helpful guidance for us all.

X v C [2022] EWFC 79 would ordinarily have been heard by a District Judge, but for an unanticipated gap in HHJ Farquar’s diary, the parties being of relatively modest means. There were issues as to assertions of non-matrimonial assets and litigation conduct, which make for interesting reading, but for the purposes of this article it is the Judge’s determination on the issue of whether his published judgment should be anonymised set out at paragraphs 102 to 118 upon which I shall focus.

HHJ Farquar makes reference to Xanthopoulos v Rakshina [2022] EWFC 30 and Mostyn J’s conclusion that Financial Remedy cases should always be reported without anonymity unless the Court has made a previous Reporting Restriction Order [‘RRO’]. However, Judge Farquar goes on to report that the law is in a ‘state of flux’ as (putting it bluntly) other High Court Judges do not agree with Mostyn J. For example, Holman J always sits in open court rather than in private, although he routinely anonymises his judgments. VV v VV [2022] EWFC 41 is an example of a judgment from Peel J published anonymously without any prior RRO or apparent consideration of the issue. HHJ Farquar further notes that he is ‘not aware of a single reported case at any level below High Court Judge in which anonymity has not taken place’ and reveals that he had originally intended to publish his judgment anonymously as he did not consider it to be fair to publicise the names of parties who had no idea that such publication was even a possibility.

However, the Husband [who appeared in person, supported by a McKenzie Friend] then complicated matters for the Honourable Judge by making a request to the Court for full publication of the parties’ names and details within the Judgment [only the child’s name to be anonymised], supported by submissions referring to his Article 10 rights and arguments within the Mostyn J authorities set out above. The Wife aspired to anonymisation, in order to protect the child’s identity, and prevent the Husband from adding the Judgment to his ‘Rogues’ Gallery’, a section on his company website which he used [W alleged] to ‘name and shame’ various lawyers. The issue of anonymity was now in dispute and so fell to be determined by the Court.

HHJ Farquar noted that although some High Court Judges routinely anonymised their judgments, none that did so had addressed the matter specifically within those judgments, whereas, Mostyn J has provided a ‘fully reasoned judgment’ in opposition to the practice. He quoted this reasoning as follows [in para 110]:

“The judgment of Mostyn J in Gallagher v Gallagher [2022] EWFC 52 has recently been published and he sets out the principles that apply to cases of this nature as follows:

5. Those principles, which apply equally to applications for anonymity and to applications for reporting restriction orders, I summarise as follows:

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 conclusion HHJ Farquar draws from Gallagher v Gallagher [2022] EWFC 52 is that in order to be able to anonymise a Judgment, the Court would have to undertake a “focussed fact-specific Re S exercise”. He helpfully set out the relevant test in relation to the Article 8 [privacy and family life] and 10 [freedom of expression] human rights engaged by quoting Lord Steyn in paragraph 17 of Re S (Identification: Restrictions on Publication) [2004] UKHL 47,:

"First, neither article has as such precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test".

Within HHJ Farquar’s subsequent application of this ultimate balancing test to the facts of this case, the following points should be noted:

The question to start with is ‘why should anonymity be granted?’
The mere existence of a child of the parties is not sufficient for the child’s Article 8 rights to prevail [the parties in Gallagher had a child]
The fact that highly contested Children’s Act proceedings were ongoing weighed towards this child’s Article 8 rights
The lack of media interest in fact to date, and also in likelihood in future, weighed against the public’s Article 10 rights
Despite the fact that stories about particular individuals are more attractive to media readers than stories about unidentified people [as set out in Re Guardian News and Media Ltd [2010] 2 AC 697] this bears much less weight where the parties in question are not already in the public domain and the anonymised judgment allowed all the Court’s process and reasoning to be publicised.
Relying on his findings of dishonesty against the Husband and that he was motivated to cause anguish to the Wife (and therefore indirectly to the child), some weight was given to the risk that the Husband may seek to publish any non-anonymous judgment inappropriately.
No mention was made of financial information being inherently ‘private’ to individuals: as Mostyn J has pointed out so many times, other courts routinely publish parties’ names despite compelling financial disclosure.
No weight was given to the allegation that the Husband may wish to use the Judgment to air his views about lawyers.

Judge Farquar was satisfied that the balancing exercise fell in favour of restricting the Article 10 rights of the parties and prioritising the Article 8 rights of the child in this case, therefore anonymity order and reporting restriction orders were made.

X v C [2022] EWFC 79 is a useful Judgment to have a copy of close by in case of need. By their very nature Transparency issues can arise suddenly at a hearing and so it is advisable to always be prepared to address them, no matter how unanticipated they may be. Until there is greater clarity from the higher courts, the law on the meaning and limits of ‘privacy’ will remain in flux and we will have deal with our cases in that context. In my view, the vast majority of our clients will instruct us to defend their anonymity and/or privacy as strenuously as possible, and so that is what we must be ready to do.

In conclusion, the key takeaway points are:

Remember FDR hearings are specifically excluded from the general right of duly accredited media representatives and legal bloggers to attend private hearings [by virtue of FPR 27.11 (1) (a) and see para 2.1 of PD27B]
If a journalist or legal blogger attends either your FDA or Final Hearing then be prepared to make an immediate application for an interim reporting restriction order, which will ‘hold the ring’ until the Court can hear evidence and then properly undertake the Re S balancing exercise. Mostyn J made an interim order in the Gallagher case [see paragraphs 58 to 63 of his Judgment and XZ v YZ [2022] EWFC 49].
Be mindful that a reporting restriction order is made under the inherent jurisdiction and therefore such orders are made in the High Court. HHJ Farquar does not address the jurisdictional point in X v C despite the fact that the parties were originally listed before the District Bench.
Note that since 28 June 2022 journalists and legal bloggers can apply to ‘remotely observe’ hearings rather than personally attend them [by virtue of S85A Courts Act 2003] so just because you cannot see them at your attended hearing in court does not mean that they are not there.
Take detailed instructions in preparation for your submissions on the substantive Re S balancing exercise, remembering that you need to answer the question: why should there be restricted reporting/anonymity in this specific case? Focus on the Article 8 rights of any child(ren) of the family, as this seems to have been the most fertile ground to date.
Note that although paragraph 2.3 of Practice Direction 27B sets out clearly that journalists and bloggers are not entitled to receive or peruse court documents referred to in the course of evidence (in contrast to civil proceedings), this is yet another aspect of transparency upon which Mostyn J has a different view. In Gallagher [paragraphs 55 to 57] he explains why he thinks parties’ Skeleton Arguments should be provided to the press by ‘default’, and sight of other court documents made subject to a Re S balancing exercise. Therefore, be prepared to make representations to the Judge in regard to all court documents on the basis of informing a Re S analysis of each individually.
Even in the absence of media representatives, be prepared to justify why the parties’ names in your client’s case should not be published as part of the Judgment [anonymity order] and/or court documents shown to journalists by the other party, no longer to be considered a contempt as per Gallagher paragraph 52 [reporting restriction order].

Dealing with unexpected issues at a Financial Remedy hearing can be difficult and stressful for parties and their representatives alike. Contact our family clerks to arrange a pre-hearing conference with one of our experienced and specialist barristers [link], who will provide full advice on Transparency and all other issues, so that you and your client are as well prepared as possible for any eventuality which may arise at Court.