Bloom v Bloom (publication of un-anonymised judgment)

JurisdictionEngland & Wales
JudgeMr RECORDER CUSWORTH QC
Judgment Date02 February 2018
CourtFamily Court

Publicity – Financial remedy – Fraudulent conduct – Non-disclosing husband – Fraud identified principally using publicly available information – Fraud impacting on third parties as well as court and family members – Gravity of conduct – Relevance of implied undertaking where no honest disclosure had taken place – Public interest considerations – Using judgments to defend against consequences of husband’s frauds.

In their financial remedy proceedings the English husband and Russian wife had claimed financial support from one other. The husband had failed to disclose his true financial position but the wife’s team had managed to piece together at least part of the truth by diligent detective work, some of which had then been accepted as the truth by the husband in cross-examination. The recorder had dismissed the husband’s claim, transferred the family home to the wife and ordered the husband to pay her various lump sums. The recorder had also made various important findings concerning the husband’s dishonesty in a range of contexts; describing him as dishonest within the proceedings, in relation to his dealings with the wife and the wife’s family and in relation to various third parties. The judgment set out the husband’s lies to mortgage companies, in order to raise capital, and his elaborate and carefully conceived lies to prospective purchasers of properties and to investors in his companies, designed to boost his business profits. These lies had been backed up in some cases by professional valuations obtained under false pretences.

The wife sought permission to rely on the contents of these judgments in her dealings with current or past mortgage companies, HMRC, creditors, the police and any other person or entity for the purposes of enforcement of the financial remedy order and any costs orders. She also applied for the judgments to be published, un-anonymised. She was supported in this by the intervenor, her mother. The husband resisted the application.

Held – (1) It was well established that the court could refer matters to public authorities, applying Solicitor General v JMJ; aka Re Jones (alleged contempt of court)[2013] EWHC 2579 (Fam), although the court did not itself usually report crimes that it had uncovered to the authorities and there was no general rule that financial papers evidencing some malfeasance would always be sent on. There was no inherent confidence in dishonesty, but that did not mean that there was no discretion in the court even if dishonesty was found, applying Y v Z (disclosure to police and FCA: publicity)[2014] EWHC 650 (Fam). Every case had to be taken on its own merits, applying A v A; B v B[2000] 1 FCR 577, (see [9], [14], [24], [25], below).

(2) The gravity of the husband’s conduct was a factor in favour of un-anonymised publication, as was the fact that these frauds had affected innocent third parties, and were not just a matter between the parties, or between the husband and HMRC. Whilst this husband’s behaviour was not at the very extreme end of the scale identified in Y v Z, it was certainly on a par with ‘falsifying accounts’ and ‘committing defalcations with his client’s money’. The husband’s conduct had been both serious and damaging: the frauds had been calculated, grave, and repeated. He had not exhibited any apparent remorse and he had not expressed (or seemed to experience) any element of regret for systematically defrauding people for some years. It was plainly in the public interest that all potential future investors, business associates, pension fund trustees, company shareholders, potential partners and other members of the public were protected from his schemes insofar as possible (see [10], [28], [29], [30], below).

(3) This husband had not properly availed himself of the duty of full and frank disclosure and its allied protection of the implied undertaking to preserve confidentiality in the information provided; instead he had actively undermined and ignored that duty by continued dishonesty throughout the proceedings. Whilst omission might in some cases be taken to be a less serious sin than fraudulent commission (for example the forgery of documents for the direct purpose of the proceedings), the husband here had been, by his omissions in the proceedings, covering up other fraudulent commissions in his business dealings. Those limited admissions which the husband had been constrained to make in evidence had added little or nothing to the evidential picture which the wife had already built up of his persistent fraudulent conduct; to that extent the protection available to the defendant in Regina v K [2009] EWCA Crim 1640 in respect of admissions would not avail him. Had the husband provided full and frank disclosure, and made a clean breast of matters, it might have been easier for him to argue against publication at the end of this process. As he had not complied with his duty, the balance fell clearly against him (see [13], [18], [19], below).

(4) The concern that publication without anonymization could lead to future litigants being deterred from disclosing for fear of wider public exposure, and that this in turn might undermine the giving of full and frank disclosure generally, had been rejected in a number of cases, including A v A; B v B and W v W (ancillary relief: non-disclosure)[2003] EWHC 2254 (Fam). Veluppillai v Velluppillai[2015] EWHC 3095 (Fam) had made a wider public policy point with which the court agreed, noting that it was actually in the public interest for iniquitous conduct by a litigant to be exposed. Publication in this case would show to others that a party to divorce proceedings could not easily hide the truth. When pursued diligently as they had been here, the investigations that the other party could undertake (with the court’s inquisitorial assistance at the hearing, and with the tools provided by the FPR), meant that wholesale non-disclosure was simply not going to produce a good result for the responsible party and, further, that a non-discloser when caught might face significant and serious consequences in terms of exposure thereafter (see [15]–[17], [22], below).

(5) Where much of the information upon which findings ultimately had been made was publicly available, it was more straightforward for the court to publish and disseminate the judgment: because the pieces of the puzzle were largely publicly available anyway; and because there was little question of actual disclosure produced by the husband under a compulsion being used by anyone for a collateral purpose (see [21], below).

(6) The court also had to take into consideration the fact that all the reported authorities had been dealing with instances where the party in question had been the respondent, not a claimant. It was an aggravating factor that this husband had sought to use the court as a tool for the extraction of significant sums from the wife and her family, by seeking positive orders for payments in his favour, based upon his fundamentally untrue presentation of his financial affairs (see [30], below).

(7) Given the decision on anonymity, it might be that the application for separate permission to the wife specifically was technically otiose. For the avoidance of doubt the court granted it and recorded that it would have done so even if the more general un-anonymised publication had not been granted. The wife, through no fault of her own, other than perhaps gullibility and inexperience, allied to her lack of complete understanding initially of the English language, had been linked to the husband’s malfeasances. She should be entitled to defend herself from implication in these by reference to what the court had found, and should be able to make full explanation to anyone who made enquiry of her as a result of the husband’s actions. She should not have to apply to this court, costing further legal fees and court time, on every occasion that it became appropriate to use the judgments (see [32], [33], below).

Statutory Provisions Referred To

Family Procedure Rules 2010 (SI 2010/2955), r 29(12).

Family Procedure (Amendment) Rules 2012 (SI 2012/679).

Cases referred to

A v A, B v B[2000] 1 FCR 577, [2000] 1 FLR 701.

Allen v Clibbery[2002] EWCA Civ 45, [2002] 1 FCR 385, [2002] Fam 261, [2002] 2 WLR 1511, [2002] 1 All ER 865, [2002] 1 FLR 565, [2002] UKHRR 697.

Appleton and Gallagher v News Group Newspapers Ltd and PA[2015] EWHC 2689 (Fam), [2016] 2 FLR 1.

Associated Newspapers v Bannatyne & Ors [2015] EWHC 3467 (Ch) (16 November 2015, unreported).

HMRC v Charman & Charman[2012] EWHC 1448 (Fam), [2012] 3 FCR 389, [2012] STC 2076, [2012] 6 Costs LO 818, [2012] 2 FLR 1119.

J (a child contra mundum injunction), Re[2013] EWHC 2694 (Fam), [2014] 2 FCR 284, [2014] EMLR 7, [2014] 1 FLR 523, [2013] Info TLR 202.

L v L (ancilliary relief proceedings: anonymity)[2015] EWHC 2621 (Fam), [2016] 1 WLR 1259.

Lykiardopulo v Lykiardopulo[2010] EWCA Civ 1315, [2011] 1 FCR 61, [2011] 1 FLR 1427.

Marlwood Commerical v Kozeny[2004] EWCA Civ 798, [2005] 1 WLR 104, [2004] 3 All ER 648, [2004] 2 CLC 166.

Regina v K [2009] EWCA Crim 1640, [2009] 3 FCR 341, [2010] QB 343, [2010] 2 WLR 905, [2010] 2 All ER 509, [2009] STC 2553, [2010] 1 Cr App R 3, [2010] 1 FLR 807.

S v S (judgment in chambers: disclosure) [1997] 1 WLR 1621, [1997] 3 FCR 1, [1997] STC 759, [1997] 2 FLR 774, FD.

Solicitor General v JMJ, aka Re Jones (alleged contempt of court)[2013] EWHC 2579 (Fam), [2014] 2 FCR 354, [2014] 1 FLR 852.

Veluppillai v Velluppillai[2015] EWHC 3095 (Fam), [2015] 6 Costs LO 735, [2016] 2 FLR 681.

W v W (ancillary relief: non-disclosure)[2003] EWHC 2254 (Fam), [2003] 3 FCR 385, [2004] 1 FLR 494.

Y v Z (disclosure to police and FCA: publicity)[2014] EWHC 650 (Fam), [2014] 2 FLR 1311.

Application

The wife applied for permission, in certain circumstances, to rely on the contents of two judgments, dated 2 May 2017 and 4 December 2017, in proceedings between the husband and the wife, and that both...

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