Brid Angela Gallagher v Donal John Gallagher
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 13 June 2022 |
| Neutral Citation | [2022] EWFC 52 |
| Court | Family Court |
| Docket Number | Case No: LV20D03547 |
[2022] EWFC 52
Mr Justice Mostyn
Case No: LV20D03547
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Webster QC and Phillip Blatchly (instructed by Hall Brown) for the respondent (the applicant for a reporting restriction order) (“the husband”)
Jonathan Southgate QC and Petra Teacher (instructed by Rayden Solicitors) for the applicant (the respondent to the husband's application) (“the wife”)
Brian Farmer addressed the court on behalf of the Press Association
Hearing dates: 21, 23, 25, 27 May 2022
Judgment Approved by the court for handing down
This judgment was delivered in private. The judge hereby gives permission – if permission is needed – for it to be published. It should be reported as Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52
The judge has made a reporting restriction order which provides that in no report of, or commentary on, the proceedings or this judgment may the children be named or their schools or address identified. It further provides that certain financial matters may not be reported. Failure to comply with that order will be a contempt of court.
The husband applies for a reporting restriction order, alternatively an anonymity order. Each order, if granted, would constitute a derogation from the rule or principle of open justice.
In my interim decision in this case 1 I set out the basis of the husband's application, noting that the relief sought was put differently between (i) the Form D11, (ii) written submissions entitled “legal basis to the husband's application for a reporting restriction order or anonymity”, and (iii) the draft order. The draft order sought anonymisation throughout the proceedings of the parties and prohibition of reporting of any part of these proceedings which would: (a) identify the parties, the children, the children's school, the property where the children are living, or the companies in which the husband is a director; or (b) that would disclose the facts and matters raised in court during the hearing before me.
The husband's grounds for seeking the order are as follows:
i) Article 8 of the ECHR is engaged by a report of information disclosed in financial remedy proceedings, obtained under compulsion.
ii) A significant proportion of the final hearing focussed on the valuation of a construction business in which the husband is a joint and equal shareholder. Dissemination of information regarding that business “could sour existing relationships and enable his competitors, all of whom bid and compete for the same work, to obtain a significant advantage”.
iii) Reporting of that business information would affect the commercial interests of third parties including, principally, the husband's business partner.
iv) Aspects of the husband's evidence and his approach to the prospective liability arising from an Irish lawsuit against him could be exploited and used for collateral purposes and prejudice his position in those proceedings. The nature of the allegations could expose the husband to criminal sanction, including imprisonment.
v) Most of the evidence filed by the parties was done so with a reasonable expectation that their anonymity would be preserved, with steps including the reply phase completed in January/February 2021, prior to the court's analysis in BT v CU [2021] EWFC 87 on 1 November 2021.
In my decisions of BT v CU [2021] EWFC 87, A v M [2021] EWFC 89, Aylward-Davies v Chesterman [2022] EWFC 4, and Xanthopoulos v Rakshina [2022] EWFC 30, I have sought to elucidate the principles governing the openness of those financial remedy proceedings, not falling within s. 12 of the Administration of Justice Act 1960, which are heard in private under FPR 27.10 but which the press and legal bloggers may attend under FPR 27.11.
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.
I make no apology for taking the opportunity of elaborating these principles in the paragraphs that follow. I intend this to be my last judgment of substance on this subject. I leave it to others to determine if I am right or wrong. Henceforth, for as long as the law stays as it is, I will decide any applications for orders for reporting restrictions and/or anonymity on their individual merits applying these principles without further jurisprudential elaboration.
Open justice
In 2014 Holman J made the momentous decision that he would henceforth sit in public in all cases save for a few obvious exceptions. In the financial remedy field his only general exception was the FDR. He explained his reasons for doing so in Fields v Fields [2015] EWHC 1670 (Fam) at [3]:
“The family courts must be more transparent and there is no good basis for making an exception of financial cases. Such cases are heard in public on appeal to the Court of Appeal and the Supreme Court, and the law reports and press reporting are riddled with considerable intimate and financial detail of many financial cases on appeal. Accredited journalists are, in any event, entitled to be present even when the court is sitting in private, subject to strict and limited exceptions. To permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency.”
His view was that a journalist attending a hearing under FPR 27.11 was “tightly restricted” in what they could report and that therefore there was only “a mere illusion of transparency”.
I now completely agree with Holman J's insistence on true transparency in family cases. He has been a lonely pioneer for open justice in family proceedings for eight years. It is striking that no-one has ever appealed his decision to hear a case in open court.
However, for the reasons I explained in Xanthopoulos v Rakshina [2022] EWFC 30 at [115] – [116], I do not agree with him that in a case which is not about child maintenance a journalist...
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