Clibbery v Allan and another

Dame Elizabeth Butler-Sloss, P. :

This is an appeal by Ivan Allan, (the appellant), from the refusal of Munby J. on the 14 ^th June 2001 to continue injunctions granted ex parte by Connell J. on the 3 ^rd May restraining Glory Anne Clibbery, (the respondent), from disclosing information about the appellant. The appeal raises fundamental issues over the procedures for hearing family cases in the High Court and in county courts round the country. The specific question raised on this appeal is whether the practice of hearing the majority of family cases in chambers has the consequence that information about those proceedings may not be reported.

The background to this appeal is an application by the respondent in the Royal Courts of Justice under Part IV of the Family Law Act 1996 seeking a non-molestation order against the appellant and an occupation order in respect of a flat in Piccadilly owned by a company of which the appellant was the beneficial owner. The application was heard by His Honour Judge Krikler on the 9 ^th April, 2001. The respondent abandoned her application for a non-molestation order. The issues before Judge Krikler were whether the court had jurisdiction to make an occupation order, and if there was jurisdiction whether, in the exercise of his discretion, he should make such an order. The respondent accepted that she had no beneficial interest in the flat and that she and the appellant did not marry nor agree to do so. Judge Krikler found for the appellant and held that the respondent and appellant had never lived together as husband and wife and that the flat had never been their home. Under the provisions of the Family Law Act, section 36(1), he had no jurisdiction to make an occupation order. He also decided that, if he had had jurisdiction, he would not have made an order. He dismissed the application and ordered the respondent to pay the appellant's costs. The respondent then vacated the flat in which she had been living.

The case before Judge Krikler appears to have generated a considerable volume of paper, numerous affidavits and documents disclosed on discovery. The trial bundle was contained in six lever arch files. None of the documents filed, nor the evidence given to the circuit judge, nor the orders made, nor his judgment was shown either to Munby J. nor to us. The case was heard in accordance with rule 3.9 of the Family Proceedings Rules 1991, (the 1991 Rules), in chambers and judgment was given in chambers. Munby J, in his judgment, described the next step as the reaction 'of the woman scorned'.

The respondent took her story to the Daily Mail. She appears to have been particularly upset and angry by an affidavit sworn by the appellant and, it would seem, she gave direct extracts from it to the Daily Mail journalist. She set out her side of the story in emotive language. The appellant is a prominent business man, living mainly in Hong Kong who had a sexual relationship with her over a number of years, and the story has been published several times in the Daily Mail and more recently in other newspapers.

On the 30 ^th April 2001, the appellant's solicitor wrote to her solicitor seeking a written undertaking from her not to repeat the publication nor to disclose confidential information. On her behalf, her solicitor refused to do so and said that his client wished to alert members of the general public to the lack of a concept of 'common law marriage' and that women should be aware of how little rights they have on the breakdown of such a relationship. Her solicitor asserted her right to publish the information. The appellant then learned that she had been in touch with a journalist in the Far East and that she had suggested that she might sell a number of ideas for articles about the appellant. Malice or bad faith on the part of the respondent has not however been argued as part of this appeal.

On the 3 ^rd May the appellant issued an application in the High Court Family Division for injunctions to restrain the respondent from:

"in any way disclosing to any person save her legal advisers in these proceedings:

a) The text or a summary of the whole or any part of any affidavit, statement (whether or not sworn) or other document filed or disclosed in any proceedings

b) The text or a summary of the whole or any part of any oral evidence given by the parties or by any other witness in the ….proceedings

c) The text or a summary of the whole or any part of the judgment delivered by His Honour Judge Krikler on the 12 ^th April 2001".

On a without notice application made on the 3 ^rd May Connell J. granted the injunctions as requested and the respondent was served the same day. On the 10 ^th May the appellant issued an application to commit the respondent for contempt of court in respect of the disclosure of information to the Daily Mail and to the journalist in the Far East. Those proceedings were adjourned pending the hearing before Munby J. and on appeal. After the oral submissions were completed, we were informed that the contempt proceedings have been withdrawn.

The judgment of Munby J. has been reported as Clibbery v Allan and Another [2001] 2 FLR 819. He set out the facts at pages 822 to 827 and said at paragraph 6:

"As required by r 3.9(1) of the Family Proceedings Rules 1991, …..the proceedings before His Honour Judge Krikler were conducted and judgment was given in chambers. It is common ground that no application was made for the proceedings or any part of them to be heard otherwise than in chambers. Equally it is common ground that at no time was His Honour Judge Krikler asked to make any special direction as to the confidentiality of the proceedings before him, nor did he do so. In short, the proceedings were conducted in precisely the same way, and no doubt on the same assumptions by those involved as to the implications of the fact that they had been heard in chambers, as hundreds of similar cases are heard up and down the land every day, whether in the Family Division of the High Court or in county courts exercising family jurisdiction.

He set out the issues at page 827 as follows:

"Put very shortly—and expressed in somewhat general terms—the question which I have to consider can be summarised as follows: When proceedings in relation to money or property (as opposed to children) are heard in the Family Division in chambers, as they almost invariably are, is it, as the respondent would have it, unlawful and a contempt of court for one of the parties to make public disclosure of what has gone on in chambers? Or, as the applicant would have it, is such disclosure permissible in the absence of any lawfully imposed direction of the trial judge to the contrary?"

At page 828 he said:

"Anyone with any experience of practice in this Division probably approaches the solution to the present problem with a number of more or less firmly rooted preconceptions and beliefs. However, and as I recently had occasion to point out in a not wholly dissimilar context, such assumptions, however inveterate and however distinguished those who hold them, can be a less than accurate guide to the true legal position: see Kelly v British Broadcasting Corporation [2001] Fam 59,71B, 71H. Accordingly it is best to go back to basics."

He then, in the remainder of his long and careful judgment, demolished those preconceptions and held that there was in principle no difference in the procedures to be adopted in the Family Division of the High Court from the other two Divisions. The guiding principle was open justice and this applied across the board. The practice of hearing cases in chambers was largely for administrative convenience and did not denote privacy or confidentiality of the proceedings or the documents used in the proceedings. The only derogation from that position was to be found in the express exceptions set out by the House of Lords in Scott v Scott [1913] AC 417, in the statutory exceptions in the Judicial Proceedings (Regulation of Reports) Act 1926 (as amended), the Administration of Justice Act 1960, section 12 and the Contempt of Court Act 1981, section 11.

His conclusion is found at pages 864 to 865:

"In my judgment Mr Monson is correct in his submission that no confidentiality attaches to proceedings, or to information conveyed in the course of proceedings, in the Family Division merely because those proceedings take place in chambers. He is correct in his submission that FPR rr 3.9(1),10.20 and 10.15 do not, either individually or together, create any general obligation of confidence in relation to proceedings in the Family Division heard in chambers. More specifically, having regard to the complaint made in the present case, he is correct in his submission that information which is not already inherently confidential does not become confidential merely because it is packaged in an affidavit sworn and filed in the Family Division.

Putting the matter the other way round, in the Family Division, as in the other divisions of the High Court, the starting point has to be the principles to be found in Scott v Scott [1913] AC 417, Forbes v Smith [1998] 1 FLR...