Cooper-Hohn v Hohn
| Jurisdiction | England & Wales |
| Judge | Mrs. Justice Roberts |
| Judgment Date | 07 July 2014 |
| Neutral Citation | [2014] EWHC 2314 (Fam) |
| Court | Family Division |
| Docket Number | Case No: FD 12 D 01549 |
| Date | 07 July 2014 |
[2014] EWHC 2314 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice,
Strand, London, WC2A 2LL
Mrs. Justice Roberts
Case No: FD 12 D 01549
Mr. Martin Pointer QC, Mr. Geoffrey Kingscote and Mr. Adam Wolanski (instructed by Mishcon de Reya) for the Applicant
Mr. Lewis Marks QC, Ms. Elizabeth Clarke and Mr. Guy Vassall-Adams (instructed by Withers LLP) appeared for the Respondent
I have to determine what is essentially a case management issue although it has absorbed an inordinate amount of time which has not been factored into the timetabling of this case. It arises in the context of a substantive hearing which is ongoing before me in respect of financial claims arising from divorce proceedings between a husband and wife. Whilst the hearing is being held in private, it is one at which accredited members of the press have been present, as they are fully entitled to be.
The issue for determination at this point is the extent to which they should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.
In circumstances to which I shall come, I have heard much argument about the issue of what I have referred to during argument as "the default position". In other words, does the court start from the point that because of the confidential and essentially private nature of these proceedings, nothing can be reported unless and until the press have secured the court's permission to make public such aspects of the proceedings as they might wish to publish (the husband's position); or is the starting point one of unrestricted licence to the press to publish whatever they wish, subject only to the court, either of its own motion or on the application of either party, making a reporting restriction (the wife's position)?
That, until very recently, it appeared that I was going to have to consider this question as a general proposition and in the absence of a specific application seemed to me to be singularly unfortunate and to place the court in an invidious position.
The position has now been resolved by an application made on behalf of the media in circumstances which I shall explain in due course.
The issue arises in the following context. Mr. Martin Pointer QC and Mr. Geoffrey Kingscote represent the wife in these proceedings. The husband has an equally distinguished legal team in Mr. Lewis Marks QC and Ms. Elizabeth Clarke. When I received the papers and began my reading in preparation to hear this case, I had before me a significant quantity of material relating to the parties' financial position and detailed and lengthy skeleton arguments from counsel instructed on both sides. Those skeleton arguments descended into considerable detail in relation to the issues arising in these proceedings as they concern computation and distribution. In particular, the central issues in the case flowed from arguments about whether a departure from a starting point of equality of division was justified on the basis of a special contribution made by one of the parties, unmatched by the other.
I record those issues here because they have been referred to openly in a recent judgment handed down by the Court of Appeal to which I shall refer shortly.
What was not before me at that stage was any reference to issues which might flow from the attendance of the press at the hearing and the fact that aspects of the case were by then, to a significant extent, within the public domain as a result of its recent journey to the Court of Appeal. It appears that there had already been significant reporting of the case in the national and international media as a result of the judgment handed down by the Court of Appeal on 18th June 2014, just over a week before this hearing commenced.
To set the issue in its proper context I need to say something at this stage about the individual parties who are involved in this litigation. The husband is Sir Christopher Hohn; the wife is Jamie Cooper-Hohn, the mother of this couple's four children born during the course of a marriage which subsisted for 17 years. I am going to refer to the parties in this judgment as "husband" and "wife"; I do so for reasons of convenience only and intend no disrespect to either.
The husband has enjoyed a long career as an extremely successful hedge fund manager. It is information within the public domain that very considerable wealth built up during the course of this marriage has been channeled by the parties into a Foundation which is one of the largest private charities in the world. It is also a matter of public record that the assets of the Foundation run to several billions of dollars. The wife, who describes herself as a "philanthropist", a description which appears to me to be wholly apt, has been involved from the outset in the operation of the Foundation. Throughout the course of the subsistence of the marriage it is common ground that she has immersed herself with the husband in the whole ethos of the Foundation and in the identification of the beneficiaries of the substantial grants it has made.
It is accepted by the parties that the underlying assets of the Foundation are not assets available to them in the context of their financial claims arising on divorce, but their personal wealth is none the less significant. As was recorded in the judgment recently handed down by the Court of Appeal, they comprise investments in a fund worth no less than $1.15 billion, corporate management entities valued by the husband at $109 million exclusive of any value to be attached to their trading activity which, on the wife's case, might have made the underlying shares worth between £513 million and £872 million. Other investments amount to about $30 million. Pensions account for about $85 million and properties, a further $36 million. Thus, in total, the assets available for distribution have a value of at least $1.3 billion.
As is further recorded in the Court of Appeal's judgment, the wife's position is that an application of the modern law post White and Miller and McFarlane should lead to a position where she, as a claimant wife, can ordinarily expect to receive one half of the resources built up during the marriage. The husband's position, as set out in open correspondence referred to in the judgment, is that her award should be restricted to 25% of the total assets on the basis of an assertion that the generation of wealth of this magnitude constitutes a special contribution which justifies a departure from what might ordinarily be a starting point of equality.
Neither of these parties has hitherto attracted any particular press attention outside their roles in relation to the Foundation or its related entities although each is, to some extent, a public figure as a result of their charitable endeavours. The husband is, of course, widely acknowledged to have achieved remarkable success in his career to date as an investment manager. It is common ground that neither has up to this point attracted what might be referred to as "celebrity" status in the media world outside those roles. Such press interest as appears now to be current in these proceedings arises, as far as I can discern, from the very significant extent of the assets (which exceed any case yet to have reached these courts) and/or from the legal principles which fall to be debated in the context of how the assets should be distributed between them at the conclusion of these proceedings.
It was further common ground, as these proceedings commenced before me on Tuesday of last week, 1st July 2014, that:
(1) neither party was seeking anonymity in these proceedings, notwithstanding their nature and the fact that they are being heard in private. Their identities, the substance of the principal issues before this court, and several aspects of the evidence which will be canvassed before me have, as I already indicated, been referred to by the Court of Appeal in an open judgment which was handed down on 18th June, some 10 days before this hearing commenced.
(2) Neither was seeking an anonymised judgment at the conclusion of the substantive issues which I shall have to determine, although the need for any specific redaction in respect of confidential or commercially sensitive information has yet to be addressed.
(3) The case involves legal issues and principles the determination of which are likely to be of interest and importance not only within legal circles but the wider public at large.
(4) Neither party had made an application at this stage to exclude the press from any part of these proceedings and no future application was advertised by either.
(5) There was no application by either party for an order restricting what the press could or could not report.
In these circumstances, and having completed most of my reading on the first day of the time set aside for this hearing, I asked my Clerk to raise the issue with counsel on both sides. The relevant part of his e-mail sent shortly after midday last Monday, 30th June, was framed in these terms:-
"The Judge is currently reading the papers in preparation for starting this case tomorrow. It seems inevitable that there will be a level of media interest in the case given previous reporting and the judgment of the Court of Appeal which has just been published.
"If either of you is taking a position in relation to the attendance by the media and/or reporting restrictions in the...
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