DL v SL
| Jurisdiction | England & Wales |
| Judge | Mr. Justice Mostyn |
| Judgment Date | 27 July 2015 |
| Neutral Citation | [2015] EWHC 2621 (Fam) |
| Docket Number | No. FD14D00083 |
| Court | Family Division |
| Date | 27 July 2015 |
[2015] EWHC 2621 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Mr. Justice Mostyn
No. FD14D00083
Ms. S. Amaouche (instructed by Dawson Cornwell) appeared on behalf of the Applicant.
THE RESPONDENT appeared in Person.
It is my opinion that the law concerning the presence of the media in these private proceedings, which is contained in FPR 27.11 and PD27B, is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them.
Accordingly, for the reasons that are set out in the book Financial Remedies Practice (Class Publishing, 2015 Edition) of which I, together with Sir Peter Singer, Lewis Marks QC and Gavin Smith are the authors, at paras 27.38 – 27.63, it is appropriate for me to make an order which preserves the privacy of the parties. Accordingly, I make an order in the following terms:
"The Media is prohibited from publishing any report of this case that —
(1) Identifies by name or location any person other than the advocates or the solicitors instructing them; or
(2) Refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain."
That latter order is in fact an exact replication of the order made by Mrs. Justice Roberts in the well-known case of Cooper-Hohn v. Hohn [2014] EWHC 2314. The former part of the order replicates the standard rubric attaching to judgments given in the Family Division, which, if the press were not here but if they received a copy of the judgment, they would be bound by.
The preceding paragraphs are the reasons given by me orally on 27 July 2015, with imperfections corrected by me. However, I made it clear at the time, particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted, that I would take the opportunity of expanding my reasons when the draft transcript of judgment was received from the transcribers. This I now do.
I have already given one arguably over-long judgment on the subject ( W v M (TOLATA proceedings: anonymity) [2012] EWHC 1679 (Fam)) and Roberts J has given a characteristically comprehensive judgment in Cooper-Hohn v. Hohn [2014] EWHC 2314. It is not necessary for me to repeat what is said there or to retread the historical road.
The principle of open justice has deep roots. Lord Bingham, writing in The Rule of Law (Allen Lane, 2010, p8), stated that at the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts. He was reflecting Jeremy Bentham's famous aphorism that "publicity is the very soul of justice" ( Works, Vol 4, 1843). Bentham was seeking to answer Juvenal's famous question: quis custodiet ipsos custodes? The reason why justice should be administered openly was that "it is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial". By virtue of publicity the corrupt judge would find himself condemned in "the court of public opinion". In this way "justice becomes the mother of security". These sentiments were strongly endorsed by the House of Lords in Scott v Scott [1913] AC 417. In more recent times Lord Widgery CJ said much the same thing in R v Socialist Workers Printers ex parte Attorney General [1975] QB 637, as did Lord Diplock in Home Office v Harman [1983] 1 AC 280 at 303 and Lord Steyn in Re S (a child)(Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593 at para 30 ("the glare of contemporaneous publicity ensures that trials are properly conducted"). When Bentham was writing in 1843 there was, however, neither a developed appeal system (with published judgments) nor a regulated system of adjudicating complaints about judicial misconduct (the results of which are published in perpetuity on the internet). It might be thought that these developments have supplied an equally sure guard against improbity and an equally keen spur to exertion.
Bentham was of the view that it is not only the probity of the judge that is secured by publicity. He considered it equally "auspicious" to the veracity of witnesses:
"Environed as [the witness] sees himself by a thousand eyes, contradiction, should he hazard a false tale, will seem ready to rise up in opposition to it from a thousand mouths. Many a known face, and every unknown countenance, presents to him a possible source of detection, from whence the truth he is struggling to suppress may, through some unsuspected connexion, burst forth to his confusion."
Or as expressed more pithily by Justice Brandeis in 1913 ( What publicity can do: Harpers Weekly, 20 December 1913): "sunshine is said to be one of the best disinfectants".
So these are the principal reasons for publicity: to secure the probity of the judge, and to enhance the veracity of witnesses. I would accept, of course, that a subsidiary, but not principal, reason is to promote understanding and debate about the legal process, but that could equally be achieved by education. It obviously follows that if a case is heard openly then the media can publish a full report of it, unless the court makes some kind of reporting restriction order, or a statutory provision restricts it.
But publicity of proceedings is not an absolute principle. Surely no-one would suggest that an adoption proceeding, which is heard completely privately, is by virtue of that privacy alone robbed of justice. Or that a civil arbitration, again heard in private, was an unjust process. There are some processes which by virtue of their subject matter should be heard in private. When Bentham wrote over 170 years ago adoption did not exist and I suppose that just about the only matter then justifying secrecy would have been national security.
The debate is not confined to the polar alternatives of openness and privacy. There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right. Privacy was not recognised as a constitutional right in the USA until 1965 ( Griswold v Connecticut 381 US 479). Canada embraced it in 1982 by Article 7 of the Charter of Rights and Freedoms. Here, with the enactment of the Human Rights Act 1998 and the incorporation of Article 8 of the European Convention into domestic law, privacy has become an independently actionable right.
It is because of the existence of this right that in many cases the court must undertake the familiar and highly fact specific balancing exercise between the Article 8 right to privacy and the Article right to freedom of expression of proceedings heard in open court or otherwise in the presence of the media: see Re S. However, as I will explain, there are some categories of court business, which are so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression. These cases are those where the subject matter of the proceedings can rightly be categorised as "private business". In a case of private business where the media are present (either by virtue of rules of court or a specific court order permitting that) an order for anonymisation will generally be made, if sought: see Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343, [2010] 2 FLR 1290. Exceptions to this general rule are where the facts demonstrate disgraceful conduct: see Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427, or where they are so striking that anonymisation is in effect impossible: see, for example, McCartney v McCartney [2008] EWHC 401 (Fam) [2008]1 FLR 1508. This principle, preserving privacy where the subject matter of the proceedings is private business, will be applied even where the rules provide for the hearing of the case in public: see JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, which concerned the approval of a personal injury settlement in favour of a minor, at paras 17, 29 and 35.
Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle set out above. That they are so protected is to be deduced from a number of sources. First, and most obviously, Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private. The fact that the media may attend the hearing pursuant to FPR 27.11 and PD27B...
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