Lady Hiroko Barclay v Sir Frederick Barclay
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cohen |
| Judgment Date | 05 May 2021 |
| Neutral Citation | [2021] EWFC 40 |
| Court | Family Court |
| Docket Number | Case No: ZC19D00073 |
| Date | 05 May 2021 |
[2021] EWFC 40
IN THE FAMILY COURT SITTING AT
THE HIGH COURT OF JUSTICE
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HON. Mr Justice Cohen
Case No: ZC19D00073
Mr S Leech QC (instructed by Payne Hicks Beach) for the Applicant
Ms K Wilson and Mr J Tod (instructed by Miles Preston) for the Respondent
Mr J Browning (Bloomberg) and Mr B Farmer (PA) for the Media
Ms H Rogers QC and Mr J Price (instructed by Signature Litigation) for the Interested Parties
Hearing dates: 20 April 2021
Approved Judgment
THE HON. Mr Justice Cohen
This judgment was delivered in private. The judge has given leave for the judgment to be published.
In March 2021 I heard the application by Lady Hiroko Barclay (“W”) for financial remedy orders against her husband Sir Frederick Barclay (“H”). I handed down judgment on 30 March 2021.
The proceedings were heard in private in accordance with FPR 2010 Rule 27.10. They were attended by a number of accredited representatives of the media as provided for by Rule 27.11(2)(f).
At the commencement of the hearing I imposed an interim reporting restrictions order (RRO) which remains in place. In accordance with normal practice, I permitted the publication of the fact that the hearing was taking place before me and that the parties and their legal representatives could be identified.
I was referred to the judgment of Mostyn J in Appleton v Gallagher & others [2015] EWHC 2689 (Fam), where at paragraph 24 he had granted an injunction prohibiting the media from publishing any report of the case that … (b) refers to or concerns any of the parties' financial information whether of a personal or business nature …
I was anxious that a hearing taking place against what appeared to be a tight timetable might be disrupted by arguments about what was and what was not ‘the parties’ financial information’. Mr Farmer, speaking on behalf of the media, hypothesised certain situations where evidence might be given which the media wished to be free to publish and which would not be financial information. I determined that there should be no publication of the hearing beyond the identity of the parties and their representatives but said that if information or evidence was given during the hearing which it was asserted was not the parties' financial information and which the media wished to publish, I would hear an application in respect of that material. No such application was made at any stage of the trial.
I now have to determine whether or not my judgment should be published either in full or in part and whether the RRO should remain in place.
Before I turn to the positions of the parties and the interested parties, I should refer to the limited measure of agreement that has emerged between the parties. Both sides agree that the award and the open position of each party should be made public. They were as follows:
Lady Barclay
She sought an award of £120m to be paid in two tranches over a period of 3 months from the date of judgment. She accepted that notwithstanding the very long marriage, the production of a sum of this size in relatively short order would require a substantial discount from a full sharing order.
Sir Frederick Barclay
He offered W:
i) 40% of the remaining loan notes due to him subject to the consent of the trustees of the trust which issued them, and in the meantime 40% of the net amount received by him from the trust by way of loan note redemption;
ii) 50% of such receipt as he might receive from the relevant trustees of the equity in the yacht and in the family home.
As Mr Leech QC correctly pointed out, the effect of H's offer might be that W would receive nothing as H's trustees would not regard it as in his interest for the funds to be made available to him to pay to W.
The Court Order
I ordered H to pay to W lump sums totalling £100m, to be paid as to £50m in 3 months and the remainder in a little over 1 year from judgment.
It is against that background that the parties argued about publication as follows:
H's submissions
i) The correct starting point is privacy. These are highly personal proceedings and there should be no publication of any part of them.
ii) Any publication will inevitably lead to identification. An anonymised and redacted judgment is not an option available in the present proceedings because identification would be inevitable by reason of H's business interests which are widely known.
iii) Whatever the nature of his business interests, H is not a public figure. He has never courted publicity and has always been a very private person.
iv) The fact that The Telegraph has taken the lead in publishing details of the finances of others, particularly MPs thought to have abused expenses, is immaterial. They were public figures said to be taking advantage of the public purse.
v) Although criticisms have been made in the judgment, to which I will return, there is no suggestion, as can be found in other cases where litigants have been identified, of the presentation of a perjured case or very serious litigation misconduct. In each case the extent of any wrongdoing has to be examined and there is no rule of general application.
vi) There are genuine concerns for other members of the family who are not parties to the proceedings but may be affected by the judgment, in particular the parties' daughter and, to a lesser extent, the wider Barclay family.
vii) There are aspects of the judgment which are highly personal, in particular matters relating to H's health.
W's submissions
H has been the subject of serious criticism in the judgment.
i) Whilst H may wish to maintain his privacy, W wishes to exercise her right of freedom of expression. Neither party's wish trumps that of the other. W does not wish to be silenced about the way that H has behaved before and during the litigation.
ii) H overstates the intrusion which he or members of the family will suffer by publication. There is no evidence that anyone other than H would be affected by full publication of the judgment (redacted only to remove reference to H's health issues). The fact that the Barclay family do not like their financial and tax affairs being discussed is immaterial. They are in the public eye and indeed H has initiated widely reported proceedings against his nephews in the Queen's Bench Division.
iii) The public have a right to know of the way that H has behaved, as set out in the judgment. His behaviour has removed his right to privacy.
The Media
I have received submissions both written and oral from Mr Browning (Bloomberg) and Mr Farmer (PA). They say that:
i) As a part owner of a newspaper, H is a public and political figure. Newspapers exercise a great influence on the public and set an agenda of what people are told. There is a public interest in knowing how H deals with others.
ii) To the extent that the judgment criticises H in respect of financial matters, it is important that the criticism is made public. This applies particularly in circumstances when The Telegraph has excoriated others in respect of the conduct of their own finances, whether MPs in respect of expenses claims or celebrities who have entered tax avoidance schemes.
iii) The evidence of the relationship between H and his twin brother and the evidence of the way that the parties conducted their lives financially are matters of general public interest.
iv) It is important that the whole of the judgment is published so that the public can understand how it is that the court has reached its conclusion as to the appropriate size of the award. It is only by knowing the whole context of the case that the award can be understood.
The wider family (The Interested Parties)
I heard counsel on behalf of Sir David's children. They are anxious about any publicity which impinges on their financial affairs. They have not seen the judgment but are anxious that because of the inter-relationship between the various family members through the trust structures that Sir Frederick and Sir David set up, their privacy may be invaded.
Discussion
The relevant legal principles are conveniently summarised by Baker J (as he then was), in XW v XH (No.2) [2018] EWFC 44 at [4]:
“(1) Open justice is a fundamental principle of our constitution. The general rule is that hearings are carried out, and judgments delivered, in public. This fundamental principle, set out by the House of Lords in Scott v Scott [1913] AC 417, has been reiterated on numerous occasions.
(2) There are, however, established exceptions to this general rule. Amongst those exceptions are proceedings in the family court. Such proceedings, including those concerning applications for financial remedies orders, are usually conducted in private: Family Procedure Rules (“FPR”) rule 27.10.
(3) The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings: Administration of Justice Act 1960, Clibbery v Allen [2002] Fam 261 paras 17 and 51; Norman v Norman [2017] EWCA Civ 49.
(4) In financial remedy proceedings, however, there is an obligation on the litigants to give full and frank disclosure of all relevant matters. The quid pro quo of this obligation is the confidentiality which attaches to all information disclosed within the proceedings. The party receiving the confidential information is subject to an implied undertaking not to use it for any purpose other than within the proceedings in which the information has been disclosed. “Information disclosed under the compulsion of ancillary relief proceedings is … protected by the implied undertaking before, during and after the proceedings are completed” (per Butler-Sloss P in Clibbery v Allen, supra, para 72).
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