Nicole Appleton (Petitioner) v Liam Gallagher News Group Newspapers Ltd and Another (Interested parties)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 28 September 2015 |
| Neutral Citation | [2015] EWHC 2689 (Fam) |
| Docket Number | Case No: FD13D04383 |
| Court | Family Division |
| Date | 28 September 2015 |
[2015] EWHC 2689 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Mostyn
Case No: FD13D04383
and
Patrick Chamberlayne QC (instructed by Sears Tooth) for the Petitioner and (in effect) for the Respondent
Jacob Dean (instructed by NGN Legal) for the First Interested Party
Brian Farmer lay representative for the Second Interested Party
Hearing date: 22 September 2015
On Tuesday 15 September 2015 I made an order restricting the reporting by the press of the ancillary relief proceedings between Nicole Appleton and Liam Gallagher. My order was in the same terms as that made by me in the case of DL v SL [2015] EWHC 2621 (Fam), save that I allowed the fact that the parties were engaged in those proceedings to be made public. I also made clear that the press could photograph them arriving and leaving court. My order provided that I would reconsider the matter on Tuesday 22 September 2015, which I duly did. On that occasion I heard detailed submissions from Mr Patrick Chamberlayne QC (in effect representing the interests of both of the parties) and from Mr Jacob Dean representing NGN, the publishers of the Sun newspaper. I also heard from Mr Brian Farmer of the Press Association.
The matter came before me in the following circumstances. On Monday 14 September 2015 I was contacted by Judge O'Dwyer who was about to embark on the ancillary relief hearing at the Central Family Court and who had been presented with a joint application by the parties for exclusion of the press pursuant to FPR 27.11(3). The terms of that rule and of PD27B make clear that the power to exclude is vested in the court of trial. However PD27B para 5.2(b) obliges the court to consider lesser measures such as a reporting restriction order before making an exclusion order. PD12I states that only the High Court can make orders restricting the publication of information about children or incapacitated adults. In this case the parties have a child, and Liam Gallagher has three other children, and any reporting restriction order would cover details about them, although its scope would be wider than that and would focus mainly on adult matters. In such circumstances Judge O'Dwyer wondered if only the High Court could make a reporting restriction order in this case, and it was thus that the matter came before me on Tuesday 15 September 2015. There was insufficient time to consider the arguments which Mr Dean wished to advance and I therefore made a holding order until I could reconsider the matter.
The parties returned to Judge O'Dwyer's court and between Wednesday 16 September and Friday 19 September 2015 the case was heard in private but in the presence of a number of members of the press. Judge O'Dwyer has reserved judgment.
It is my clear opinion that the court of trial has full power to make a reporting restriction order in proceedings which are not "children proceedings" within the terms of FPR25.2(1). The only financial remedy proceedings which qualify as children proceedings are those which relate "wholly or mainly to the maintenance or upbringing of a minor". Children proceedings fall squarely within PD12I and so any reporting restriction order in such proceedings can only be made by the High Court. Otherwise, so it seems to me, the court of trial is fully vested with the power to control the reporting of the proceedings before it. It would be strange, to say the least, if the court of trial could exercise the power to exclude the press, and to decide whether to anonymise or redact its judgment, but not to control what could be reported about the case as it proceeded. Plainly, should the court of trial be minded to make a reporting restriction order the notice procedure in PD12I should be followed to the letter.
All I am being asked to decide today is whether the existing order, which restricts the reporting of the proceedings, should be lifted, or modified, at this point. I am not being asked to decide whether Judge O'Dwyer should publish his judgment or, if he does, whether it should be anonymised or redacted, and if so, how. That is matter solely for him. It is highly important that I should exercise my powers very carefully and cautiously so as not to pre-empt his decision about publication, anonymisation or redaction of his judgment. I should also make clear that it will be for him, in the light of his decision about what to do with the judgment, to revisit the reporting restriction order which I will now make.
This judgment follows hard on the heels of my judgment in the case of DL v SL. To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement. The chaotic state of the law has been fully set out by me in W v M (TOLATA proceedings: anonymity) [2012] EWHC 1679 (Fam) and by Roberts J in Cooper-Hohn v. Hohn [2014] EWHC 2314 (Fam).
At the risk of repeating what I and Roberts J have said about the history it is worth recalling what the position was before the rule change on 27 April 2009. Proceedings for ancillary relief were heard in chambers and no-one apart from the parties or their representatives could attend. In Clibbery v Allan (No 2) [2002] EWCA Civ 45, [2002] 1 FLR 565 Thorpe LJ stated at para 90 that "it was never doubted that publication of such private proceedings was prohibited". At para 93 he continued:
"It therefore seems to me that Parliament has been sparse in its contribution to unravelling the question of what, if anything, may be extracted from family proceedings in private for subsequent publication. That may be because there seemed to be little need for Parliament to legislate. In the family justice system the designation 'in chambers' has always been accepted to mean strictly private. Judges, practitioners and court staff are vigilant to ensure that no one crosses the threshold of the court who has not got a direct involvement in the business of the day. … This strict boundary has always been scrupulously observed by the press. Of course the judge always retains a residual discretion and, accordingly, a hearing in chambers may culminate in a judgment in open court. Alternatively the judge may make an abbreviated statement in order that the public interest in the proceedings may be at least partially satisfied."
In Clibbery v Allan the Court of Appeal provided the rationale for this long-accepted prohibition on publication of private ancillary relief proceedings held in chambers. It was not based on the terms of the Judicial Proceedings (Regulation of Reports) Act 1926. Rather, it concentrated on the very fierce demands made of the parties by the process. There is an absolute duty of full frank and clear disclosure. The court exercises an inquisitorial function. The information provided by the parties is made under compulsion and extends to all aspects of their economic existence, past, present and future. The scope of disclosure is far wider than in a civil dispute. There the disclosure will only be of those particular documents which relate to the subject matter of the dispute. In contrast, in ancillary relief proceedings you basically have to disclose everything about your economic life.
Information compulsorily extracted by one party from the other is subject to an implied undertaking that it will not be published or used for any purpose other than the proceedings. Although section 12 of the Administration of Justice Act 1960 does not prohibit the reporting of proceedings held in private per se (unless they wholly or mainly concern children) the existence of the implied undertaking in relation to confidential information compulsorily extracted has the same effect. If a party were to walk out of court and tell the press what the other had said in the witness box then he or she would be in contempt; and, if the press were to publish it, they would be equally guilty by their complicity. Thus Dame Elizabeth Butler-Sloss P stated at para 72:
"It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed."
The President was clear as to the collateral effect of the undertaking. At para 75 she stated: "I am satisfied that all cases involving issues of ancillary relief are also protected from publication by anyone without the leave of the court." At para 106 Thorpe LJ said:
"in the important area of ancillary relief … all the evidence (whether written, oral or disclosed documents) and all the pronouncements of the court are prohibited from reporting and from ulterior use unless derived from any part of the proceedings conducted in open court or otherwise released by the judge."
That judgment has stood for 13 1/2 years. Yet Mr Dean in effect asks me to depart from it. That would be very bold, even if I disagreed with it, which I do not.
It is quite clear to me that the rule change which came into effect on 27 April 2009 was not intended to abrogate this core privacy provided by the implied undertaking and the hearing of the proceedings in chambers. That rule change was to enable the world to understand how children proceedings, especially public law care proceedings, were conducted. This is clear from the White Paper Family Justice in View (Cm 7502) of 16 December 2008, which actually announced an intention to pass...
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