Spencer v Spencer
| Jurisdiction | England & Wales |
| Judge | MR. JUSTICE MUNBY |
| Judgment Date | 23 June 2009 |
| Neutral Citation | [2009] EWHC 1529 (Fam) |
| Court | Family Division |
| Docket Number | Case No. FD06D04962 |
| Date | 23 June 2009 |
[2009] EWHC 1529 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mr. Justice Munby
(In Private Though in the Presence of Media Representatives)
Case No. FD06D04962
MR. L. MARKS QC, MS. C. COWTON and MS. M. FAGGIONATO (instructed by Manches) appeared on behalf of the Petitioner.
MR. N. MOSTYN QC and MISS E. CLARKE (instructed by Fladgate) appeared on behalf of the Respondent.
I have before me proceedings listed as FD06D04962. As the form of that number might suggest, they are ancillary relief proceedings. In fact, they are the final hearing of ancillary proceedings between Countess Spencer and Earl Spencer, a fact which is in the public domain, not least because of an article which appeared in the Daily Mail newspaper this morning setting out various pieces of information – none of which, so far as I can see, involved any breach of the law.
Unsurprisingly in the circumstances, the media are here. When the case was called on I was faced with an application, made jointly by Mr. Lewis Marks QC on behalf of the petitioner Countess and Mr. Nicholas Mostyn QC on behalf of the respondent Earl, for an order that I exclude the media from the hearing altogether.
The application is made in consequence of the recent dramatic change in the law brought about by the coming into force on 27 April 2009 of the Family Proceedings (Amendment) (No 2) Rules 2009, SI 2009/857. Those rules, in essence, did two things: First, they introduced into the Family Proceedings Rules 1991, SI 1991/1247, a new rule 10.28 dealing with what was referred to as “Attendance at private hearings”– in other words, dealing with the question of access to family proceedings. Second, they repealed rule 10.20A and substituted for it a new Part XI in the Family Proceedings Rules dealing with “Communication of information” but (and this is important to realise for present purposes) only in relation to “proceedings relating to children.” The Rules say nothing as to the reporting of proceedings.
The new rule 10.28 is general in its application, applying to all proceedings held “in private” in family courts, subject only to an exception set out in rule 10.28(1) which it is correctly common ground does not apply here. It is, accordingly, and correctly, common ground that rule 10.28 applies to the present proceedings. It is also common ground that the effect of rule 10.28(3)(f) is to permit “duly accredited representatives of news gathering and reporting organisations”– that is to say, those who are “duly accredited” in accordance with any administrative scheme for the time being approved for the purposes of this rule by the Lord Chancellor in accordance with rule 10.28(8) – to be present during the hearing unless the court exercises its power under rule 10.28(4).
Rule 10.28(4) provides as follows:
“At any stage of the proceedings the court may direct that persons within paragraph (3)(f) shall not attend the proceedings or any part of them, where satisfied that –
(a) this is necessary –
(i) in the interests of any child concerned in, or connected with, the proceedings;
(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
(iii) for the orderly conduct of the proceedings; or
(b) justice will otherwise be impeded or prejudiced.”
Rule 10.28(5) provides that, before exercising that power, the court must give any representative of the media who is in attendance an opportunity to make representations.
As I have mentioned, the new rules came into force on 27 April 2009. There were no transitional provisions. In my judgment, rule 10.28 applies to any proceedings, whether commenced before or after that date, and, indeed, applied to any hearing which on 27 April 2009 was part-heard. The fact that the proceedings in the present case began with the issue of the Countess' petition on 26 September 2006, shortly thereafter followed by her Form A on 2 November 2006, does not of itself exclude the rule. Nor has the contrary been argued either by Mr. Marks or by Mr. Mostyn.
Rule 10.28 is supported by, and to an extent elucidated in, the President's Practice Direction of 20 April 2009 “Attendance of Media Representatives at Hearings in Family Proceedings”. Paragraph 5.1 of that Practice Direction reads as follows:
“The rule anticipates and should be applied on the basis that media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (4) of the rule”.
Paragraph 5.2 of the Practice Direction indicates that, when considering the question of exclusion on any of the grounds set out in paragraph (4) of the rule, the court should:
“specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings.”
In other words, as the Practice Direction recognises, the power of the court under rule 10.28 is a power which can be exercised either as to the whole or as to any part or parts of the hearing. Paragraph 5.2 of the Practice Direction continues that, when considering the question of exclusion, the court should:
“consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (4)(a) of the rule”.
Given the way in which the submissions before me have developed, I need not read the rest of paragraph 5.2. Paragraph 5.3 of the Practice Direction indicates that the purpose of paragraph 4(a)(iii) of the rule is to enable the court “to address practical problems presented by media attendance”. No such practical problems have been suggested here, and I need say no more about that.
Central to the arguments before me is what is contained in paragraph 5.4 of the Practice Direction:
“Paragraph (4)(b) of the rule permits exclusion where, unless the media are excluded, justice will be impeded or prejudiced for some reason other than those set out in sub-paragraph (a). Reasons of administrative inconvenience are not sufficient. Examples of circumstances where the impact on justice of continued attendance might be sufficient to necessitate exclusion may include:
• a hearing relating to the parties' finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or
• any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.”
The absence of the qualifying words “other than a party” in the latter part of the second limb of paragraph 5.4 shows that the power to exclude the media where there is a “significant risk that a witness will not give full or frank evidence in the presence of media representatives” is a power which can, in appropriate circumstances, be exercised not merely in those cases where the witness in question is not a party but also where (as here) the witness in question is a party.
Two days later, on 22 April 2009, the President issued a document entitled “President's guidance in relation to applications consequent upon the attendance of the media in Family Proceedings”. Having identified, in paragraph 8 of that document, authorities which it was suggested provided useful summaries of the position relating to the publication of matters relating to proceedings in private, paragraph 9 noted that those decisions all concern the interests and welfare of children and that:
“the approach in ancillary relief proceedings (which are also likely to be productive of media applications) has not been the subject of similar judicial consideration and guidance”.
That is not altogether accurate, for it is correctly common ground before me that there is such authority, albeit that, so far as I am aware, the only authority which in modern times bears upon the question of access to, or reporting of, ancillary relief proceedings is Clibbery v Allan [2001] 2 FLR 819, on appeal [2002] EWCA Civ 45, [2002] Fam 261. So far as concerns ancillary relief proceedings, the only further assistance to be derived from the Guidance is in paragraph 18 which reads:
“So far as ancillary relief proceedings are concerned, policy, privacy and Convention issues may also arise for decision, albeit the interests of children may not be engaged.”
Appropriately, the argument before me has touched upon section 12 of the Administration of Justice Act 1960 (as amended), although, correctly, it is common ground that it has no application in the present case.
Section 12(1)(a)(iii) of the Act has the effect – I put the matter generally but sufficiently precisely for present purposes – that it is a contempt of court to publish “information relating to proceedings before any court sitting in private” where the proceedings “relate wholly or mainly to the maintenance or upbringing of a minor”.
Now one can conceive of circumstances in which an...
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Re Child X (Residence and Contact: Rights of Media Attendance: FPR Rule 10/284(4))
...witness will not give full or frank evidence in the presence of media representatives. 64 I note that Munby J in his recent decision in Spencer v Spencer No. FD06D04962, 23 June 2009, (an ancillary relief case not involving the welfare or interests of children), observed that, if a proper c......
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