XW v XH
| Jurisdiction | England & Wales |
| Judge | Lady Justice King,Lord Justice Moylan,Lord Justice Underhill |
| Judgment Date | 02 April 2019 |
| Neutral Citation | [2019] EWCA Civ 549 |
| Docket Number | Case No: B6/2018/0380 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2019 |
[2019] EWCA Civ 549
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE FAMILY DIVISION
ROYAL COURTS OF JUSTICE
Mr Justice Baker
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Underhill
(VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION)
Lady Justice King
and
Lord Justice Moylan
Case No: B6/2018/0380
Desmond Browne QC, Lucy Stone QC, Adam Wolanski and Duncan Brooks (instructed by Stewarts) for the Appellant
Martin Pointer QC, Rebecca Carew Pole and Georgina Howitt (instructed by Sears Tooth Solicitors) for the Respondent
Hearing date: 6th March 2019
Approved Judgment (Reporting Restrictions Order)
This is an application for a reporting restrictions order made on behalf of the Appellant (“the wife”) in advance of the hearing of her appeal in financial remedy proceedings due to take place later in the year.
On 19 June 2018, at the conclusion of the trial resulting in the order from which the wife now appeals, Baker J (as he then was), in order to prevent the ‘jigsaw identification’ of the parties' son (“AB”), made a reporting restrictions order, anonymising names of various protagonists and redacting parts of his judgment.
By this application, the wife seeks an order which will ensure that the hearing of the substantive appeal proceeds with similar safeguards designed to protect the identity of AB. The Respondent (“the husband”) whilst initially opposed to the making of the order, revised his position during the course of argument and now supports the application of the wife.
The Law
Applications for reporting restrictions orders in financial remedy cases have different starting points depending upon whether the hearing is in the Family Court or the High Court at first instance, or on appeal to the Court of Appeal.
At first instance, pursuant to Family Procedure Rules 2010 r.27.10 (FPR) cases are heard in private, although accredited members of the press have the right to attend such hearings (FPR r.27.11(2)(f)). By contrast, on an appeal to the Court of Appeal, the general rule in respect of all appeals, regardless of the subject matter, is that they are heard in public ( CPR 39.2(1)).
There are, however, exceptions to that general rule. By CPR 39.2(3), the exceptions include that a hearing or any part of it may be in private if:
“c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
d) a private hearing is necessary to protect the interests of any child or any party.”
Whilst it is common ground between the parties that a reporting restrictions order is necessary in order to protect the interests of their son, the court must, nevertheless, before making such an order, consider the application against the backdrop of the established law and, specifically in relation to an application in this court, of the test recently set out by the Court of Appeal in Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523 (“ Norman”).
It follows that the court must, and I do, have in mind the principles identified by Lord Neuberger in H v News Group Newspapers Ltd: Practice Note [2011] EWCA Civ 42, [2011] 1 WLR 1645 which apply to all such applications:
“21. In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:
(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.
(2) There is no general exception for cases where private matters are in issue.
(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.
(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.
(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.
(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.
(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.
(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.
(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.
(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one”.
In Norman, Gloster LJ emphasised the necessity for proper procedure to be respected; this means that a formal application with supporting evidence is necessary and must be served on the media via the Press Association's CopyDirect service. (See the headnote of Norman at Per curiam).
It is important to note that an exception is made to this general requirement where the parties agree to the making of what is a fairly routine order, namely the anonymisation of the names and dates of birth of any minor children together with other identified personal information such as the names of their schools. In my judgment, the anonymisation of the children's names in this court is rightly commonplace. The names of children are of absolutely no public interest and in my view, save in exceptional circumstances, children should routinely be granted this limited protection from any public spotlight which may be trained upon their parents' financial affairs.
The question then is when should the court go further and, either, pursuant to CPR 39.2(3), order a hearing to be heard in private, or, rather less drastically, order a public hearing but with substantial anonymisation and redaction of the resulting judgment supported by a reporting restrictions order?
Gloster LJ emphasised the importance of open justice in the context of appeals saying:
“[56] The principle of open justice and its importance has been consistently and repeatedly emphasised by the courts in the context of applications for private hearings, anonymisation and injunctions restraining publication. Only exceptional circumstances justify the departure from the normal principle.”
On the facts in Norman, the court concluded that the interest in reporting the proceedings outweighed such Article 8 rights as the wife in that case may have had to privacy and confidentiality. Gloster LJ said at [76]:
“(iii) As the authorities which I have referred to above make clear, there is a strong and well-established public interest in reporting court proceedings. The correlative obligation of the litigant's right to a public hearing under article 6 must be that the litigant, save in circumstances where his article 8 rights clearly outweigh the public interest in reporting, has to accept the reality that information relating to his private affairs will be in the public domain, as a result of his claim.”
Lewison LJ in his judgment in Norman, emphasised the differences between financial remedy proceedings at first instance and proceedings in the Court of Appeal:
“[83] (i) The fact that a judge at first instance has made or has refused to make an order for anonymity does not bind the Court of Appeal or determine how the appeal will be heard, although the Court of Appeal will pay close attention to the judge's decision: Pink Floyd Music Ltd v EMI Records Ltd [2010] EWCA Civ 1429, [2011] 1 WLR 770 at [67].
ii) At first instance proceedings are governed by the Family Procedure Rules, whereas in the Court of Appeal proceedings are governed by the CPR. The starting point under the FPR is that ancillary relief proceedings are heard in private. The starting point under the CPR is that proceedings are heard in public. The Court of Appeal does, however, have the power to sit in private, both under the CPR and under the Domestic and Appellate Proceedings (Restriction of Publicity Act 1968).
iii) Decisions of the Court of Appeal are likely to have wider impact that decisions at first instance and are therefore inherently more likely to raise matters of public interest.
iv) Except in rare cases, the Court of Appeal proceeds on the basis of the facts as found by the judge. At first instance the parties may adduce a mound of evidence, some of which may be hotly...
To continue reading
Request your trial