XZ v YZ
| Jurisdiction | England & Wales |
| Judge | Mr Justice Mostyn |
| Judgment Date | 20 May 2022 |
| Neutral Citation | [2022] EWFC 49 |
| Court | Family Court |
| Docket Number | Case No: LV20D03547 |
[2022] EWFC 49
Mr Justice Mostyn
Case No: LV20D03547
IN THE FAMILY COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Simon Webster QC and Phillip Blatchly (instructed by Hall Brown) for the applicant
Jonathan Southgate QC and Petra Teacher (instructed by Rayden Solicitors) for the respondent
Hearing date: 20 May 2022
APPROVED JUDGMENT
As I sought to make clear most recently in my judgment in Xanthopoulos v Rakshina [2022] EWFC 30 at [125]:
“the law, when properly understood, permits information about financial remedy proceedings and judgments (in cases which are not mainly about child maintenance) to be published unless the court has made a specific order preventing publication”.
No doubt mindful of this statement, which follows similar statements in my judgments in BT v CU [2022] 1 WLR 1349, [2021] EWFC 87, A v M [2021] EWFC 89 and Aylward-Davies v Chesterman [2022] EWFC 4, the husband (“H”) applied in Form D11 for a Reporting Restriction Order (“RRO”) in advance of the final hearing concerning the application of the wife (“W”) for financial remedies. The RRO application was fixed to be heard on the first day in court of the final hearing which itself is listed for seven days.
I note at the outset that W is said by those representing H neither to oppose nor support the application.
Scope of the application
The scope of the application (which I note in passing does not seek to exclude any individual from the final hearing) is put differently between (i) the Form D11, (ii) written submissions entitled “legal basis to H's application for a reporting restriction order or anonymity”, and (iii) the draft order.
The D11 seeks either: (i) an RRO preventing the disclosure of any private and commercially sensitive material; or (ii) an anonymity order to prevent the identification of the parties to these proceedings, their children and H's business interests.
H's submissions, on the other hand, seek anonymisation of the judgment, or publication of the parties' names but restriction of reporting of their “private information”. While “private information” is not expressly defined in the written submissions, the term appears to be intended to cover information relating to the value to be ascribed to a business in respect of which H is a joint and equal shareholder.
The draft order itself is produced in terms which require anonymisation throughout the proceedings to the parties and prohibits reporting of any part of these proceedings which would: (a) identify the parties, the children, the children's school, the property where the children are living, or the companies in which H is a director; or (b) that would “disclose the facts and matters raised in court in these proceedings during the hearing before Mostyn J”. A caveat is added that the reporting restrictions shall apply “save to the extent that the information is already in the public domain”.
Legal framework for the application
As I concluded in Xanthopoulos (supra), in a financial remedy case:
“121. … anonymisation can only be imposed by the court making a specific anonymity order in the individual case. Such an order can only lawfully be made following the carrying out of the ultimate balancing test referred to by Lord Steyn in Re S. It cannot be made casually or off-the-cuff, and it certainly cannot be made systematically by a rubric. On the contrary, the default condition or starting point should be open justice, and open justice means that litigants should be named in any judgment, even if it is painful and humiliating for them, as Lord Atkinson recognised in Scott v Scott.”
The “ultimate balancing test” referred to by Lord Steyn in Re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, HL, in turn, refers to the balance to be struck between various rights in the ECHR, namely the privacy right in Article 8 on one hand, and the principle of open justice in Article 6 and the general Article 10 rights of the public at large (see also my judgment in Aylward-Davies v Chesterman [2022] EWFC 4 at [28]).
Decision
In conducting the balancing exercise envisaged in Re S, I must first understand the elements on both sides of the...
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