Watchdog or wolf in sheep’s clothing?

Posted: 10/11/2015

• Family courts in turmoil over publicity and the press in private family law proceedings;
• High Court judge comes out strongly against the practice of listing final financial remedy proceedings in public in DL v SL [2015] EWHC 2621 and protects Gallagher and Appleton from prying media. 

Turmoil

There is currently turmoil in the family courts as far as the issue of publicity and the press in private family law proceedings is concerned, specifically financial remedy proceedings. A careful balancing exercise must be drawn between the right to privacy (in line with Article 8 of the Human Rights Act 1988) and open justice (in line with the right to freedom of expression under Article 10) whilst understanding the need for transparency. 

Prior to 2009, financial remedy hearings were held in private and only the parties or their representatives were allowed to attend. However, in April 2009, legislation introduced new rules which are set out in the Family Procedure Rules 2010. Rule 27.11 allows for accredited media representatives (but not members of the general public) to attend specified family proceedings, albeit the court has the power to direct their exclusion and anyone entitled to be present at the hearing may request their exclusion. 

The change was largely brought about by pleas from the media and others for greater transparency in the family courts, the intention being that the press would serve as a “watchdog” for the public to help it understand how family law proceedings are conducted. 

Chasing ’stories’ of limited legal merit

In reality, most family law cases are of limited or no interest to the media unless they have a celebrity factor, a salacious element and/ or involve parties with significant wealth. As per Mostyn J in the case of DL v SL [2015] EWHC 2621 “the question of whether a party’s private affairs should be laid bare in the national press should not depend on whether the report of the case is thereby more newsworthy and therefore likely to gain a higher circulation for the publisher”.  

Preservation of privacy

In DL v SL, Mostyn J argued the case for the preservation of privacy and indicated that there were some types of case where the right to privacy would almost always trump the right to freedom of expression. He highlighted that financial remedy proceedings are quintessentially private business and protected by the anonymity principle unless the facts demonstrated disgraceful conduct or were so striking that anonymisation was impossible (such as the striking facts in McCartney v McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 1508)).  

He supported his assertions with the following evidence: 

• Parliament has provided (via rule 27.10 of the Family Procedure Rules 2010) that proceedings are usually heard in private. The fact that the media could attend pursuant to rule 27.11 did not alter this fact;
• Financial remedy proceedings between divorcing couples are subject to a far wider scope of disclosure than in a civil dispute. Stringent demands are placed on them by the process and they must disclose everything about their economic lives (past, present and future). There is an implied undertaking that information extracted by one party from the other will not be published or used for any purpose other than the proceedings (see Clibbery v Allan (No 2) [2002] EWCA Civ 45, [2002] 1 FLR 565) and Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427. Therefore the media may not report any such information without leave; 
• Article 14 of the International Covenant on Civil and Political Rights 1966 created a presumption that judgments are not required to be public where the proceedings concern matrimonial disputes; and
• The Judicial Proceedings (Regulation of Reports) Act 1926 applied to financial remedy proceedings as well as to the suit for divorce, Clibbery v Allan [2001] 2 F.L.R. 819 applied. 

The popstars and the wolf in sheep’s clothing

In the even more recent case of Appleton & Gallagher v News Group Newspapers and PA [2015] EWHC 2689 (Fam), Liam Gallagher and Nicole Appleton sought (under rule 27.11 referred to above) to exclude the press from the financial remedy proceedings between them. Gallagher and Appleton married in 2008 after an eight year relationship and having had a child together. Although they officially divorced last year, a financial settlement between them has not yet been reached. 

Before making an order excluding the press, the court at first instance was required by law to consider lesser measures, such as a reporting restriction which it duly made against News Group Newspapers (publisher of The Sun) and the Press Association preventing them from: 

• publishing any report of the case that identified any person involved in it other than the lawyers, save that it could be reported that the parties were engaged in financial remedy proceedings;
• referring to any of the parties’ financial information save to the extent that any such information was already in the public domain. 

News Group Newspapers applied to the court for the restriction to be lifted or modified on the basis that the change to the Family Procedure Rules revoked the core privacy provided by the implied undertaking.  

The matter came before Mostyn J in the High Court on 22 September 2015 who refused News Group Newspapers’ application using much of the reasoning set out in his judgment in DL v SL. Notably in DL v SL he stated that “reporting how a case is conducted, and what legal points are raised, in an abstract way is one thing; laying bare the intimate details of the parties’ private lives is altogether another”. 

A mess

As Mostyn J puts it, “to say that the law about the ability of the press to report ancillary relief [financial remedy] proceedings which they are allowed to observe is a mess would be a serious understatement”.  

The family courts are in turmoil over this issue because on the other side of this debate sit Sir James Munby (President of the Family Division) and Holman J. Their approach is that there should be no reporting restrictions placed on the media at the outset and champions transparency. Holman J routinely lists final hearings in public, holding in Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 F.L.R. 168 that rule 27.10 does not create a presumption that proceedings should be heard in private. 

Holman J remarked recently in Mackay v Mackay [2015] EWHC 2860 (Fam) that he is known at the Bar for being a judge who “favours as much openness as possible in all court proceedings”. In Mackay, the husband sought orders that forthcoming hearings in the case should be heard not only in private, but with the press and media excluded. The husband’s barrister (perhaps aware of his views on privacy) brought to Holman J’s attention a social connection between the husband and him in case it impacted on the appropriateness of him dealing with the case.  

Although the social connection was arguably very tenuous, Holman J recused himself on the basis that he might feel personally embarrassed in hearing the case as per the leading authority of Locabail (UK) Limited v Bayfield Properties Limited and others [1999] EWCA Civ 3004. The wife’s barrister speculated that the husband’s actions may have been a device deliberately aimed at this eventuality given Holman J’s approval of openness, as opposed to secrecy, in legal proceedings.  

It would therefore appear that the “mess” referred to by Mostyn J could lead to an element of “forum shopping” by litigants and their legal teams in order to secure (or oust) a judge depending on the circumstances of their case. 

In Appleton & Gallagher v News Group Newspapers and PA, Mostyn J was of the view that there are at least two situations where the balancing exercise between open justice and privacy would lead to a judgment being fully public. These were:

• where there has been proof of iniquity;
• where it is necessary to correct false impressions and misconceived facts (such as in McCartney which involved a great deal of speculative reporting) on the basis that the court’s silence would only promote further speculation and adverse comment that would damage not only the interests of those involved, but also the family justice system. 

He added that it was not impossible “to conceive of a case where the balancing exercise would lead to the proceedings being allowed to be published as they went along and in advance of the judgment”. For example, if both parties had played out their matrimonial collapse through the press to such an extent that it could be said that they had waived their right to privacy.

Watchdog

Mosytn J has acknowledged the importance of the press as a watchdog to support the principle of “open, public and fully reportable justice” and no doubt the media will continue to play a crucial role in promoting an understanding of and respect for the rule of law in family cases.  

However, having (at its behest) been entrusted by the legal system with this role, the media has a responsibility to the public and to all those in favour of transparency to educate as intended and not to seek to breach the privacy of individuals for commercial gain. This is particularly so given that approximately one fifth of court funding is met by the taxpayer and that for most people judicial time and attention is limited due to an already overstretched system.  

Notably, the House of Commons recently published a paper on confidentiality and openness in the family courts.  It is probable that much debate will ensue in this regard in the near future.  

Interestingly Mostyn J granted News Group Newspapers permission to appeal the ruling in the Appleton and Gallagher case.  It also seems that he has invited the Court of Appeal to determine the issue once and for all by stating: “The present divergence of approach in the family division is very unhelpful and makes the task of advising litigants very difficult…. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated.”

Whether Mostyn J’s judgments are appealed or not, it seems likely the issues raised will continue to preoccupy the family courts for some time. The sheep may seem safe for now but we can only watch this space. 

This article was published in New Law Journal in October 2015.

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