COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (Mr Justice Munby)
|Royal Courts of Justice|
London, WC2A 2LL
B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE KEENE
IVAN WILLIAM ALLAN
Appellant - and - GLORY ANNE CLIBBERY Respondent
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr J. Price QC and the Hon. A. Monson (instructed by Reynolds Porter Chamberlain for the Respondent)
AS APPROVED BY THE COURT
Crown Copyright ©
Dame Elizabeth Butler-Sloss, P. :
"in any way disclosing to any person save her legal advisers in these proceedings:
a) The text or a summary of the whole or any part of any affidavit, statement (whether or not sworn) or other document filed or disclosed in any proceedings
b) The text or a summary of the whole or any part of any oral evidence given by the parties or by any other witness in the ….proceedings
c) The text or a summary of the whole or any part of the judgment delivered by His Honour Judge Krikler on the 12th April 2001".
"As required by r 3.9(1) of the Family Proceedings Rules 1991, …..the proceedings before His Honour Judge Krikler were conducted and judgment was given in chambers. It is common ground that no application was made for the proceedings or any part of them to be heard otherwise than in chambers. Equally it is common ground that at no time was His Honour Judge Krikler asked to make any special direction as to the confidentiality of the proceedings before him, nor did he do so. In short, the proceedings were conducted in precisely the same way, and no doubt on the same assumptions by those involved as to the implications of the fact that they had been heard in chambers, as hundreds of similar cases are heard up and down the land every day, whether in the Family Division of the High Court or in county courts exercising family jurisdiction.
"Put very shortly - and expressed in somewhat general terms - the question which I have to consider can be summarised as follows: When proceedings in relation to money or property (as opposed to children) are heard in the Family Division in chambers, as they almost invariably are, is it, as the respondent would have it, unlawful and a contempt of court for one of the parties to make public disclosure of what has gone on in chambers? Or, as the applicant would have it, is such disclosure permissible in the absence of any lawfully imposed direction of the trial judge to the contrary?"
"Anyone with any experience of practice in this Division probably approaches the solution to the present problem with a number of more or less firmly rooted preconceptions and beliefs. However, and as I recently had occasion to point out in a not wholly dissimilar context, such assumptions, however inveterate and however distinguished those who hold them, can be a less than accurate guide to the true legal position: see Kelly v British Broadcasting Corporation  Fam 59,71B, 71H. Accordingly it is best to go back to basics."
"In my judgment Mr Monson is correct in his submission that no confidentiality attaches to proceedings, or to information conveyed in the course of proceedings, in the Family Division merely because those proceedings take place in chambers. He is correct in his submission that FPR rr 3.9(1),10.20 and 10.15 do not, either individually or together, create any general obligation of confidence in relation to proceedings in the Family Division heard in chambers. More specifically, having regard to the complaint made in the present case, he is correct in his submission that information which is not already inherently confidential does not become confidential merely because it is packaged in an affidavit sworn and filed in the Family Division.
Putting the matter the other way round, in the Family Division, as in the other divisions of the High Court, the starting point has to be the principles to be found in Scott v Scott  AC 417, Forbes v Smith  1 FLR 835 and Hodgson and Others v Imperial Tobacco Ltd and Others  1 WLR 1056. Restrictions on the use that can be made of information deployed in proceedings in the Family Division, and analogous obligations of confidentiality, are to be found, for example, in relation to children in s12(1)(a) of the 1960 Act, in relation to matrimonial and certain other classes of proceedings in s1(1)(b) of the 1926 Act and generally in relation to material obtained under compulsion in the operation of the implied undertaking. This list is not intended to be exhaustive. But none of these restrictions apply in the present case. Nor does any other restriction to which Mr Moylan has directed my attention."
i) A. Are proceedings held in chambers private in the sense that the public can properly be excluded?
ii) B. The issue on the appeal: in what circumstances are proceedings which are held in private, to be treated as in secret or confidential with the effect that there can be no subsequent publication of the documents, the oral evidence, the submissions, the judgment or any of them?
iii) C. If these proceedings can properly be treated as secret or confidential, and injunctions could therefore be granted, should they be granted in the present appeal to prohibit further publication?
Public or Private Hearing
"Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial." (Bentham)
Consequently, and I respectfully agree with the approach of Munby J, the exclusion of the public from proceedings has objectively to be justified. It is not good enough for it to be said that we have always done it this way so it has to be right. That principle of open justice applies to all courts and in principle the family courts are not excluded from it, although for good reasons which I shall set out later, many family cases, as Mr Price accepted, require confidentiality.
" Business in the High Court shall be heard and disposed of in court except in so far as it may, under this or any other Act, under rules of court or in accordance with the practice of the court, be dealt with in chambers."
" …. references to a court sitting in private include references to a court sitting in camera or in chambers."
That would appear also to be the case in adoption. In section 64 of the Adoption Act 1976 proceedings are held in private.
"proceedings under this Act -
a) in the High Court, may be disposed of in chambers;
b) in a county court, shall be heard and determined in camera;"
I am driven to recall Humpty Dumpty,
"When I use a word ------it means just what I choose it to mean - neither more nor less."
Civil proceedings held in private
"A chambers hearing is in private, in the sense that members of the public are not given admission as of right to the courtroom. Courts sit in chambers or in open court generally merely as a matter of administrative convenience. For example, in the Chancery Division the normal practice for urgent interlocutory cases is for the matters to be heard in open court, the application being made by way of motion. Corresponding applications in the Queen's Bench Division are normally made in chambers. There is no logic or reason as to why exactly the same sort of case in one Division should be in open court and, in another Division, in chambers.
Furthermore, until about ten years ago, appeals in the Chancery Division….were normally taken in open court. Now they are taken in chambers. The change was the result of an administrative decision, not a change in the law."
While respectfully agreeing with Jacob J. with respect to the administrative convenience of hearing civil matters in chambers, in my view the allocation of work to chambers in the family courts has a somewhat different basis.
"A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional circumstances recognised in Scott v Scott  AC 417 or the court sits in chambers and the case falls in the categories specified in s12(1) of the Act of 1960 (which include issues involving children, national security, secret processes and the like). Section 12(1) also refers to the court having prohibited publication. Such proceedings are appropriately described as secret; proceedings in chambers otherwise are not appropriately so described."
"However, it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings.
In relation to hearings in chambers the position may be summarised as follows:
(1) The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available, but if requested, permission should be granted to attend when and to the extent that this is practical. (2) What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested. (3) If members of the public who seek to attend cannot be accommodated, the judge should consider adjourning the proceedings in whole or in part into open court to the extent that this is practical or allowing one or more representatives of the press to attend the hearing in chambers.
(4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. (5) The position summarised above does not apply to the exceptional situations identified in s12(1) of the Act of 1960 or where the court, with the power to do so, orders otherwise."
"(1)The general rule is that a hearing is to be in public.
(3) A hearing, or any part of it, may be in private if-
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(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 patient;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person's estate; or
(g) the court considers this to be necessary, in the interests of justice.
(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness."
"Rule 39.2(3) sets out the type of proceedings which may be dealt with in private.
1.4 The decision as to whether to hold a hearing in public or in private must be made by the judge conducting the hearing having regard to any representations which may have been made to him.
1.4A The judge should also have regard to Article 6 (1) of the European Convention for Human Rights.
1.5 The hearings set out below shall in the first instance be listed by the court as hearings in private under rule 39.2(3), namely;"
“Nothing in this practice direction prevents a judge ordering that a hearing taking place in public shall continue in private or vice-versa.”
“1.9 If the court or judge's room in which the proceedings are taking place has a sign on the door indicating that the proceedings are private, members of the public who are not parties to the proceedings will not be admitted unless the court permits.”
Scott v Scott
"Subject to such rules and regulations as may be established as herein provided, the witnesses in all proceedings before the court where their attendance can be had shall be sworn and examined orally in open Court; Provided that parties, except as hereinafter provided, shall be at liberty to verify their respective cases in whole or in part by affidavit, but so that the deponent in every such affidavit shall, on the application of the opposite party or by direction of the Court, be subject to be cross-examined by or on behalf of the opposite party orally in open Court, and after such cross-examination may be re-examined orally in open Court as aforesaid by or on behalf of the party by whom such affidavit was filed."
“I think that the effect of s46 of the Divorce Act was substantially to put an end to the old procedure, and to enact that the new court was to conduct its business on the general principles as regards publicity which regulated the other Courts of justice in this country. These general principles are of much public importance, and I think that the power to make rules, conferred by ss 46 and 53, must be treated as given subject to their observance. They lay down that the administration of justice must so far as the trial of the case is concerned, with certain narrowly defined exceptions to which I will refer later on, be conducted in open Court. I think that s46 lays down this principle generally, and that s22 is, so far as publicity of hearing is concerned, to be read as making no exception in any class of suit or proceeding save in so far as ordinary Courts of justice might have power to make it.”
"Whatever may have been the power of the Ecclesiastical Courts, the power of an ordinary Court of justice to hear in private cannot rest merely on the discretion of the judge or on his individual view that it is desirable for the sake of public decency or morality that the hearing should take place in private. If there is to be any exception to the broad principle which requires the administration of justice to take place in open Court, that exception must be based on the application of some other and overriding principle which defines the field of exception and does not leave its limits to the individual discretion of the judge…. In proceedings, however, which, like those in the Matrimonial Court, affect status, the public has a general interest which the parties cannot exclude……."
"While the broad principle is that the Courts of this country must, as between parties, administer justice in public, this principle is subject to apparent exceptions, such as those to which I have referred. But the exceptions are themselves the outcome of a yet more fundamental principle that the chief object of Courts of justice must be to secure that justice is done. …… It may often be necessary, in order to attain its primary object, that the Court should exclude the public. The broad principle which ordinarily governs it therefore yields to the paramount duty, which is the care of the ward or the lunatic."
" where the effect of publicity would be to destroy the subject matter, [which] illustrates a class which stands on a different footing. There it may well be that justice could not be done at all if it had to be done in public. As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield."
"A mere desire to consider feelings of delicacy or to exclude from publicity details which it would be desirable not to publish is not, I repeat, enough as the law now stands. I think that to justify an order for hearing in camera it must be shewn that the paramount object of securing that justice is done would really be rendered doubtful of attainment if the order were not made. Whether this state of the law is satisfactory is a question not for a Court of justice but for the Legislature."
"The inveterate rule is that justice shall be administered in open Court. I do not speak of the parental jurisdiction regarding lunatics or wards of Court, or of what may be done in chambers, which is a distinct and by no means short subject, or of special statutory restrictions. I speak of the trial of actions including petitions for divorce or nullity in the High Court."
"It would be impossible to enumerate or anticipate all possible contingencies, but in all cases where the public has been excluded with admitted propriety the underlying principle, as it seems to me, is that the administration of justice would be rendered impracticable by their presence, whether because the case could not be effectively tried, or the parties entitled to justice would be reasonably deterred from seeking it at the hands of the Court."
" they appear to me to constitute a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security."
Current procedures in family proceedings
Subsection (3A) states
"Rules made under this section may make different provision for different cases or different areas, including different provision-
(a) for a specific court; or
(b) for specific proceedings, or a specific jurisdiction
specified in the rules."
"Rules made under this section may,…….
(a) modify or exclude the application of any provision of the County Court Act 1984; and
" The hearing or consideration shall, unless the court otherwise directs, take place in chambers."
Applications for ancillary relief are almost invariably heard in chambers.
" (7) Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers."
"An application for an occupation order or a non-molestation order under Part IV of the Family Law Act 1996 shall be dealt with in chambers unless the court otherwise directs."
This sub-rule is similar in its terms to the other proceedings heard in chambers under the 1991 Rules.
Conclusion on family proceedings heard in private
Publication of information relating to proceedings
"And what appears certain is that at common law the fact that a court sat wholly or partly in camera (and even where in such circumstances the court gave a direction prohibiting publication of information relating to what had been said or done behind closed doors) did not of itself and in every case necessarily mean that publication thereafter constituted contempt of court.
For that to arise something more than disobedience of the court's direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice either in the particular case in relation to which the prohibition was pronounced or in relation to cases which may be brought in the future."
"(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be a contempt of court except in the following cases, that is to say -
(a) where the proceedings -
(i) relate to the exercise of the inherent jurisdiction of the High Court with regard to minors;
(ii) are brought under the Children Act 1989; or
otherwise relate wholly or mainly to the maintenance or upbringing of a minor."
(b) where the proceedings are brought under Part VIII of the Mental Health Act 1959, or under any provision of that Act authorising an application or reference to be made to a Mental Health Review Tribunal or to a county court;
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.
(2) Without prejudice to the foregoing subsection, the publication of the text or a summary of the whole or part of an order made by a court sitting in private shall not of itself be contempt of court except where the court (having the power to do so) expressly prohibits the publication.
(3) In this section references to a court include references to a judge and to a tribunal and to any person exercising the functions of a court, a judge or tribunal; and references to a court sitting in private include references to a court sitting in camera or in chambers.
(4)Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section."
"(4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice."
There are situations outside the exceptions in section 12 which have been long recognised as requiring confidentiality. They are based upon the potential prejudice to the proper administration of justice. The best-known example is the implied undertaking in the compulsory disclosure of documents in proceedings. The importance of the implied undertaking has been accepted in decisions of the House of Lords and Court of Appeal.
"The memorandum was obtained by compulsion. Compulsion is an invasion of a private right to keep one's documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires. …….
In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed. They are not to be made a ground for comments in the newspapers, nor for bringing a libel action, or for any other alien purpose."
He then referred to Bray on Discovery and continued:
"Since that time such an undertaking has always been implied… A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose."
"…in my judgment the court has and should generally use the power to protect parties who make full and frank disclosure of documents, and the public interest in such disclosure, by discouraging the use by a plaintiff in a later action of a document obtained on discovery in an earlier action. If the court can require an undertaking from a plaintiff not to misuse a document before it is produced to him, it should have the power to restrain him from misusing it after it has been produced."
"Discovery constitutes a very serious invasion of the privacy and confidentiality of a litigant's affairs. It forms part of English legal procedure because the public interest in securing that justice is done between parties is considered to outweigh the private and public interest in the maintenance of confidentiality. But the process should not be allowed to place upon the litigant any harsher or more oppressive burden than is strictly required for the purpose of securing that justice is done………
The implied obligation not to make improper use of discovered documents is, however, independent of any obligation under the general law relating to confidentiality. It affords a particular protection accorded in the interests of the proper administration of justice. It is owed not to the owner of the documents but to the court, and the function of the court in seeing that the obligation is observed is directed to the maintenance of those interests, and not to the enforcement of the law relating to confidentiality."
"…….the implied undertaking applies not merely to the documents discovered themselves but also to information derived from those documents whether it be embodied in a copy or stored in the mind."
"In the case of information which has not been made public, ……….., the fact that publication may have been foreseeable as a possibility at the time when the documents were written does not mean that privacy and confidentiality should not be preserved so far as it is possible to do so. It is equally foreseeable that documents disclosed in civil discovery will be published in open court but that does not mean that there is no point in the court retaining control over the use of documents which have not been published or even, for some purposes, over those which have."
"It is also necessary for the proper administration of justice that parties should co-operate, in so far as they can, thereby avoiding repeated applications to the court."
"…..it is clear that there is no blanket restriction on the use of documents and information acquired in the course of litigation. Prima facie there is no restriction. The compulsion exception is confined to documents and information which a party is compelled, without any choice, to disclose. Where a party has a right to choose the extent to which he will adduce evidence or deploy other material, then there is no compulsion even though a consequence of such choice is that he will have to disclose material to other parties."
" Thus, on the one hand, service of a witness statements under the rule does not operate to waive the confidentiality of the statement or documents to which it refers until the statement has been put in evidence at the trial. On the other hand, once it is put in evidence, the confidentiality is lost and, in principle, the witness statement is available to the public for inspection and copying, subject only to the procedures."
Confidentiality of documents in the Family Division
"…..rests on a wider ground, namely, that public interest requires that a party, compelled by process of law to make what may be damaging disclosures for the purpose of a particular suit, should not thereby be at risk of their use for other purposes. It is a strong thing, though necessary for matrimonial litigation, to make a man disclose all the details of his means."
"In the present case it is necessary to weigh against one another not two competing interests, public or private, but two applications of the same public interest in different sets of proceedings."
He decided that the confidentiality afforded to disclosure of means made by a party under compulsion in matrimonial proceedings was a matter of great public importance which weighed more heavily than the giving of security for costs and refused the application.
Cases under Part IV Family Law Act 1996
" (6) In deciding whether to make an order under this section containing provision of the kind mentioned in subsection (3) or (4) and (if so) in what manner, the court shall have regard to all the circumstances including(
(a) the housing needs and housing resources of each of the parties and of any relevant child;
(b) the financial resources of each of the parties;
(c) the likely effect of any order, or of any decision by the court not to exercise its powers under subsection (3) or (4), on the health, safety or well-being of the parties and of any relevant child;
(d) the conduct of the parties in relation to each other and otherwise;
(e) the nature of the parties’ relationship;
(f) the length of time during which they have lived together as husband and wife;
(g) whether there are or have been any children who are children of both parties or for whom both parties have or have had parental responsibility;
(h) the length of time that has elapsed since the parties ceased to live together; and
(i) the existence of any pending proceedings between the parties(
(i) for an order under paragraph 1(2)(d) or (e) of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or
(ii) relating to the legal or beneficial ownership of the dwelling-house.”
Further relevant considerations are to be found in sections 36(7) and (8).
"In any case where a court (having power to do so) allows a name or other matter to be withheld from the public in proceedings before the court, the court may give such directions prohibiting the publication of that name or matter in connection with the proceedings as appear to the court to be necessary for the purpose for which it was so withheld."
The European Convention for Human Rights.
"….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that 'the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice'. Moreover, it is established in the Court's case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice…….."
The Human Rights Act and the European jurisprudence underline our own long-established principles of open justice which are entirely in conformity with the Convention and which our exceptions do not, in my judgment, breach.
The Historical Background
"We believe there is a need for rationalisation of the law and practice relating to access to and reporting of family proceedings to remove unnecessary complexity and inconsistency and to establish provisions which are as clear and simple as possible while retaining flexibility where necessary. However the current balance between openness and privacy seems to be generally accepted, and therefore we do not consider there is a need for change for its own sake."
"The position as regards reporting of family proceedings is, if anything, yet more complex than that relating to access. Again, there are different statutory provisions according to the type of case and level of court. There is widespread inconsistency, not only as to what details may be reported and those who are bound by the restrictions, but also as to the consequences when the restrictions are not observed. As with access, we believe there is a powerful case for rationalisation of reporting restrictions."
The Present Law
"For a husband in maintenance proceedings simply to wait and hope that certain questions may not be asked in cross examination is wholly wrong.
"It shall be the duty of the court in deciding whether to exercise its powers under any of sections 22A to 24A above and, if so, in what manner, to have regard to all the circumstances of the case ...."
"If the court decides to exercise any of its powers under any of sections 22A - 24A above in favour of a party to a marriage ...., it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon .... as the court considers just and reasonable."
"My Lords, the terms of section 25(1) of the Act of 1973 which I have set out above are, in my opinion, of crucial importance in relation to the questions raised by this appeal. The scheme which the legislature enacted by sections 23, 24 and 25 of the Act of 1973 was a scheme under which the court would be bound, before deciding whether to exercise its powers under sections 23 and 24, and, if so, in what manner, to have regard to all the circumstances of the case, including, inter alia, the particular matters specified in paragraphs (a) and (b) of section 25(1). It follows that, in proceedings in which parties invoke the exercise of the court’s powers under sections 23 and 24, they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by section 25(1)."
"It may be thought desirable to express the duty as an implied undertaking to the court. But whether it is so expressed or not, it is in my judgment a duty that is owed to the court and which can be enforced by the court .... Breach of the duty amounts to a contempt of court, which may be trivial or serious depending upon the circumstances. The court has the power wholly or partially to release the recipient from the duty, or undertaking, and to permit use to be made of the documents nevertheless."
"(b) in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation, or for restitution of conjugal rights, ...."
"In deciding whether to make an order under this section .... and (if so) in what manner, the court shall have regard to all the circumstances including - "
"(b) The financial resources of each of the parties.
"The home in which they lived together as husband and wife or a home in which they at any time so lived together or intended so to live together."