Strand, London, WC2A 2LL
B e f o r e :
| Brid Angela Gallagher
|- and -
|Donal John Gallagher
Jonathan Southgate QC and Petra Teacher (instructed by Rayden Solicitors) for the applicant (the respondent to the husband's application) ("the wife")
Brian Farmer addressed the court on behalf of the Press Association
Hearing dates: 21, 23, 25, 27 May 2022
Crown Copyright ©
This judgment was delivered in private. The judge hereby gives permission – if permission is needed – for it to be published. It should be reported as Gallagher v Gallagher (No.1) (Reporting Restrictions)  EWFC 52
The judge has made a reporting restriction order which provides that in no report of, or commentary on, the proceedings or this judgment may the children be named or their schools or address identified. It further provides that certain financial matters may not be reported. Failure to comply with that order will be a contempt of court.
Mr Justice Mostyn:
i) Article 8 of the ECHR is engaged by a report of information disclosed in financial remedy proceedings, obtained under compulsion.
ii) A significant proportion of the final hearing focussed on the valuation of a construction business in which the husband is a joint and equal shareholder. Dissemination of information regarding that business "could sour existing relationships and enable his competitors, all of whom bid and compete for the same work, to obtain a significant advantage".
iii) Reporting of that business information would affect the commercial interests of third parties including, principally, the husband's business partner.
iv) Aspects of the husband's evidence and his approach to the prospective liability arising from an Irish lawsuit against him could be exploited and used for collateral purposes and prejudice his position in those proceedings. The nature of the allegations could expose the husband to criminal sanction, including imprisonment.
v) Most of the evidence filed by the parties was done so with a reasonable expectation that their anonymity would be preserved, with steps including the reply phase completed in January/February 2021, prior to the court's analysis in BT v CU  EWFC 87 on 1 November 2021.
i) From the very start of the era of judicial divorce, proceedings had to be conducted either in open court or in chambers "as if sitting in open court". There was not the slightest hint that matrimonial proceedings would be secret save in nullity cases alleging incapacity or where the ends of justice might be defeated. The decision of the House of Lords in Scott v Scott  AC 417 definitively established that the Divorce Court was governed by the same principles in respect of publicity as other courts.
ii) By FPR 27.10 and 27.11, financial remedy proceedings are heard "in private". The correct interpretation of these rules, in the light of Scott v Scott, is that they do no more than to provide for partial privacy at the hearing. They prevent most members of the general public from physically watching the case. Those rules do not impose secrecy as to the facts of the case.
iii) There is nothing in the various iterations of the Divorce Rules, Matrimonial Causes Rules, Family Procedure Rules or RSC Order 32 r. 11 supporting a view that proceedings heard in the Judge's or Registrar's chambers were secret. A chambers' judgment is not secret and is publishable. Furthermore, the change of language in the FPR 2010 from "in chambers" to "in private" did not presage that ancillary relief proceedings should become more secret.
iv) By FPR 27.11, journalists and bloggers can attend a financial remedy hearing. If the case does not relate wholly or mainly to child maintenance, and in the absence of a valid reporting restriction or anonymity order, they can report anything they see or hear at the hearing. That some of the material under discussion would have been disclosed compulsorily does not constrain their right to report the hearing. The power under FPR 27.11(3)(b) to exclude a journalist or blogger to prevent justice being impeded or prejudiced confirms the unrestricted reportability of the hearing.
v) In the absence of a valid reporting restriction order the parties can talk to whomsoever they like about a financial remedy hearing, including giving an interview to the press. But they are bound by the implied undertaking not to make ulterior use of documents compulsorily disclosed by their opponents. This means that they cannot show such documents to a journalist unless that journalist was covering the case.
vi) The standard rubric on financial remedy judgments providing for anonymity cannot prevent full reporting of the proceedings or the judgment. This is because it is not a reporting restriction injunction, not merely because none of the procedures for making such an order have been complied with, but because it manifestly is not an injunction. It is not an anonymity order under CPR 39.2(4), not merely because no process for making such an order was followed, but more fundamentally because it is not such an order. Such an anonymity order can only be made exceptionally. The general rule is that the names of the parties to an action are included in orders and judgments of the court. There is no general exception for cases where private matters are in issue. 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 and, indeed of the parties.
vii) The court can only prevent reporting of a financial remedy hearing or judgment, or order that the identity of the parties be obscured by anonymisation, by making a specific order to that effect following an intensely focussed fact-specific Re S exercise of balancing the Art 6, 8 and 10 rights.
viii) The Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings.
"The family courts must be more transparent and there is no good basis for making an exception of financial cases. Such cases are heard in public on appeal to the Court of Appeal and the Supreme Court, and the law reports and press reporting are riddled with considerable intimate and financial detail of many financial cases on appeal. Accredited journalists are, in any event, entitled to be present even when the court is sitting in private, subject to strict and limited exceptions. To permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency."
"I do not recollect to have met with any of the European laws with any injunction that all courts should be held ostiis apertis, except in those of the republic of Lucca".
"In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice."
"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."
"The security of securities is publicity."
These apothegms were cited by Lord Shaw of Dunfermline in Scott v Scott.
"Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise."
"at the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts."
The pre-eminence of the common law rule
"Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? ... In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse."
"With only a few exceptions, our courts sit in public, not only that justice be done but that justice may be seen to be done."
iii) Simler J in Fallows v News Group Newspapers Ltd  ICR 801, at [48(iii)]:
"The open justice principle is grounded in the public interest, irrespective of any particular public interest the facts of the case give rise to. It is no answer therefore for a party seeking restrictions on publication in an employment case to contend that the employment tribunal proceedings are essentially private and of no public interest accordingly."
"It has been recognised for many years that press reporting of legal proceedings is an extension of the concept of open justice, and is inseparable from it. In reporting what has been said and done at a public trial, the media serve as the eyes and ears of a wider public which would be absolutely entitled to attend but for purely practical reasons cannot do so."
v) Dame Victoria Sharp PQBD in Griffiths v Tickle & Ors  EWCA Civ 1882 at :
"But the firmly established starting point in the domestic jurisprudence is the principle of open justice. The general rule is that proceedings are held in public and what is said, including the names of the parties and witnesses, can be observed and reported. In a case which involves the "determination" of criminal liability or civil rights and obligations, Article 6 confers on each party to litigation the right to a public hearing and a public judgment."
The European Convention on Human Rights
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of 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."
At first the convention had only treaty status in the UK although in 1966 individuals were given the right to make a personal complaint to the Strasbourg court. The convention was incorporated into domestic law by the Human Rights Act 1998. When passing the 1998 Act Parliament inserted s. 12(4) which requires the court to have "particular regard to the importance of the [Article 10] right to freedom of expression."
"The Court recalls that Art 6(1) of the Convention provides that, in the determination of civil rights and obligations, 'everyone is entitled to a fair and public hearing'. The public character of proceedings protects litigants against the administration of justice in secret with no public scrutiny; it is also one of the means whereby confidence in the courts can be maintained. By rendering the administration of justice visible, publicity contributes to the achievement of the aim of Art 6(1), a fair hearing, the guarantee of which is one of the foundations of a democratic society (see Sutter v Switzerland (1984) 6 EHRR 272, para 26)."
(See also Pretto v Italy  ECHR 15 at  to the same effect).
"…the English procedural law can therefore be seen as a specific reflection of the general exceptions provided for by Art 6(1)."
"The legal historian may quibble with the assertion that English procedural law in this respect reflects Article 6 - more correctly, it might be thought, Article 6 in this respect reflects the English common law enshrined in Scott v Scott - but the key point remains. In this respect, English procedural law and the Convention march hand-in-hand."
In my judgment it is of great importance to keep in mind that the English procedural common law as enshrined in Scott v Scott and Article 6.1 of the Convention "march hand-in-hand". What this means is that the principles to be applied under each regime are the same.
Derogation from the rule
"The right of the citizen and the working of the Constitution in the sense which I have described have upon the whole since the fall of the Stuart dynasty received from the judiciary - and they appear to me still to demand of it - a constant and most watchful respect. There is no greater danger of usurpation than that which proceeds little by little, under cover of rules of procedure, and at the instance of judges themselves. I must say frankly that I think these encroachments have taken place by way of judicial procedure in such a way as, insensibly at first, but now culminating in this decision most sensibly, to impair the rights, safety, and freedom of the citizen and the open administration of the law."
"Here a comment in the judgment of Sir Christopher Staughton in Ex parte P., The Times, 31 March 1998, is relevant. In his judgment, Sir Christopher Staughton states: "When both sides agreed that information should be kept from the public that was when the court had to be most vigilant." The need to be vigilant arises from the natural tendency for the general principle to be eroded and for exceptions to grow by accretion as the exceptions are applied by analogy to existing cases. This is the reason it is so important not to forget why proceedings are required to be subjected to the full glare of a public hearing. It is necessary because the public nature of proceedings deters inappropriate behaviour on the part of the court. It also maintains the public's confidence in the administration of justice. It enables the public to know that justice is being administered impartially. It can result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with one or more of the parties' or witnesses' identity concealed. It makes uninformed and inaccurate comment about the proceedings less likely. If secrecy is restricted to those situations where justice would be frustrated if the cloak of anonymity is not provided, this reduces the risk of the sanction of contempt having to be invoked, with the expense and the interference with the administration of justice which this can involve.
Any interference with the public nature of court proceedings is therefore to be avoided unless justice requires it. However Parliament has recognised there are situations where interference is necessary."
" The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification. The category of exception that is relevant here is the need to protect private and family life rights, including in particular the rights of children. This was to the fore in Re S, where a mother was charged with the murder of one of her children. S, aged 5, was the brother of the deceased. The Guardian of S, concerned that reporting of the criminal trial would be seriously detrimental to S's welfare, sought an order for the mother and both children to be anonymised in any such reporting. The application was ultimately refused by the High Court, and appeals were dismissed by this Court and the House of Lords." (emphasis added)
"She has a right under Article 10 to her own freedom of expression, and this includes the right to speak to whomsoever she pleases about her experiences. That Article 10 right would normally be very significantly interfered with by the privacy requirements of the Family Courts, but this would generally be justified under Article 10(2) by reason of the interests of the child. I also accept that her Article 8 rights to tell her own story and thus have autonomy, as explained by Munby J in Re Roddy, would be interfered with. The level of the interference in the Mother's rights should not be underestimated."
"The Judge's approach to the mother's right to tell her story was firmly grounded in principle and authority. Lieven J may, if anything, have slightly undervalued this aspect of the case."
Hearings in private
"First, and most obviously, Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private. The fact that the media may attend the hearing pursuant to FPR 27.11 and PD27B does not alter the fact that the hearing is in private."
"The language of the order provides for privacy at the hearing. It has nothing to do with secrecy as to the facts of the case."
So too with the language of FPR 27.10. That language does no more than to provide for partial privacy at the hearing. It has nothing to do with secrecy as to the facts of the case.
Anonymity achieves transparency?
A threat of blackmail?
"There remains this point. Granted that the principle of openness of justice may yield to compulsory secrecy in cases involving patrimonial interest and property, such as those affecting trade secrets, or confidential documents, may not the fear of giving evidence in public, on questions of status like the present, deter witnesses of delicate feeling from giving testimony, and rather induce the abandonment of their just right by sensitive suitors? And may not that be a sound reason for administering justice in such cases with closed doors? For otherwise justice, it is argued, would thus be in some cases defeated. My Lords, this ground is very dangerous ground. One's experience shews that the reluctance to intrude one's private affairs upon public notice induces many citizens to forgo their just claims. It is no doubt true that many of such cases might have been brought before tribunals if only the tribunals were secret. But the concession to these feelings would, in my opinion, tend to bring about those very dangers to liberty in general, and to society at large, against which publicity tends to keeps us secure: and it must further be remembered that, in questions of status, society as such - of which marriage is one of the primary institutions - has also a real and grave interest as well as have the parties to the individual cause."
Distress to the parties
i) Lord Atkinson in Scott v Scott at 463:
"The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect ..."
ii) Lord Sumption JSC in Khuja v Times Newspapers Ltd at [34(2)]:
"the collateral impact that this process has on those affected is part of the price to be paid for open justice and the freedom of the press to report fairly and accurately on judicial proceedings held in public":
iii) Holman J in Fields v Fields at :
"I am aware that as it progressed the case attracted considerable coverage in some newspapers and online, which I was told that the parties found distressing. I regret their distress; but it cannot, in my view, override the importance of court proceedings being, so far as possible, open and transparent. Courts sit with the authority of the Sovereign, but on behalf of the people, and the people must be allowed, so far as possible, to see their courts at work. There is considerable current, legitimate public interest in the way the family courts daily operate, and that cannot be shut out simply on an argument that the affairs of the parties are private or personal. Precisely because I am a public court and not a private arbitrator, I must be exposed to public scrutiny and gaze."
iv) Dame Victoria Sharp PQBD in Griffiths v Tickle & Ors  EWCA Civ 1882 at :
"Publicity for what goes on in court may be embarrassing and painful for those involved and third parties who are indirectly and incidentally affected…"
Indirect identification of children
"The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity."
"In any event I am very reluctant to extend the principle in ETK from free-standing privacy proceedings into what are conventional civil property proceedings where I am doubtful that an equivalent order would be made if the proceedings were about employment or professional negligence."
I adhere to that view. The Article 8 rights of the children is not the subject matter of the application by the husband. It is an incidental feature of the application. In my judgment it would need some clear causal evidence, such as that in ETK (the risk of imperilling the parties' reconciliation) for indirect identification of the children to be a relevant factor in the balancing exercise. In fairness to Mr Webster QC, he placed no weight on this factor.
Providing documents to the press/bloggers
"Hence "[i]n a case where documents have been placed before a judge and referred to in the course of proceedings … the default position should be that access should be permitted on the open justice principle; and where access is sought for a proper journalistic purpose the case for allowing it will be particularly strong". In evaluating the grounds for opposing access, the court would have to carry out a fact-specific proportionality exercise. "Central to the court's evaluation will be the purpose of the open justice principle, the potential value of the material in advancing that purpose and, conversely, any risk of harm which access to the documents may cause to the legitimate interests of others""
"[The Press Association] submits that granting non-party access to the parties' skeleton arguments will plainly advance the principle of open justice, will cause no harm to the legitimate interests of others and is both practical and proportionate."
"In deciding whether to make a direction under paragraph 3.5, the court must take into account all the circumstances of the case and have regard in particular to:
(a) the interests of justice;
(b) the public interest;
(c) the protection of the interests of any child, vulnerable adult or protected party;
(d) the protection of the identity of any person intended to be protected by an order or direction relating to anonymity; and
(e) the nature of any private or confidential information (including information relating to personal financial matters) in the document."
Interim reporting restriction orders
"We heard the appeal in public, but to ensure that this did not defeat the entire purpose of the appeal we made an anonymity order in respect of the father, mother and child, to prevent public disclosure of identifying information until after we had given judgment"
i) The primary material on which the expert accountants gave their evidence, namely the accounts, are public documents available (or which in due course will be made available) at Companies House. From the information in those accounts, as well as from conversations with the husband and other participants in the business, the experts formed their opinions as to the future maintainable earnings of the business. They were also able to form a view as to the quantum of surplus assets to be added to the enterprise value of the business (the figure was ultimately agreed).
ii) This evidence is routine in any case where the value of an unlisted business is in issue in financial remedy proceedings. It is likely to be far less extensive than the evidence which would be given to the Companies Court on an unfair prejudice petition under s. 994 Companies Act 2006. Yet s. 994 proceedings are heard in open court without reporting restrictions.
iii) None of that evidence, if reported, will, in my judgment, sour existing relationships and/or enable the husband's competitors to obtain a significant advantage. Nor would it affect the commercial interests of the husband's business partner. These are easy assertions to make but I was not given any concrete examples of how a competitor might actually obtain a significant advantage if it were to read the court's summary and analysis of the expert evidence in its judgment.
"20 The background facts are set out in Mostyn J's judgment, WM v HM  EWFC 25. ...
22. In 1978 the husband and a friend started a business which ultimately became Dextra. They were equal partners until April 1989 when the husband bought the friend's shares. According to Mr Pointer QC's Skeleton for this appeal for the wife, the husband was able to acquire these shares "by raising funds within (Dextra), partly by declaring a dividend … and partly by increasing company debt". In the course of his oral submissions he added that the directors' loan account was also written off. Following this purchase, the husband owned 99% and the wife 1% of the shares."
"In step with the modern recognition of the vital public importance of transparency, my default position for the future will be to publish my financial remedy judgments in full without anonymisation, save as to the identity of children. Derogations from that default position will have to be distinctly justified."
That was six months ago. The husband has known for a long time that any proposed derogation would have to be strictly justified, and he has prepared accordingly. In contrast, the parties in A v M and BT v CU did not have the time and opportunity to prepare a plea for confidentiality and I judged that in such circumstances it would be unfair to issue an un-anonymised judgment.
i) the naming of the minor children, the publication of photographs of them, identification of their schools or the place where they live;
ii) the reporting of the content of the advice of jointly-instructed tax counsel and the court's consequential calculations of the value to be taken of certain potential tax liabilities of the husband; and
iii) the reporting of the advice given to the husband of the risks he faces in the Irish litigation and the court's consequent calculation of the amount of potential damages to be taken into account.
In my judgment, this order shall not run in perpetuity. Therefore, the provision at (i) in respect of the children will endure only for as long as at least one child is under 18. The provisions at (ii) and (iii) will expire on 1 January 2026 unless earlier discharged.
"...where a [financial remedy] judgment is to be published, the names of the parties and the names of the parties children will not be included in the judgment - unless the court is of the view, having considered the applicable convention rights and any representations from the parties or other interested person or body, that it is appropriate for them to be named in furtherance of convention rights (and in compliance with the s6 HRA 1998 obligations of the court as public body)."
Note 2 A very useful anthology of all the principal dicta can be found in the judgment of HHJ Tayler in Guardian News & Media Ltd v Rozanov & Anor (Practice and Procedure - Tribunal Erred In Law)  EAT 12 [Back] Note 3 These respectively provided (1) that proceedings about children should be heard in chambers; and (2) that in such proceedings any document held by the court, including a judgment, was not to be made available to the general public. [Back] Note 4 I say “may be” because a natural construction of rules 27.10 and 27.11 is that once the media have exercised the right to be present at a hearing, that hearing is no longer “in private”: see Norfolk County Council v Webster & Ors  EWHC 2733 (Fam) at  per Munby J. So far as I am aware no-one has since grappled with the point except by assuming that the language of the rules has an effect which arguably it does not. [Back] Note 5 (1) Akhmedova v Akhmedov and others  EWHC 545; (2) Cooper-Hohn v Hohn  EWHC 4122 (Fam); (3) HRH Haya Bint Al Hussein v His Highness Mohammed Bin Rashid Al Maktoum  EWFC 94; (4) Barclay v Barclay  EWFC 40; (5) Martin v Martin  EWCA Civ 2866; (6) Estrada v Al-Juffali  EWHC 1684 (Fam); (7) Gray v Work  EWHC 834 (Fam); (8) Robertson v Robertson  EWHC 613 (Fam); (9) Chai v Peng & Others  EWHC 792 (Fam); (10) Al-Baker v Al-Baker (No 2)  EWHC 2510 (Fam). [Back] Note 7 Baroness Hale in Dring at  refers to a fact-specific “proportionality” exercise which might imply a different test to a balancing exercise. I think it unlikely that she was referring to anything other than the Re S balancing exercise.
[Back] Note 10 In s.121 of the Family Law Act 1975 Australia has grasped the nettle and enacted just such a scheme. It imposes a widespread prohibition on the publication of any part of family law proceedings. Subject to limited exceptions it is a criminal offence to publish information that identifies any person who is a party to such proceedings or who is otherwise connected to such proceedings. In my opinion only Parliament can determine if such secrecy would be in the public interest and that we should follow suit. [Back]
Note 2 A very useful anthology of all the principal dicta can be found in the judgment of HHJ Tayler in Guardian News & Media Ltd v Rozanov & Anor (Practice and Procedure - Tribunal Erred In Law)  EAT 12 [Back]
Note 3 These respectively provided (1) that proceedings about children should be heard in chambers; and (2) that in such proceedings any document held by the court, including a judgment, was not to be made available to the general public. [Back]
Note 4 I say “may be” because a natural construction of rules 27.10 and 27.11 is that once the media have exercised the right to be present at a hearing, that hearing is no longer “in private”: see Norfolk County Council v Webster & Ors  EWHC 2733 (Fam) at  per Munby J. So far as I am aware no-one has since grappled with the point except by assuming that the language of the rules has an effect which arguably it does not. [Back]
Note 5 (1) Akhmedova v Akhmedov and others  EWHC 545; (2) Cooper-Hohn v Hohn  EWHC 4122 (Fam); (3) HRH Haya Bint Al Hussein v His Highness Mohammed Bin Rashid Al Maktoum  EWFC 94; (4) Barclay v Barclay  EWFC 40; (5) Martin v Martin  EWCA Civ 2866; (6) Estrada v Al-Juffali  EWHC 1684 (Fam); (7) Gray v Work  EWHC 834 (Fam); (8) Robertson v Robertson  EWHC 613 (Fam); (9) Chai v Peng & Others  EWHC 792 (Fam); (10) Al-Baker v Al-Baker (No 2)  EWHC 2510 (Fam). [Back]
Note 7 Baroness Hale in Dring at  refers to a fact-specific “proportionality” exercise which might imply a different test to a balancing exercise. I think it unlikely that she was referring to anything other than the Re S balancing exercise. [Back]
Note 10 In s.121 of the Family Law Act 1975 Australia has grasped the nettle and enacted just such a scheme. It imposes a widespread prohibition on the publication of any part of family law proceedings. Subject to limited exceptions it is a criminal offence to publish information that identifies any person who is a party to such proceedings or who is otherwise connected to such proceedings. In my opinion only Parliament can determine if such secrecy would be in the public interest and that we should follow suit. [Back]