Strand, London, WC2A 2LL
B e f o r e :
|- and -
John Martin QC and Rebecca Bailey-Harris (instructed by Miles Preston & Co Solicitors) for the Defendant/Respondent
Hearing dates: 12 14 June 2012
Crown Copyright ©
Mr Justice Mostyn :
"[It] might be worth bringing to the judge's attention the fact that the application was made on May 9 and the decision is due today, meaning that this can hardly be called notification of an application"
The press were not represented at the hearing. It must be reasonably speculated that this was because they did not have sufficient time to arrange representation. I do not regard 105 minutes' notice as sufficient to comply with s12(3)(a) of the 1998 Act, even though I must accept some responsibility for it in the light of remarks made by me on this topic at the PTR.
"2. In view of the case law in this area, the large numbers of cohabitating couples and the parties' professional status, I believe this case is likely to attract both reporting and potentially also media interest.
3. The background to my application has already been referred to extensively in the correspondence and evidence in this matter. I have five children: two older children respectively are now adults and are the children of the claimant. They both carry my surname. Three aged between 9 and 1 respectively are the children of A. All my children with A bear my surname, and I am correctly named as their father on all school parents' lists, which are widely circulated by the school to parents. They each have a two name surname starting with A's surname with the last name being mine; it is not hyphenated either on their passports or elsewhere. They currently use just A's surname at school partly due to reasons associated with this case. I intend them to use my surname at all times and they have expressed a wish to do so and my son will do so.
4. My name is unusual and distinctive in this country, even in 2012.
5. This case has inevitably had a very detrimental impact on my children and on their mother, A, and our relationship. A is extremely ill. Her health had in fact stabilised prior to the first letter I received from Charles Russell in late September 2009, but has increasingly deteriorated since that period. A notable collapse in her health took place within two or three weeks of our holiday last year and followed the service on my solicitors of an application while I was on holiday, with the hearing listed for a few days after my return. It ruined our holiday. There had been an attempt to list it on short notice while I, and my solicitor, were away. It was in my opinion an entirely inappropriate application and was supported by what I have stated to be a misleading witness statement. It put me under considerable pressure as have these proceedings. A was very upset by it. The effect of the relapse was that A effectively ceased to be able to walk and had to be taken to hospital Her health is continuing to deteriorate and she is now once again at a point where walking at all has become extremely difficult. She cannot now cope with even simple matters without becoming overwrought.
6. A has told me that she is thinking of leaving me and taking the children with her as she cannot take anymore of the stress or the consequences of my former relationship with the claimant. I also believe if there is any publicity over this case, or she is approached by anyone about it, or there are issues with our children arising from it, or its publication including them being teased at school, it will materially further impact on her health and result in our relationship breaking up. She will then seek to move away and go to live near her mother. A and my children have a right to be protected from a situation which is not of their making and a right to a family life. Any further serious deterioration in A's health could deprive them of their mother.
7. I accordingly ask for an order in a form that protects my children and A from the threats to their health, well-being and family life I have identified above. In particular I seek an order that my own surname and my children's surname in its full and shortened form, using either their mother's or my own surname only, are anonymised as are the identities of all three of my properties, as they would readily be connected to A and my children now or in the near future."
"8. A further matter that arises is that a very important witness to my case, B , has made it clear he is not prepared to give evidence if his evidence could result in his previous conviction, which is now spent, coming out. He was a professional person and ceased to practice in circumstances within my full knowledge. Neither he nor his wife are, quite understandably, prepared to risk the life they have built since his conviction, to assist me in this case. In fact his mother was originally prepared to give evidence on my behalf and remembered the fact that she had lent me money, and that the claimant had also lent me money as a loan, to buy Blackacre. She also said in my presence that she remembered that the claimant had not wanted to be involved in buying either Blackacre or Whiteacre . However after she had recounted her memory of events, B said he was very concerned about his involvement in this case in the light of his earlier conviction and any publicity associated with the case. As soon as he said that B's mother changed her attitude, and she has consistently refused to make a witness statement, citing her wish not to do anything that would harm C as a woman. I accordingly ask that his name is also anonymised in this case so that he cannot be identified and can give evidence freely."
The law: the starting point
"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. "
Lord Shaw of Dunfermline expressed himself forcefully at page 477:
"It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. "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." But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: "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."
And at page 484:
"I may be allowed to add that I should most deeply regret if the law were other than what I have stated it to be. If the judgments, first, declaring that the Cause should be heard in camera, and, secondly, finding Mrs. Scott guilty of contempt, were to stand, then an easy way would be open for judges to remove their proceedings from the light and to silence for ever the voice of the critic, and hide the knowledge of the truth. Such an impairment of right would be intolerable in a free country, and I do not think it has any warrant in our law. Had this occurred in France, I suppose Frenchmen would have said that the age of Louis Quatorze and the practice of lettres de cachet had returned."
" the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process may be regarded as fulfilling its purposes."
The Human Rights Act 1998
"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."
"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."
The balancing exercise
"56. If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA [Narcotics Anonymous] is publicised in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information. "
Therefore, once another interest protected by the law comes into play (by which I mean is positively proved, rather than merely asserted) then a fact-specific balancing exercise has to be undertaken.
"First, neither [Articles 8 nor 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test."
A very recent example of the conduct of the balancing exercise is the comprehensive decision of Tugendhat J in Trimingham v Associated Newspapers Ltd  EWHC 1296 (QB). I shall return to this decision in another context later.
Anonymisation and freedom of expression
"What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG v- Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell v- MGN Ltd at para 59 "judges are not newspaper editors" this is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report in some austere, abstract form, devoid of much of its human interest could well mean that the report would not be read and the information would not be passed on."
And per Lord Steyn in re S at para 34:
"from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial. If newspapers choose not to contest such an injunction they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
The interests of children
"Then there are the 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. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment. "
And at para 18:
"The rights of children are not confined to their Article 8 rights. In Neulinger v Switzerland (2010) 28 EHRC 706 the Strasbourg court observed that:
"131. The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken 'of any relevant rules of international law applicable in the relations between the parties' and in particular the rules concerning the international protection of human rights.
135. there is currently a broad consensus including in international law in support of the idea that in all decisions concerning children, their best interests must be paramount."
Support for that proposition can be gathered from several international human rights instruments, not least from the second principle of the United Nations Declaration of the Rights of the Child 1959, from article 3(1) of the Convention of the Rights of the Child 1989 (UNCRC) and from article 24 of the European Union's Charter of Fundamental Rights. For example, article 3(1) of the UNCRC provides:
"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.""
And at para 19:
"It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card."
And at para 20:
"How then does this approach square with the way Lord Steyn advised in Re S that the ultimate balance should be struck ? He was confining himself to articles 8 and 10 and not ranging more widely to take note of the other Convention rights of children. He expressed his opinion long before Neulinger called for a re-appraisal of the position. In any event, the emphasis he added makes it clear that he was concerned strictly with the balance between article 10 and article 8 "as such", i.e. where the only rights in balance were those conferred by articles 8 and 10. If, as he requires, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary, then the additional rights of children are to be placed in the scale. The question then is whether the force of the article 10 considerations outweigh them given what I have said in paragraph 19"
"I have emphasised that in using the word "reasonable" in this judgment I am giving it the special meaning which I have held that I am required to give it in order to interpret [Protection from Harassment Act 1997] s1(3)(c) compatibly with the right to freedom of expression. I also emphasise that I make no finding as to whether what the Defendant has done is reasonable in any other meaning of the word reasonable. It is not appropriate for the court to express opinions on matters which are not relevant to a legal issue. Matters of style, and to a large extent what is or is not relevant, are matters within a journalist or editor's field of independence, upon which the court should express no view. The Defendant is one of the most successful news publishers in the world. So there are many readers who are not offended by what it publishes. On the other hand, there are people who are very critical of what the Defendant publishes. A court cannot express a view in the way that anyone else can. All the court can do is to find whether or not it is necessary and proportionate to sanction or prohibit a particular publication on one of the grounds specified in Art 10(2)."
"Here there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public. In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children are in play."
And at para 23:
"The decisive factor
The decisive factor is the contribution the published information will make to a debate of general interest. Is a debate about the reasons why X's employment terminated a matter of such public interest? Both the appellant and X will be known to a sector of the public though it is impossible to measure how large or how small that sector is. Certainly some members of the public will have noticed the end of her employment: a proportion of them will even have speculated why she left. But the reasons for her leaving give rise to no debate of general interest. The reasons for her leaving may interest some members of the public but the matters are not of public interest. Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved."
Engagement of the Convention rights
"Furthermore, says Mr Tugendhat, and I agree, if those who seek to bring themselves within para 2 of Art 10 are to establish 'convincingly' that they are and that is what they have to establish they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required (and this even if the case involves national security) is proper evidence: see The Zamora  2 AC 77, 108, Secretary of State for Defence and Another v Guardian Newspapers Ltd  AC 339, Council of Civil Service Unions and Others v Minister for the Civil Service  AC 374, 406F, and ex parte Guardian Newspapers Ltd  1 WLR 2130."
Financial remedy proceedings
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and counter-charges in support of which evidence has been given;
(iii) submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;
(iv) the judgment of the court and observations made by the judge in giving judgment.
In the Court of Appeal (Clibbery v Allen  1 FLR 565) no argument was addressed on this issue although the President expressed the view (at para 71) that 'this may be the case'. By contrast, Thorpe LJ stated at para 90 "but it is self-evident that the 1926 Act no longer bites on the business of the courts in our modern family justice system". Speaking for myself I incline more to the view of Munby J, supported (tentatively) by the President.
"Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment."
"This judgment is being handed down in private on [date]. It consists of [X] paragraphs and has been signed and dated by the judge. The Judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the children and the adult members of their family must be strictly preserved. If reported, it shall be the duty of the Law Reporters to anonymise this judgment"
"The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one longstanding common law exception to the principle that justice must be done in open court."
"It is worth noting that generally speaking it is not the adult-only cases that result in media scrutiny. However, the key concern with introducing automatic rights of attendance for the media without ensuring an appropriate scheme for reporting restrictions is that violent, distressing and salacious details could be available to the media. Articles relating to domestic violence or forced marriages might be informative for the public, but could name the victims involved or provide identifying personal details. The possibility of such reporting could be to deter victims from coming forward to obtain the protection of the court.
Since we have decided to open up family proceedings to the media, we consider it essential to bring forward legislation that provides the necessary protection for children and families by preventing certain information from being published without the permission of the court. Children and families need to be confident that their privacy will be protected. We will revise the law on reporting restrictions as soon as parliamentary time allows."
(Emphasis in original)
i) a hearing relating to the parties' finances where the information being considered includes price sensitive information (such as confidential information which could affect the share price of a publicly quoted company); or
ii) any hearing at which a witness (other than a party) states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in their presence.
"Viewed from the perspective of the media, and the market which the media are serving, that public interest is to be promoted and public confidence in the courts is to be maintained by justice being administered in public, or at least in a manner which enables its workings to be properly scrutinised, so that (and this is the modern European Convention version of the age-old Benthamite principle) the judges and other participants in the process remain visible and amenable to comment and criticism."
"The position therefore is that the media will have considerable difficulty in reporting proceedings for ancillary relief and other cases in which reference is made to information disclosed under compulsion unless the information passes into the public domain.
A question arises as to whether information put before a court sitting in private with media representatives lawfully in attendance has entered the public domain. If so, the implied undertaking ceases to have effect in respect of that information. This is not a matter which has received judicial consideration."
Conclusions on the law
i) These Trusts of Land and Appointment of Trustees Act 1996 proceedings are public business under the CPR.
ii) The starting point or general rule, derived from Scott v Scott, Article 6 and CPR 39.2(1) is that the proceedings will be heard in public, without anonymisation, and the press will be free to report them fully. Freedom of expression is an ancient common law right now expressed in Article 10, and I must by virtue of s12(4) HRA 1998 have particular regard to the importance of that right.
iii) The starting point or general rule will only be derogated from for good reason. While CPR 39.2(3) gives a number of examples where derogation may be granted, the only relevant ones for my purposes are the engagement of Article 8 rights by D and his family viz "the right to the right to respect for his private and family life and his home", and also Article 6 in relation to B .
iv) Where, as here, the Article 8 rights engaged are not only those of adults but also of children, then I must have particular regard to the children's interests given the best interests principle enshrined in the United Nations Convention on the Rights of the Child and other international instruments to which this country has subscribed.
v) Subject to these two "particular regards" I must conduct a highly fact-specific and focused balancing exercise between the competing claims or rights.
vi) The engagement of the competing claims or rights must be proved by clear and convincing evidence. Mere assertion is not enough.
vii) In conducting the balancing exercise I should be very wary of either extending the children's best interests principle into realms where they arguably ought not properly sound or of making value judgments about the journalistic merit of any proposed report of the proceedings.
viii) The fact that the proceedings would likely be anonymised if they were under the Matrimonial Causes Act 1973 should not intrude into the balancing exercise. Reform of the rules in this regard is a matter for the Government and Parliament.
The arguments of counsel
i) I have to assume that the proceedings and the result will be reported fully and, in some papers at least, sensationally.
ii) This will probably cause great distress and upset to D and A and possibly a deterioration in A's health. I am prepared to accept D's evidence notwithstanding its questionable aspects as identified by Mr Todd QC.
iii) However, like all media reports of this nature their currency will be ephemeral and likely forgotten in a comparatively short period of time.
iv) In contrast, I must further assume that there will be also be serious and responsible reporting of the case, involving an area of law which is controversial, and which will contribute to an authentic public debate. The content of that reporting would be appreciably diminished and disembodied were the case to be anonymised.
v) Given that the children do not bear D's surname, I regard it as unlikely (but not impossible) that their school-fellows will register a report about a property dispute in which their father is involved with his former partner and as a result bully them in the playground. Unlike the children in K v L there is no security concern that would arise from the proceedings being held without anonymisation. I cannot see any appreciable risk, or indeed causative link, that the children's interest would be adversely affected by the publication of these proceedings.
vi) 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.
vii) I acknowledge and rely on the differences between this case and ETK as referred to in para 63 above both in relation to the underlying facts and the nature of the proceedings.
viii) I regard it as highly implausible that if B's identity were not anonymised and he was summonsed to attend that the quality of his evidence would be compromised.
LATER (16 January 2013)