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Cite as: [2002] 1 FLR 565, [2002] EWCA Civ 45, [2002] Fam 261, [2002] UKHRR 697, [2002] Fam Law 260, [2002] 1 All ER 865, [2002] 1 FCR 385, [2002] 2 WLR 1511

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Allan v Clibbery [2002] EWCA Civ 45 (30th January, 2002)

		Neutral Citation Number: [2002] EWCA Civ 45
		Case No: FD00F 10504

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (Mr Justice Munby)

Royal Courts of Justice
Strand,
London, WC2A 2LL

30th January 2002.

B e f o r e :

THE PRESIDENT
LORD JUSTICE THORPE
and
LORD JUSTICE KEENE
____________________

IVAN WILLIAM ALLAN
Appellant

- and -

GLORY ANNE CLIBBERY
Respondent

____________________

(Transcript of the Handed Down Judgment of
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 A. Moylan QC and Mr C. Pocock (instructed by Kinglsey Napley for the Appellant)
Mr J. Price QC and the Hon. A. Monson (instructed by Reynolds Porter Chamberlain for the Respondent)
____________________

HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
____________________

Dame Elizabeth Butler-Sloss, P. :

This is an appeal by Ivan Allan, (the appellant), from the refusal of Munby J. on the 14^th June 2001 to continue injunctions granted ex parte by Connell J. on the 3^rd May restraining Glory Anne Clibbery, (the respondent), from disclosing information about the appellant. The appeal raises fundamental issues over the procedures for hearing family cases in the High Court and in county courts round the country. The specific question raised on this appeal is whether the practice of hearing the majority of family cases in chambers has the consequence that information about those proceedings may not be reported.

The background to this appeal is an application by the respondent in the Royal Courts of Justice under Part IV of the Family Law Act 1996 seeking a non-molestation order against the appellant and an occupation order in respect of a flat in Piccadilly owned by a company of which the appellant was the beneficial owner. The application was heard by His Honour Judge Krikler on the 9^th April, 2001. The respondent abandoned her application for a non-molestation order. The issues before Judge Krikler were whether the court had jurisdiction to make an occupation order, and if there was jurisdiction whether, in the exercise of his discretion, he should make such an order. The respondent accepted that she had no beneficial interest in the flat and that she and the appellant did not marry nor agree to do so. Judge Krikler found for the appellant and held that the respondent and appellant had never lived together as husband and wife and that the flat had never been their home. Under the provisions of the Family Law Act, section 36(1), he had no jurisdiction to make an occupation order. He also decided that, if he had had jurisdiction, he would not have made an order. He dismissed the application and ordered the respondent to pay the appellant's costs. The respondent then vacated the flat in which she had been living.

The case before Judge Krikler appears to have generated a considerable volume of paper, numerous affidavits and documents disclosed on discovery. The trial bundle was contained in six lever arch files. None of the documents filed, nor the evidence given to the circuit judge, nor the orders made, nor his judgment was shown either to Munby J. nor to us. The case was heard in accordance with rule 3.9 of the Family Proceedings Rules 1991, (the 1991 Rules), in chambers and judgment was given in chambers. Munby J, in his judgment, described the next step as the reaction 'of the woman scorned'.

The respondent took her story to the Daily Mail. She appears to have been particularly upset and angry by an affidavit sworn by the appellant and, it would seem, she gave direct extracts from it to the Daily Mail journalist. She set out her side of the story in emotive language. The appellant is a prominent business man, living mainly in Hong Kong who had a sexual relationship with her over a number of years, and the story has been published several times in the Daily Mail and more recently in other newspapers.

On the 30^th April 2001, the appellant's solicitor wrote to her solicitor seeking a written undertaking from her not to repeat the publication nor to disclose confidential information. On her behalf, her solicitor refused to do so and said that his client wished to alert members of the general public to the lack of a concept of 'common law marriage' and that women should be aware of how little rights they have on the breakdown of such a relationship. Her solicitor asserted her right to publish the information. The appellant then learned that she had been in touch with a journalist in the Far East and that she had suggested that she might sell a number of ideas for articles about the appellant. Malice or bad faith on the part of the respondent has not however been argued as part of this appeal.

On the 3^rd May the appellant issued an application in the High Court Family Division for injunctions to restrain the respondent from:

"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 12^th April 2001".

On a without notice application made on the 3^rd May Connell J. granted the injunctions as requested and the respondent was served the same day. On the 10^th May the appellant issued an application to commit the respondent for contempt of court in respect of the disclosure of information to the Daily Mail and to the journalist in the Far East. Those proceedings were adjourned pending the hearing before Munby J. and on appeal. After the oral submissions were completed, we were informed that the contempt proceedings have been withdrawn.

The judgment of Munby J. has been reported as Clibbery v Allan and Another [2001] 2 FLR 819. He set out the facts at pages 822 to 827 and said at paragraph 6:

"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.

He set out the issues at page 827 as follows:

"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?"

At page 828 he said:

"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 [2001] Fam 59,71B, 71H. Accordingly it is best to go back to basics."

He then, in the remainder of his long and careful judgment, demolished those preconceptions and held that there was in principle no difference in the procedures to be adopted in the Family Division of the High Court from the other two Divisions. The guiding principle was open justice and this applied across the board. The practice of hearing cases in chambers was largely for administrative convenience and did not denote privacy or confidentiality of the proceedings or the documents used in the proceedings. The only derogation from that position was to be found in the express exceptions set out by the House of Lords in Scott v Scott [1913] AC 417, in the statutory exceptions in the Judicial Proceedings (Regulation of Reports) Act 1926 (as amended), the Administration of Justice Act 1960, section 12 and the Contempt of Court Act 1981, section 11.

His conclusion is found at pages 864 to 865:

"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 [1913] AC 417, Forbes v Smith [1998] 1 FLR 835 and Hodgson and Others v Imperial Tobacco Ltd and Others [1998] 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."

Munby J. then considered further arguments based on the Human Rights Convention and found the balance of the rights of the parties to be in favour of publication. He accordingly dismissed the application for an injunction and discharged the injunction granted by Connell J. The injunction has however been continued pending the outcome of this appeal.

On appeal to this Court, in the most interesting and helpful submissions of Mr Moylan QC for the appellant and Mr Price QC for the respondent, three main issues have emerged:

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?

It is necessary, in my judgment, to look at the first issue, (A), since Munby J. expressed his conclusions on this issue also, and it is also important to look at it separately from the question of publication since the one may not and, in certain cases, clearly does not cover the other. The first issue also raises the question whether the 1991 Rules may be ultra vires in providing for private hearings, which exclude the public, in non-children cases.

Public or Private Hearing

The starting point must be the importance of the principle of open justice. This has been a thread to be discerned throughout the common law systems:

"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.

Proceedings in the courts are either held in open court, where the public is entitled to enter and listen or in circumstances in which the public is largely excluded either by rule of court or by practice. This exclusion does not, of itself, have the consequence of a ban on later publication. There was some confusion in argument in this Court, as there has been in the past, as to the meaning given to the words 'chambers', 'private', or 'in camera'. I start with the meaning of the word 'chambers'. It is not defined in section 67 of the Supreme Court Act 1981 which states :

" 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."

In the 1997 edition of the Supreme Court Practice Vol 2. Part 17 para 5276, 'chambers' was contrasted with 'in court' to mean 'in private, secret, secluded behind closed doors'. That definition was not considered an accurate description by Lord Woolf in Hodgson v Imperial Tobacco Ltd. Jacob J, in Forbes v Smith [1998] 1 FLR 835 in the passage I cite below, treated 'in chambers' as the same as 'in private', as I did in re PB (Hearings in open court) [1996] 2 FLR 765 at page 769. Jacob J's definition was approved by Lord Woolf in Hodgson v Imperial Tobacco Ltd and now adopted in CPR 39.2, (see below).

The other phrase in use, in particular, in the Chancery Division, was 'in camera'. This phrase sometimes denoted proceedings which were confidential or secret with the effect that the public were excluded and in respect of which there could be no subsequent publication of information. That situation was recognised by Lord Woolf MR in Hodgson v Imperial Tobacco Ltd . The phrase sometimes meant the same as 'in chambers'. The exclusion of the public from the hearing, as such, did not necessarily have the effect of prohibiting later publication of the proceedings. In the Administration of Justice Act 1960 section12 (3), hearings 'in chambers' and 'in camera' were treated equally,

" …. 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."

I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

Civil proceedings held in private

I start with the civil courts, whose procedures in many ways differ from family proceedings, but not entirely. The majority of cases in civil proceedings, whether at High Court or county court level, have been heard in public, whereas interlocutory proceedings have been heard in private, formerly in chambers. The practice of hearing cases in chambers has varied over the years and Munby J. set out in his judgment, at page 829, a detailed analysis of the procedure in the Queen's Bench and Chancery Divisions. It suffices to quote from the judgment of Jacob J. in Forbes v Smith at page 836D:

"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.

In Hodgson v Imperial Tobacco Ltd Lord Woolf MR set out the then existing procedure in the civil courts and a foretaste of his civil procedure reforms encapsulated in the Civil Procedure Act 1997 and the 1998 Rules. He endorsed the passage from the judgment of Jacob J. which I set out above. He said at page 1070:

"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 [1913] 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."

Lord Woolf then described the advantages of hearing cases in chambers and pointed out the surprising absence of authority for what could be repeated in public in respect of what went on in chambers. He continued at page 1071:

"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."

The procedure in all civil courts is now regulated by the Civil Procedure Act 1997, (the 1997 Act) which, by section 2 gave authority to the Civil Procedure Rule Committee, presided over by the Master of the Rolls, to make rules to be approved by the Lord Chancellor. The current Rules are the 1998 Rules. The general rule for hearings in court is set out in CPR 39.2:

"(1)The general rule is that a hearing is to be in public.

(2) ……

(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."

The Practice Direction to CPR 39 states at 1.3:

"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;"

The Practice Direction then lists eleven types of hearings which are to be heard in private. They include claims for possession, suspending a warrant of execution or possession, variation of a judgment debt, charging, garnishee, attachment of earnings, or similar applications, oral examination, application in relation to LSC funded client, security for costs in a Company Act section 726(1) application, applications by trustees and under the Inheritance (Provision for Family and Dependants ) Act 1975 or the Protection from Harassment Act 1997.

Paragraph 1.6 deals with hearings relating to a child or a patient. 1.8 states that:

“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.”

In the civil courts governed by the 1997 Act and the 1998 Rules, cases within the group set out in CPR rule 39.2, can be, but do not have to be heard in private, and the judge or district judge has the power to exclude the public. CPR 39.2 and the Practice Direction were challenged as ultra vires by way of judicial review in the Divisional Court in The Queen on the Application of Pelling v Bow County Court [2001] UKHRR 165. In his judgment Buxton LJ, held that the 1998 Rules were intra vires and that rule 39.2 was facultative. A hearing in private in civil proceedings may mean more than just administrative convenience and may include a confidential hearing. The implementation of the 1998 Rules has simplified life for all judges and practitioners in civil proceedings. The same cannot be said of the family procedures.

Scott v Scott

It is a major plank of the submission advanced by Mr Price on behalf of the respondent that to hold the present proceedings in private is contrary to the principles laid down in Scott v Scott. It is therefore necessary to look with some care at the background to the facts of that case and the approach of the House of Lords. Parliament by enacting the Matrimonial Causes Act 1857, (the 1857 Act), terminated the ecclesiastical jurisdiction to deal with petitions for divorce a mensa et thoro and nullity and the ancillary orders which would have to be made following such decisions. Judicial separation was substituted for divorce a mensa et thoro and a new jurisdiction was given to allow petitions for dissolution of marriage. Ever since 1857 the jurisdiction to deal with matrimonial breakdown and its consequences has been regulated by statute and not by the common law. A major exception to the statutory framework was the parens patriae jurisdiction in wardship. References to children in the speeches were to wardship and not to statutory provisions relating to children. At the time of Scott v Scott the relevant legislation was the Matrimonial Causes Acts 1857 to 1907, and the Divorce Rules made thereunder (the relevant Divorce Rules were those enacted on 26 December 1865, as subsequently added to/amended). Section 22 of the 1857 Act provided that, in cases other than those involving the dissolution of marriage, the principles and procedure of the Divorce Court were to follow so far as possible those which had been followed in the Ecclesiastical Courts, subject to the provisions of the 1857 Act. Section 46 stated:

"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."

The Divorce Rules did little to restrict this general principle of openness. Some of them provided for the hearing in chambers of specific applications, such as rule 124, which concerned a deserted wife’s applications for a protection order over her post-desertion earnings and property – see In the Matter of Jenny Morris [1902] P 104. Others provided for certain hearings to take place by way of summons (which were heard in the judge’s private room – see rule 162), such as applications to stay proceedings for restitution of conjugal rights (rule 176) and applications to vary or rescind a Registrar’s order on alimony (rule 192). Rules 40 and 205 dealt explicitly with the mode of trial or hearing in matrimonial causes, but neither in any way qualified or restricted the general principle set down by section 46 of the 1857 Act. Therefore, although some of the Divorce Rules made express provision for the private hearing of certain specified applications, the majority of matrimonial hearings (including nullity suits) were left to be governed by the provisions of section 46.

In Scott v Scott the petitioner wife sought a declaration of nullity on the ground of non-consummation of the marriage, due to the impotency of the respondent husband. Among the directions for the hearing of the petition was that the cause be heard in camera. The case proceeded undefended and was heard in private. The President of the Probate, Divorce and Admiralty Division pronounced a decree nisi. The petitioner obtained an official transcript of the proceedings and sent copies to members of her husband's family. He instituted proceedings to commit her, her solicitor and others for contempt of court for disclosing information about the nullity hearing and sought injunctions to restrain them from making similar or other communications about the nullity proceedings. The trial judge found the petitioner and her solicitor to be in contempt. The Court of Appeal dismissed the appeal as incompetent. It would appear that there had grown up a practice in the Division of hearing nullity suits in camera and with this petition the High Court followed the same practice.

The House of Lords had two issues to consider, the propriety of the hearing of the nullity petition in camera and the power to prohibit subsequent publication of those proceedings. The House of Lords in their speeches made it clear that the 1857 Act and the rules made under it, and not the practices of the Ecclesiastical Courts as they had been believed subsequently to be, (see Lord Shaw of Dunfermline at pp470- 473), were to be followed in the Probate, Divorce and Admiralty Division . Viscount Haldane LC said at page 434 of his speech:

“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.”

He said at page 435:

"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……."

At page 437 he set out as exceptions, the cases of wards and lunatics in which the court exercised it paternal jurisdiction. He said:

"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."

He referred to the other case, of litigation as to a secret process,:

" 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."

He said at page 439:

"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."

In due course Parliament passed the Judicial Proceedings (Regulation of Reports) Act 1926, (the 1926 Act), later amended by the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 which prohibited reporting by the press, inter alia, of the evidence in cases of divorce, nullity, judicial separation and restitution of conjugal rights, although the hearings remained in open court.

The other members of the Court gave similar judgments underlining the clear principles of open justice. Earl Loreburn said at page 445:

"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."

He set out the same exceptions as the Lord Chancellor but included circumstances in which the Court might be cleared or closed if such a precaution was necessary for the administration of justice. He said at page 446:

"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."

He recognised that rules might be framed to regulate hearings otherwise than in court which would be valid if they did not go beyond the limitations he indicated. He pointed out that no such rules had been made.

Lord Shaw of Dunfermline was of the opinion that the order to hear the nullity suit in camera and to suppress thereafter all reports of what happened at the trial was beyond the power of the judge to pronounce. He said at page 476:

" 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."

This clear reminder of the requirement for open justice in the hearing of actions not only set out the common law principles underlying the procedures in court but also reflected the statutory requirements in section 46. It is clear that judges cannot decide arbitrarily whether a case should be heard in public or in private or that the entire proceedings should or should not remain secret. The general principles stated in Scott v Scott cannot, however, be treated as a fetter upon the power of Parliament to change the law as it did in the 1926 Act, (see above) and, indeed, as it did in the Matrimonial Causes Act 1950, s.32(4) which required evidence of sexual capacity in the course of nullity proceedings to be heard in camera (subject to the judge’s discretion to hear it in open court where the interests of justice so required). Nor can the decision in Scott v Scott be taken in any way to prevent or restrict the enactment of rules for regulating the trial of family cases.

Current procedures in family proceedings

I turn now to the current procedures in family cases. With the exception of wardship and certain declarations in medical cases heard in the High Court, the jurisdiction of the High Court Family Division and of the county courts with family jurisdiction, whether public or private, remains based on statute and regulated by the statutory framework. The hearing of cases is divided into those which are heard in open court and those heard in chambers. The way in which those cases are heard is regulated by rules and not by custom. In all cases, except adoption which has its separate Adoption Rules 1984, the Family Proceedings Rules 1991, (the 1991 Rules), direct the court and the parties to the procedure to be adopted and the way in which each case is to be heard. The 1991 Rules, as subordinate legislation, depend for their legitimacy upon the Matrimonial and Family Proceedings Act 1984, (the 1984 Act). Section 40 of the 1984 Act provides that the power to make rules of court for the purposes of family proceedings shall be exercisable by the Lord Chancellor, together with four or more of a group of people including the President of the Family Division. Section 40 (3A) was inserted by, and section 40(4) was amended by, the Civil Procedure Act 1997.

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."

Subsection (4)

"Rules made under this section may,…….

(a) modify or exclude the application of any provision of the County Court Act 1984; and

(b)…………………….."

The 1991 rules have been amended from time to time, most recently in 1999. Where the 1991 Rules provide for the procedure to be adopted in the High Court or in the relevant county court, they are to be followed. The 1991 Rules have not yet been revised to take account of the Civil Procedure Rules introduced in 1999. Where the 1991 Rules do not cover the situation before the court, recourse still has to be had to the relevant Rules of the Supreme Court, (otherwise superseded by the 1998 Rules). The statutory basis of the jurisdiction in family cases is of great importance in the light of the submissions made to Munby J. and to this Court.

The arrangement of the 1991 Rules is in 10 Parts. Part II covers matrimonial proceedings which subdivide into the petition, the pleadings, preparation for trial etc. and ancillary relief. Under Part II, the directions and interlocutory proceedings and ancillary relief applications are heard in chambers but the substantive hearing of the petition, including a nullity petition, is in open court, (see rule 2.32). As in 1857 and in 1913, oral evidence in divorce, nullity and judicial petitions is heard in open court and cannot be heard in secret (save that nowadays, evidence of sexual capacity in nullity proceedings is normally heard in camera – see s. 48(2) of the Matrimonial Causes Act 1973). One has to remember, however, that in uncontested divorce petitions, the major part of the procedure is dealt with on paper by the district judge, but the decree nisi is pronounced in public.

The procedure for hearing ancillary relief applications, during the continuance of the main proceedings and after the grant of a decree nisi or absolute, is regulated by rule 2.66(2) which provides:

" The hearing or consideration shall, unless the court otherwise directs, take place in chambers."

Applications for ancillary relief are almost invariably heard in chambers.

Part IV of the 1991 Rules deals with children applications under the Children Act 1989. There is no disagreement that children applications fall to be determined in private. Confidentiality in wardship cases was specifically recognised in Scott v Scott and section 12(1)(a) of the Administration of Justice Act 1960, treated children cases as an exception to the general rule of publication of court proceedings, see below. The procedure in children cases is set out in careful detail in the 1991 Rules and the confidentiality of all aspects of the proceedings, the evidence of the parties, the reports filed, and the documents disclosed is specifically provided for in rule 4.23, headed "Confidentiality of documents". Rule 4.16 deals with the hearing:

" (7) Unless the court otherwise directs, a hearing of, or directions appointment in, proceedings to which this Part applies shall be in chambers."

The public is almost always excluded from children proceedings which almost invariably remain confidential, subject to judgments, made suitably anonymous in cases of wider interest, being given in public or made available for publication.

Part IV of the Family Law Act 1996, with which we are concerned in this appeal, is to be found among non-matrimonial proceedings under Part III. This Part of the 1991 Rules includes a variety of other applications, including maintenance agreements and other financial relief applications, the Married Women's Property Act 1882 section 17, declarations of legitimacy or as to marital status, or consents to marriage of a minor. Some of those applications are heard in open court. Others, for instance, those that are analogous to ancillary relief applications, are heard in chambers, see for instance an application in case of failure to provide reasonable maintenance, rule 3.1(10). By rule3.9(1):

"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

Parliament has provided for rules to be made to regulate the statutory framework of the family justice system. The 1991 Rules are properly based upon the 1984 Act. In those rules the court has the power to exclude the public in family proceedings. For my part, I can see no problem in the application of this procedure under the 1991 Rules, designed as it is to provide a measure of privacy, not necessarily confidentiality, to family proceedings. The 1998 Rules give a similar degree of privacy to groups of civil cases. There remains also the power to allow the public in if the judge or district judge directs. This discretion is similar to that set out by Buxton LJ. in The Queen on the Application of Pelling v Bow County Court, see above. In the 1984 Act the authority to make the 1991 rules was provided by section 40. There is no statutory prohibition against providing for hearings in chambers in the family cases; on the contrary, there is a statutory basis for the Rules. The Administration of Justice Act 1960, section 12, (see below), does not concern itself with the legitimacy of hearings in private but with the publication of information from those proceedings. In my judgment, Munby J's judgment was expressed in too broad terms in stating that family proceedings could not, with the exception of children cases, be heard in private. The 1991 Rules are not ultra vires any Act of Parliament and there is no objection to family courts hearing cases in private and excluding the public where the 1991 rules permit them to do so.

Publication of information relating to proceedings

As I have already said above, the hearing of a case in private does not, of itself, prohibit the publication of information about the proceedings or given in the proceedings. The general rule is that it is not a contempt of court to report what has happened at a hearing in chambers, see Lord Loreburn in Scott v Scott at page 444 and Lord Shaw at page 484. The principle of open justice is to be derogated from only to the extent that it is strictly necessary to do so and applies equally to publication of information. In Attorney-General v Leveller Magazine and Others [1979] AC 440, Lord Edmund-Davies said at page 465:

"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."

Section 12 of the Administration of Justice Act 1960 sets out the circumstances in which it shall be a contempt of court to publish information given in private proceedings. Section 12 states:

"(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."

The exceptions set out in section 12 are not however exhaustive. Lord Woolf MR recognised in Hodgson v Imperial Tobacco Ltd that:

"(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.

In Riddick v Thames Board Mills Ltd [1977] 1 QB 881 this Court held that a party who disclosed a document on discovery was entitled to the protection of the court against any use of it otherwise than in the action in which it was disclosed. In that case the proceedings by a dismissed employee had been settled. A memorandum setting out the facts of the dismissal was disclosed in those proceedings. The employee subsequently brought an action in defamation based upon the memorandum. Lord Denning MR said at page 896:

"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."

Stephenson LJ. said at page 902:

"…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."

In Harman v Secretary of State for the Home Department [1983] 1AC 280 the House of Lords, by a majority, held that a solicitor who had obtained copies of documents disclosed on discovery by the other party to the litigation, gave an implied undertaking to the court not to use the copies, nor allow them to be used for any purpose other than the proper conduct of the action on behalf of his client; that the fact that they had been read out in open court at the hearing of the action, whether admitted in evidence or not, did not bring that implied undertaking to an end and that breach of the undertaking was a civil contempt.

Lord Keith of Kinkel said at page 308:

"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."

In Crest Homes Plc v Marks and Others [1987] AC 829, the House of Lords again considered the issue of use of material disclosed on discovery, this time by way of an Anton Piller order. Lord Oliver of Aylmerton said at page 854 that:

"…….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 Taylor v Director of the Serious Fraud Office [1999] 2 AC 177, the House of Lords held that, in order to ensure that the privacy and confidentiality of those who made, and those who were mentioned in, statements contained in unused material which had come into existence as a result of criminal investigation were not invaded more than was absolutely necessary for the purposes of justice, compliance by the prosecution with its obligation to disclose all such material to the defence generated an implied undertaking not to use the material for any purpose other than the conduct of the defence. Consequently the plaintiff was not able to use that material in his action for defamation. Lord Hoffman at page 208 repeated the requirement of public policy in securing the proper administration of justice. He said at page 210:

"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."

In Bourns Inc v Raychem Corp and another [1999] 3 All ER 154 an attempt was made to use documents disclosed for the purposes of taxation of costs for a collateral purpose. An implied undertaking was held to arise to use those documents only for the purposes of those proceedings. In that case there was no order for discovery but the court held that, if the documents had not been provided by voluntary disclosure, an order for production would have been necessary. Aldous LJ. said at page 162:

"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."

Although that case depended to a large extent upon the special requirements in connection with taxation of costs, the co-operation referred to by Aldous LJ. is of general application.

There are, of course, limits to the ambit of the protection of confidentiality of documents disclosed in litigation. Sir Nicolas Browne-Wilkinson VC in Derby & Co Ltd v Weldon (no.2)(1988) The Times October 20 rejected the submission that there was a general implied obligation not to disclose documents prior to use in court. His judgment was analysed in detail by Hobhouse J. in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756. At page 769 Hobhouse J. said:

"…..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."

In Gio Personal Investment Services Ltd v Liverpool and London Steamship Protection and Indemnity Association Ltd [1999] I WLR 984 there was an application to allow a non-party to inspect written submissions and documents required for parallel litigation. Potter LJ. referred, at page 990, to RSC Ord. 38 r 2A and said:

" 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."

In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 the Court of Appeal applied with approval the decision in Prudential Assurance. This was a patent action in which the Court had to consider the changing forensic practice whereby counsel no longer read out all the relevant documents and much of the argument was provided in written skeleton arguments read by the judge prior to the hearing of the case. This Court held that the documents in dispute had been read by the judge and referred to in open court and therefore came within the provisions of RSC Ord 24 r 14A. It is to be observed that in the above cases, each of them was heard or to be heard in open court where oral evidence was likely to be given and/or the documents and skeleton arguments referred to.

Both in civil and in family proceedings the court controls the use of documents during the proceedings and in certain instances after the end of the proceedings. So for example by virtue of CPR 5.4(2)(c), the court must give permission for a non-party to search for, inspect and take a copy of any court document other than a claim form which has been served or a judgment or order given or made in public (similar, though not identical, provisions are contained in FPR 10.20(3)). Similarly, CPR 31.22(2) empowers the court to restrict or prohibit the use of documents disclosed in proceedings, even if they have been read to or by the court, or referred to, at a public hearing. It would appear, although we have not heard argument on the point, that CPR r39.2 is wider than section 12 and that the exceptions set out in r 39.2(3), may be treated as heard in secret and the information about them may not be made public without the permission of the court. I do not however consider that is necessarily the position with regard to cases heard in private in chambers under the 1991 Rules.

Confidentiality of documents in the Family Division

The approach of the courts to applications in family proceedings is to some extent inquisitorial, even in non-children cases. The court is enjoined to have regard to all the circumstances in ancillary relief applications and in applications under section 36 of the 1996 Act, see below. In ancillary relief cases, the requirement of full and frank disclosure and that the parties to a claim for adjustment of their financial positions after divorce are obliged to provide information, places a considerable degree of compulsion upon both parties, see Livesey (Formerly Jenkins) v Jenkins [1985] 1 AC 424, FPR 2.61B; Form E.

In several first instance judgments the issue has arisen in attempts to use for collateral purposes documents disclosed in family financial proceedings. In Medway v Doublelock Ltd and Another [1978] 1 WLR 710 the plaintiff had sworn affidavits in ancillary relief proceedings in the Family Division pursuant to a court order. In Order 14 proceedings in the Chancery Division, the defendant company sought to make use of the affidavits in an application for security for costs. The defendant company argued that the implied undertaking applicable to discovery of documents did not apply to disclosures made by the plaintiff in his affidavits of means. Goulding J. said at page 713 that the principle of the implied undertaking:

"…..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."

He referred to the practice of the Family Division in hearing ancillary relief applications in chambers and the effect of rule 130 of the Matrimonial Causes Rules 1977, (now FPR 10.20) that documents filed with the court were not open for inspection without leave nor could a copy be taken without leave. Affidavit evidence was treated to a considerable extent as confidential. He then considered the balance of public interest and said at page 714:

"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.

In S v S (Judgment in Chambers: Disclosure) [1997] 1 WLR 1621 Wilson J. gave a written judgment in chambers in an application for ancillary relief. The wife's brother sent an official transcript of the judgment to the Inland Revenue, who sought leave from the judge, under r10.15(6) of the 1991 Rules, to keep the transcript and obtain a transcript of the oral evidence, and, under r 10.20(3) to inspect the documents in order to investigate the husband's tax position. Wilson J. weighed the public interest of due payment of tax and punishment of tax evaders against the public interest in parties in ancillary relief applications making full and frank disclosure of their resources. He refused the application. In 1998 Wilson J. heard a similar application where the Inland Revenue had received a copy of the transcript of a judgment delivered by him in chambers in ancillary relief proceedings, in R v R (Disclosure to Revenue) [1998] 1 FLR 922. In that case upon receipt of the judgment the Inland Revenue made assessments based upon the husband's undisclosed income. The judge held that the disclosure of the judgment given in chambers without leave of the court was irregular. He applied the same principles as set out in S v S above but on the facts in R v R gave leave to the Inland Revenue to retain the transcript of his judgment.

Charles J. in A v A; B v B [2000] 1 FLR 701 heard together the ancillary relief applications by two wives whose husbands were in business together. Consent orders were made after it became clear that both husbands admitted attempting to hide the true extent of their assets. Charles J. indicated his intention of disclosing the papers to the Inland Revenue and to the DPP and others. He gave a judgment setting out the appropriate response by the court to revelations of tax evasion or other tax impropriety. He referred to the duty on the parties to provide full and frank disclosure and cited Livesey Formerly Jenkins) v Jenkins and pointed out that parties do not have a choice as to what information they provide relating to their means and other relevant information. He said that such information, whether provided by affidavit, or in answer to questions, (before or after orders of the court), was provided under compulsion for the purposes of the application.

In each of the above cases, the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking. In order to achieve compliance with disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed. Munby J, in his judgment, did not suggest to the contrary. He also pointed out that the 1926 Act, (as amended in 1968) protects ancillary relief proceedings from press publication. This may be the case but we heard no argument on it.

The implied undertaking extends, as the cases to which I have referred above show, to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction. In my judgment, the obligation to respect the implied undertaking will also be imposed by the court in cases analogous to ancillary relief and found in Part III of the 1991 Rules, (see for instance applications in cases of failure to provide reasonable maintenance or application to alter maintenance agreements, rr3.1;3.5).

Protection is given by the 1991 rules to information filed during the proceedings and the requirement for permission for such information or for the judgment to be provided to third parties, see for instance rr10.15;10.20. Confidentiality with regard to documents in children proceedings is in wider terms in r 4.23 than r10.20(3). None of these rules, is, however in my view, relevant to whether or not confidentiality continues between the parties after the case heard in private is over.

Cases under Part IV Family Law Act 1996

In the types of proceedings covered by the 1991 Rules, information about children cases is indisputably covered by privacy and secrecy and no information can be disclosed after the end of the case without the leave of the court. For the reasons set out above, I am satisfied that all cases involving issues of ancillary relief are also protected from publication by anyone without the leave of the court. There are however other family proceedings, of which the present appeal is an example, which are not, in my judgment automatically covered by secrecy, although they can be heard in private. Whether they are so protected, will depend upon the type of proceedings and whether they come within, or part of the information comes within, the ambit of section 12 or whether the administration of justice will otherwise be impeded or prejudiced by publication.

Section 36 of the Family Law Act 1996 provides a mechanism for a non-married partner to claim against the other partner for an order entitling him/her to the occupation of a dwelling-house in certain circumstances. It is analogous to applications between spouses also found in Part IV. Section 36(6) sets out the check list to be applied by the court:

" (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).

Mr Moylan submitted that the requirement for the court in section 36(6) to have regard to all the circumstances had the effect of extending the concept of confidentiality imposed by the court on all documents and information provided in applications under Part IV of the 1996 Act. I agree with Munby J. that that submission goes too far. It does not, in my view, follow that a hearing of a section 36 application which is in private, even one which is to some extent inquisitorial with the requirement that 'the court shall have regard to all the circumstances', is to remain for ever entirely confidential. Part IV applications do not necessarily come within section 12 nor is the element of compulsion, thereby triggering an implied undertaking, always present. In my judgment the court must look at the application before it and come to a conclusion whether that application falls within the ambit of section 12 or within the recognised categories of cases, those of children and ancillary relief issues, or whether there are other factors as a result of which, if the proceedings are not treated as secret, there will be prejudice to the administration of justice. Family proceedings are not and should not be seen to be in a separate category from other civil proceedings, other than in recognised classes of cases or in other situations which can be shown manifestly to require permanent confidentiality.

Parliament in the Contempt of Court Act 1981 has provided by section 11 exemption from disclosure in court:

"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."

This section gives statutory protection for non-disclosure of information which should remain secret, where, and only where, a court has the power to do so. This requirement takes the court back to the general principles and the recognised exceptions to them. It has not been the practice of the family courts in the past to apply this section, but there may be cases, as possibly the present appeal might have been, for the court hearing the case in private to decide whether any or even all the information should not be disclosed. It cannot properly be a blanket protection of non-publication in all cases heard in private in chambers under the 1991 Rules. It can however apply not only to the actual case before the court but also to groups of cases arising out of the same type of circumstances, see Lord Edmund-Davies in Attorney-General v Leveller Magazine (above). FPR r3.9 has no requirement to file evidence, unless the court requires it and makes an order. I would suggest, however, that in applications for occupation orders where there are children, the welfare of those children is likely to be a major issue or often the major issue. Consequently the section 12 exemption would be likely to apply. If the financial affairs of any of the parties have to be investigated, and bearing in mind the requirement that the court shall have regard to all the circumstances, that information, if required or likely to be required by the court, would probably be protected. The general principles of discovery would apply. It will however require the parties and the court to consider in each case whether the proper working of the administration of justice requires there to be continuing confidentiality after the end of the proceedings. That is, in my view, no bad thing.

Before the speeches in Scott v Scott set out in ringing tones the crucial importance of open justice it had already been a corner stone of the common law. The statutory framework, providing the procedures in civil and family cases, recognises the necessity to hold some proceedings in private and that there should be protection against publication of some of those proceedings. Such protection must be proportionate to the requirements of the administration of justice. It might be thought to be inconvenient and time-consuming to have to look at this problem in individual cases heard in private. There are groups of cases in which the answer is obvious and, in my view, there will only be a small number of cases, in particular under Part IV, where the advocates and the court may have to consider the point.

The European Convention for Human Rights.

In my judgment there is nothing in Article 6 of the European Convention for Human Rights which requires all cases, willy nilly, to be heard in open court. To hear them in private and to debar publication of the proceedings heard in private must be necessary in a democratic society and proportionate to that necessity. The European Court recognised in B v United Kingdom;P v United Kingdom[2001] 2 FLR 261 that the Article 6 requirement to hold a public hearing was subject to exceptions. The Court said at page 271, paragraph 37:

"….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 other argument raised both on appeal and below is the balancing exercise between the right to respect for family life and privacy in Article 8 and the right to freedom of expression in Article 10. It is widely recognised in European jurisprudence that the balance in children cases is in favour of confidentiality, see B v United Kingdom; P v United Kingdom above. The principles underlying the recognition of implied undertakings do not appear to me to breach the requirements of Article 10. I agree however with the analysis by Munby J. in paragraphs 151-153. Both in our domestic law and in compliance with the Convention, there cannot be a blanket approach. The balance between Article 8 and Article 10 was, in my judgment, correctly struck by Munby J.

In the present appeal, the Court has no information at all about the evidence which was adduced at the hearing in the county court, other than that reported in the newspapers. There is a blanket objection by the appellant to publication, based on the general premise that the case was heard in chambers and consequently must remain secret. On the information available to this Court and to Munby J. it was an issue of jurisdiction. How that issue could require 6 lever arch files of evidence, is baffling, but it is not my business to speculate. This appeal has to be decided on what the Court knows. Applying the principles which I have set out above, I can see no ground upon which, on the present facts, there cannot be publication of the proceedings. Although I consider, for the reasons set out above that he has expressed his general propositions too widely, I agree with the conclusions of Munby J. on the facts of the appeal.

Relief.

I also agree with Munby J. that, if I had found that the court had jurisdiction to grant relief to the appellant, this was, on the information available to us, not a case to grant an injunction against the respondent.

I would therefore dismiss the appeal and discharge the existing injunction.

Thorpe LJ.:

I have had the advantage of reading in draft the judgment of my lady, The President. I am in complete agreement with the first 51 paragraphs of the judgment in which she sets the scene and decides the first issue, issue A. I can add nothing in that regard. I also agree that this appeal should be dismissed. However, in view of the importance of the second issue on the appeal, issue B, I should like to add some views of my own.

The Historical Background

Following the enactment of section 46 of the Matrimonial Causes Act 1857 the tension between the principle of open justice and the consequent revulsion of respectable opinion at the salacious details of trials in the divorce court appearing in the popular press surfaced almost immediately. Prior thereto evidence in the ecclesiastical courts had been taken in private and private Acts of Parliament for divorce were rare. So it is evident that the application of the open justice principle to the new statutory remedy for divorce created an enduring problem. Legislative attempts to suppress the publication of evidence in divorce cases in the 19th century proved unsuccessful.

The judgment of the House of Lords in Scott v Scott was decided against the background of the 1912 Royal Commission on Divorce and Matrimonial Causes which had concluded that, although proceedings for divorce should continue to be heard in open court, some restrictions on publication should be introduced, if necessary by statute, enabling judges both to close the court and to prohibit reporting in the exercise of their discretion. That recommendation lay fallow for a decade. However the press coverage of the Russell case in 1922 and the Dennistoun case in 1925 propelled the passage of the Judicial Proceedings (Regulation of Reports) Act 1926. No doubt the aim of the statute was to strike a balance between the principle of open justice and the need to kerb reports from the divorce court for the protection of public morality.

For this brief review I have drawn exclusively on chapter 4 of Dr Cretney’s Law, Law Reform and The Family: Oxford: 1998 where the whole saga is traced with a judicious balance of scholarship and wit.

The objectives of the statute were partially achieved. Over the next almost 50 years the principal business of the specialist judges and practitioners in the Probate Divorce and Admiralty Division was the dissolution of marriage, all petitions being heard and determined in public, whether defended or undefended. Of course there were ancillary issues dealt with in chambers to settle disputes as to maintenance or as to children. These ancillary proceedings were always held in private and it was never doubted that publication of such private proceedings was prohibited. Of course where the chambers proceedings related to children, their exceptional character was never in doubt. It had been expressly recognised by the House of Lords in Scott v Scott [1913] AC 417 (for instance see the speech of Lord Shaw of Dunfermline at 482). As for maintenance hearings, they were, of course, ancillary to ‘judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation’ and therefore at least arguably caught by section 1(1)(b) of the 1926 Act.

However in and after 1970 law and practice changed almost out of recognition. Uncontested divorces are dealt with without any hearing at all, other than the formal pronouncement of decrees nisi en bloc. Contested divorces in open court are almost unknown. Specialist professional efforts are now largely devoted to proceedings under the Children Act 1989 or to ancillary relief proceedings. Of course there are many other lesser fields of litigation including enforcement and variation, wardship, adoption, injunctive relief, child abduction, declaratory relief and Inheritance Act claims. But it is self-evident that the 1926 Act no longer bites on the business of the courts in our modern family justice system.

Statutory enactments to reflect this almost total transformation are hard to find. Section 39(1) of the Children and Young Persons Act 1933 empowered any court in any proceedings to prohibit the publication of details relating to any child or young person concerned in the proceedings. The Administration of Justice Act 1960 introduced the restraints in section 12(1)(a) and (e) relevant to family proceedings. The Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 empowered the Court of Appeal to sit in private and, by section 2 extended section 1(1)(b) of the 1926 Act to proceedings under section 27 of the Matrimonial Causes Act 1973 and proceedings under Part III and under section 56(1) of the Family Law Act 1986. (I have not understood, but have not had time to research, what motivated the extension of the 1926 Act to cover these three relatively esoteric areas of the court’s statutory jurisdiction.) The Matrimonial Causes Act 1973 by section 48(2) re-enacted an earlier provision that evidence on the question of sexual capacity in nullity proceedings should ordinarily be heard ‘in camera’. Equally the Adoption Act 1976 made similar provision for proceedings under that Act.

It therefore seems to me that parliament has been sparse in its contribution to unravelling the question of what, if anything, may be extracted from family proceedings in private for subsequent publication. That may be because there seemed to be little need for parliament to legislate. In the family justice system the designation ‘in chambers’ has always been accepted to mean strictly private. Judges, practitioners and court staff are vigilant to ensure that no one crosses the threshold of the court who has not got a direct involvement in the business of the day. One of the parties may have formed a new relationship. But if the new partner has not party status in the litigation application must be made to the judge despite the obvious and direct involvement in the life of the family. This strict boundary has always been scrupulously observed by the press. Of course the judge always retains a residual discretion and, accordingly, a hearing in chambers may culminate in a judgment in open court. Alternatively the judge may make an abbreviated statement in order that the public interest in the proceedings may be at least partially satisfied.

This practice may have been supported by shifts in public opinion. In 1974 paragraph 4.408 the Report of the Committee on One Parent Families (the Fines Committee) recommended that the practice of hearing proceedings in private in the High Court should be extended to all hearings which the public interest did not decisively demand should be conducted in open court. In 1985 the Booth Committee considered that there was a powerful argument for private hearings of divorce suits.

However by the 1990s the pendulum was perhaps swinging in the other direction. The Cleveland Report (1988) urged a rationalisation of restrictions on reporting by the media and in 1990 the Calcutt Committee drew attention to the variety of different provisions in existence and recommended review. Accordingly in 1993, ‘as part of the Lord Chancellor’s rolling programme of reform of family law and business’ his department issued a consultation paper entitled ‘Review of Access to and Reporting of Family Proceedings’. The consultation paper was the work of a group from the LCD, the Home Office, the Department of Health and the Law Commission. The result was an extremely thorough and scholarly paper. After a brief introduction Part II endeavoured to summarise the current law over the course of 50 pages. Part III set out the rival arguments for open justice and privacy and Part IV set out the options for change. The final section headed ‘Summary and Consultation Points’ contained the group’s proposals. At paragraph 5.9 there is this:

"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."

More specifically under the sub-heading ‘Reporting’ the group stated at paragraph 5.13:

"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."

No doubt another impetus to publication of the consultation paper was the increasing influence of the European Human Rights Convention on our domestic law and practice. I believe that there were widespread responses to the consultation paper. Certainly the Family Division bench, of which I was then a member, submitted a paper supported by a substantial majority of the judges of the Family Division and the district judges of the Principal Registry. It is to my mind a matter of regret that the government did not carry this initiative forward. However, just as at the beginning of the decade family justice reforms made major demands, so in the second half of the decade were even greater demands made by the reform of the civil justice system. In recent years the family justice system has seemed something of a Cinderella. In reality the reforms as to access and reporting introduced in the wake of civil justice reforms have not been replicated in the family justice system. Certainly the judgment of Munby J in the present case has re-emphasised the uncertainties and inconsistencies in our law as to access to and reporting of family proceedings. Those difficulties and inconsistencies could, in my opinion, be resolved by government, particularly since much of the groundwork has already been done. The description of the law in relation to the reporting of family proceedings as being uncertain is made good by a study of page 118 of the consultation paper which seeks to reveal in tabular form the position as to the reporting of the individual types of family proceedings.

The horizontal divisions of the table into categories large medium and small refer to volume of business as established by judicial statistics. The table comes with a health warning that its statements ‘have, out of necessity, been simplified, and should not be relied upon as a wholly accurate picture of the law’. Until such time as the law can be clarified and rationalised to reflect current public policy issues, I would favour the minimum departure from the present well established and well tried practice. Of course the extent to which the present line can be held depends upon a review of the current law.

The Present Law

From all that I have written above it is obvious that I do not consider the present practice as to the reporting of family proceedings can be justified in every respect by reference to statute. However extensively the 1926 Act, as amended, and the 1960 Act are construed they cannot be held to cover all family proceedings, as the present appeal illustrates. Accordingly I advance a series of propositions.

The first is that family proceedings are easily distinguishable from civil proceedings in the other Divisions of the High Court. Speaking of ancillary relief proceedings in the case of Kelly v Corston [1998] QB 686, my lady the President referred to ‘the more inquisitorial atmosphere of family proceedings’. I believe that this means that in family proceedings the relationship between the court and the litigants is clearly distinguishable from the relationship between the litigants and the court in civil proceedings. In the latter the parties bring into the arena such material as they choose to bring together with such material as they may be ordered to bring during the development of the case. At the completion of that process the judge determines outcome applying the law to such facts as have been admitted or have been found proved. The determination of an ancillary relief application proceeds on a very different basis. First it is to be noted that litigants may not bring into the proceedings such material as they think fit. All parties are under a duty of full and frank disclosure, clearly recognised well before the advent of the statutory powers for equitable redistribution of assets on divorce. The duty was succinctly stated by Sachs J in the case of J-PC v J-AF reported at first instance in [1955] P 228 when he said:

"For a husband in maintenance proceedings simply to wait and hope that certain questions may not be asked in cross examination is wholly wrong.

In the light of this apparent misapprehension it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure."

Next it is important to draw attention to the words of section 25 of the Matrimonial Causes Act 1973. Sub-section 1 reads:

"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 ...."

Section 25A, introduced by amendment, states:

"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."

Thus the duty that parliament has cast upon the court must be matched by a duty on the parties to supply the court with the fullest relevant information. Once the statutory duty is engaged by the issue of an application for relief under sections 22A - 24A then both parties are under the duty of full, frank and clear disclosure. A breach of that duty forces the court to draw inferences, inferences which will inevitably be adverse to the party in breach of the duty. There is the clearest authority for the above propositions in the speech of Lord Brandon of Oakbrook in the case of Jenkins v Livesey [1985] 1 AC 424 at 436 when he said:

"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)."

In civil proceedings restrictions on dissemination of litigation material for ulterior purposes are usually put on the basis of an implied undertaking not to do so. However it is plain that the concept of the implied undertaking is founded on the duty to the court. In Prudential Assurance Company v Fountain Page Limited [1991] 1 WLR 756 Hobhouse J said at 774H:

"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."

Accordingly I have no difficulty in concluding that in the important area of ancillary relief, where the table confirms that the volume of business is large all the evidence (whether written, oral or disclosed documents) and all the pronouncements of the court are prohibited from reporting and from ulterior use unless derived from any part of the proceedings conducted in open court or otherwise released by the judge.

The authors of the review expressed the proposition that ancillary relief proceedings could be taken to be covered by the provisions of section 1(1)(b) of the 1926 Act namely:

"(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, ...."

The proposition seems to me to be inherently unsound. As I have indicated the primary business of the Probate Divorce and Admiralty Division in 1925 was the trial of divorce and nullity suits. Ancillary relief as we now know it was unknown. The exceptions provided in the sub-section are expressed in language that is only comprehensible by reference to the trial of divorce and nullity suits. The exceptions are incapable of application by adoption to a contested ancillary relief application held by a district judge sitting in his room at a family hearing centre anywhere in England and Wales. However the view expressed in the review was adopted by Munby J (see paragraph 68 of his judgment at [2001] 2 FLR at 846).

Before us neither counsel referred to the review and Mr Moylan did not address the status of ancillary relief proceedings by reliance on that paragraph of the judgment below. Accordingly my opinion as to whether or not section 1(1)(b) of the 1926 Act applies to ancillary relief proceedings must remain provisional. But even if the sub-section does apply to ancillary relief it will not prohibit either party from selling or otherwise releasing the judgment in reliance on the exception provided by section 1(1)(b)(iv). I therefore prefer to rest the regulation of the parties to ancillary relief proceedings on their duty to the court as I have explained above.

Of course Mr Price QC in his submissions made much of the decision in this court in Hodgson v Imperial Tobacco Limited [1998] 1 WLR 1056. In his judgment the Master of the Rolls nowhere refers to the Family Proceedings Rules or the practice in family proceedings or to any of the relevant authorities in the Family Division. Clearly the Master of the Rolls is delivering an important judgment clearly presaged one aspect of the wholesale reform of procedure in civil justice on which he was then engaged. He was well aware that at that time sweeping reforms of the practice in ancillary relief proceedings were well advanced. There is in my mind the clearest inference that the application of the judgment of this court was limited to civil proceedings.

Mr Moylan mounts an attractive argument that the language of parliament in Part IV of the Family Law Act 1996 is parallel to the parliamentary language in Section 25. He stresses the fact that section 36(6) replicates the obligations contained in section 25(1) and (2) to have regard to all the circumstances of the case and in particular to have regard to the matters in a statutory check list. Certainly sub-section (6) states that:

"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 - "

Within the statutory check list there then follows a number of specifics including:

"(b) The financial resources of each of the parties.

(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."

In my opinion it is strongly arguable that that language thrusts upon the court an obligation amounting to a duty to bring into account an extensive range of factors, many of them highly personal to the parties. The court’s ability to perform that duty must equally rest upon an obligation on the parties to make full, frank and clear disclosure of evidence on each of the sub-headings of section 36(6) as are relevant to the particular case. The court’s duty is equally engaged by the issue of the application. The respondent has a choice either to participate fully, discharging his consequential duty, or to risk the outcome of unopposed proceedings. For myself I would accept that submission were it raised by the present appeal. However section 36(6) is only engaged if the applicant satisfies the conditions set out in sub-section (1). It is my understanding of the issue decided by His Honour Judge Krickler that the appellant resisted the application on the grounds that the applicant could not satisfy sub-section (1) since the dwelling house in respect of which the order was sought was not:

"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."

Since the respondent to this appeal failed to prove that requirement contained in section 36(1)(c) the court never arrived at its obligation under section 36(6). In effect the appellant challenged the jurisdiction of the court successfully. That being the narrow issue I find it difficult to discern a sufficiently clear duty in the court to give rise to a corresponding duty on the parties to refrain from ulterior use of the litigation material.

I agree with the President that cases such as the present are likely to form relatively rare exceptions to the general rule. This case has attracted a great deal of interest and comment amongst the specialist practitioners. Insofar as they look to our judgments for clear signposts as to the way ahead, the best generalisation that I can offer for cases not involving children is that, wherever the nature of the proceedings is at least quasi-inquisitorial, the duty to the court will probably be discernible.

As my lady has pointed out the effect of CPR Rule 39(2) and the Practice Direction may be to put the restraints in civil proceedings on a higher plain than in family proceedings. The only class of proceedings that are truly cross boundary are claims under the Inheritance (Provision for Family and Dependants) Act 1975. For they may be issued either in the Chancery Division or in the Family Division. They specifically fall within the protection of CPR 39(2). It would be anomalous were the protection less in family proceedings. Therefore I have not found conclusion in this appeal either easy or satisfactory. That state of affairs only heightens the case for the resumption of the rolling programme for the reform of family law and practice.

I would not wish it to be inferred that I am opposed to change or an advocate for the present practice. There are strong arguments for the introduction of greater openness in family proceedings. There is strong evidence that a substantial section of public opinion would favour such a change. However the arguments for and against are complex and finely balanced, as the government’s consultation paper demonstrated. The resolution of those conflicting considerations must, in my opinion, be for government on an inter-departmental review.

The outcome of these proceedings seems to me far from satisfactory. A system that rigorously excludes the press from access to litigation material but permits the parties to disseminate it elsewhere may in some cases put a considerable monetary value on the litigation material. We have no knowledge of the respondent’s motives, but it would not be unreasonable to infer that amongst her motivation for her disclosure to the Daily Mail and her approach to the Hong Kong press was a desire for revenge or a desire to recoup the costs order before Judge Krickler. The appellant no doubt participated in the proceedings before Judge Krickler on the advice, or perhaps only on the assumption, that the proceedings were private and secure against wider dissemination. In that he has been disappointed.

Keene LJ:

I also agree that this appeal should be dismissed for the reasons given by the President and wish only to add a few limited comments on the issues in this case.

On the topic of hearings taking place in public or private, I would endorse the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified. Of course, in many cases in the Family Division, especially those involving children, there can be no doubt that the hearing should take place in private, and this situation is reflected in the Family Proceedings Rules, 1991.

I agree that those Rules are not ultra vires. Apart from any other consideration, the Rules do repeatedly allow the court a discretion as to whether it sits in public or in private. But in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private, and as and when a court comes to exercise its discretion on this matter it will, as a result of section 6 of the Human Rights Act, 1998, have to take into account Article 6(1) of the European Convention on Human Rights into account. It will not be possible in all cases to show that an application for an occupation order falls within one of the exceptions to Article 6(1) where the press and public may be excluded. That burden is likely to be particularly difficult to discharge where children are not involved.

So far as publication is concerned, I find myself in agreement with the description given by the President of the law applicable in litigation generally, including the legal principles governing the occasions when the implied undertaking arises. Applying those principles to proceedings in the Family Division, I accept that in ancillary relief proceedings such an undertaking would normally operate because of the duty on the parties to make full disclosure: Livesey (Formerly Jenkins) –v- Jenkins [1985] 1 AC 424. But the requisite element of compulsion to disclose will not exist in all family proceedings. I share the President’s view as expressed in paragraph 77 hereof that such an element will not necessarily exist in cases arising under section 36 of the Family Law Act 1996, merely because of the provisions of subsection 6 of that section. I doubt whether the duty of the court under that subsection to have regard to all the circumstances, including certain specified matters, creates in all circumstances a sufficient obligation and degree of compulsion on the parties to disclose information to give rise to the implied undertaking.

Order: That the respondent gets two thirds of the costs of the appeal. A set-off ordered in relation to the period before the legal aid certificate was granted and a set-off in respect of the costs of appeal.

(Order does not form part of the approved judgment)