England and Wales Family Court Decisions (High Court Judges)

Neutral Citation Number: [2018] EWFC 44

Case No: ZC15D04000

IN THE FAMILY COURT

IN THE MATTER OF THE MATRIMONIAL CAUSES ACT 1973

AND IN THE MATTER OF THE SENIOR COURTS ACT 1981

AND IN THE MATTER OF THE HUMAN RIGHTS ACT 1998

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 19 June 2018

Before :

THE HONOURABLE MR JUSTICE BAKER

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Between :

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Desmond Browne QC, Lucy Stone QC, Duncan Brooks and Caroline Addy (instructed by Stewarts Law LLP) for the Petitioner

Martin Pointer QC and Rebecca Carew Pole (instructed by Sears Tooth) for the Respondent

Hearing date: 26 February 2018

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Judgment Approved

This judgment was delivered in private.   The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the parties and members of their family must be strictly preserved.   All persons, including representatives of the media, must ensure that this condition is strictly complied with.   Failure to do so will be a contempt of court.

MR JUSTICE BAKER :

1.      On 21 December 2017, I handed down a judgment in these proceedings on the application by the petitioner (hereafter referred to as “the wife”) for a financial remedies order in divorce proceedings against the respondent (hereafter referred to as “the husband”). On 26 February 2018, I made an order consequential to my judgment. I understand that the wife has now filed a notice of appeal against my judgment and order.

2.      This judgment deals with a subsidiary issue following on from the hearing and judgment, namely separate applications by the parties for a reporting restrictions order precluding publication of information relating to the proceedings.

3.      The full background to the case is set out in my earlier judgment and need not be repeated. It is sufficient to say that the parties come from different foreign countries but have lived in England for many years; that they were married in 2008 and have one son who has significant health and developmental problems; that following the breakdown of their marriage in 2015 the wife petitioned for divorce, and that she pursued an application for financial remedies within those proceedings culminating in the judgment and order referred to above. Their story is therefore typical of countless other couples whose cases come before the family court. What makes their case unusual is that the husband is an extremely successful businessman. Although he is not himself a well-known public figure, his products are widely used by millions of people across the world. Representatives of the press have therefore appeared before me opposing the making of a reporting restrictions order. It is said on behalf of the press that it is in the public interest for them to be at liberty to report information about the proceedings.

4.      The law relating to reporting restrictions and the publication of judgments in matrimonial financial remedy proceedings has been considered in a number of recent reported cases. It is well known that there is a divergence of views amongst judges of the Family Division about whether applications for financial remedy orders should be heard in open court (see the discussion in DL v SL (Financial Remedy Proceedings: Privacy) [2015] EWHC 2621 (Fam)). In their written submissions in support of their applications for a reporting restrictions order, counsel for the husband and wife have referred to a large number of reported authorities. In my judgment, however, it is neither necessary nor appropriate to embark upon a further lengthy analysis of the law in this judgment. The principles as generally accepted by judges and practitioners can be summarised as follows.

(1)   Open justice is a fundamental principle of our constitution. The general rule is that hearings are carried out, and judgments delivered, in public. This fundamental principle, set out by the House of Lords in Scott v Scott [1913] AC 417, has been reiterated on numerous occasions.

(2)   There are, however, established exceptions to this general rule. Amongst those exceptions are proceedings in the family court. Such proceedings, including those concerning applications for financial remedies orders, are usually conducted in private: Family Procedure Rules (“FPR”) rule 27.10. 

(3)   The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings: Administration of Justice Act 1960, Clibbery v Allen [2002] Fam 261 paras 17 and 51; Norman v Norman [2017] EWCA Civ 49.

(4)   In financial remedy proceedings, however, there is an obligation on the litigants to give full and frank disclosure of all relevant matters. The quid pro quo of this obligation is the confidentiality which attaches to all information disclosed within the proceedings. The party receiving the confidential information is subject to an implied undertaking not to use it for any purpose other than within the proceedings in which the information has been disclosed. “Information disclosed under the compulsion of ancillary relief proceedings is … protected by the implied undertaking before, during and after the proceedings are completed” (per Butler-Sloss P in Clibbery v Allen, supra, para 72).

(5)   Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless authorised by the judge.

(6)   In deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings, and, if so, on what terms, the court has to balance the conflicting rights and interests under ECHR, in particular articles 6, 8 and 10, applying the well-established principles identified in the case law, in particular Re S (Identification: Restrictions on Publication) [2005] 1 AC 593. Importantly, the article 8 rights to be balanced include those of the children to the marriage as well as the parties themselves: K v L [2011] EWCA Civ 550, [2012] WLR 306 at para 26.

(7)   The same principles apply to the publication of judgments in financial remedy proceedings. But, as Thorpe LJ acknowledged in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at para 33:

“a distinction can be validly drawn between the privacy of the hearing and the privacy of the judgment. A judgment considering a point of law or practice has generally been released to the specialist series of law reports. There have been many first instance judgments so reported in addition to appellate decisions selected by the reporters. Without this collaboration between the judiciary and the reports evolution of ancillary relief law and practice by the judges would hardly have been possible.”

Thus in cases where there is a public interest in the publication of the judgment which explains or illustrates an aspect of the law or practice, the judge will normally give permission for it to be reported, but subject to anonymisation and redaction of sensitive or confidential information.

(8)   In some cases, the judge may authorise publication of the judgment without anonymisation or redaction – for example, where a party has provided false information to the court (for example, the Lykiardopulo case, supra), or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain (for example, McCartney v Mills McCartney  [2008] EWHC 401 (Fam)). In other cases where the parties are in the public eye, but the details of the dispute are not in the public domain, the court may authorise publication of the fact that they are engaged in litigation but restrain publication of detailed information relating to the proceedings (for example, Appleton v Gallagher [2015] EWHC 2689 (Fam)).

(9)   Although in most cases, confidentiality can be protected by publishing judgments in an anonymised and redacted form, there are some rare cases where the factual matrix is unique or so unusual that confidentiality can only be protected by withholding the judgment from publication altogether. One example is the judgment in the so-called “Scottish case” delivered by Mostyn J which has never been published but was subsequently cited by the same judge in WM v HM (Financial Remedies: Sharing Principle: Special Contributions) [2017] EWFC 25. As Mostyn J explained in the latter case at para 110,

“I have not given leave for that decision to be reported as the case is incapable of camouflage and were its details to be reported there may be adverse economic consequences.”

(10)      The principles set out above are unaffected by the change in the rules incorporated in FPR r.27(11)(2)(f) and Practice Direction 27B, under which duly accredited representatives of news gathering and reporting organisations are permitted to attend hearings in the family court unless the judge orders otherwise. I respectfully agree with the observations made by Mostyn J in Appleton v Gallagher, supra, at paras 12 to 14, DL v SL, supra, para 1, and again in L v L  [2015] EWHC 2621 (Fam) [2016] 1 WLR 1259 at para 1 that, whilst accredited representatives of the press may be present at the hearing, they are not permitted to report confidential and private information disclosed into the proceedings. It is fair to say, however, that there is some disagreement amongst judges and practitioners on this issue, and as a result the courts are not infrequently invited by the parties to financial remedy proceedings to make a reporting restrictions order.

The argument

5.      In this case the husband and wife have each filed an application for a reporting restrictions order. The husband’s principal argument is that this case is “incapable of camouflage” and that the court should therefore withhold the judgment from publication altogether. In the alternative, he proposes that the judgment be anonymised and significantly redacted, and that the court makes a reporting restrictions order preventing publication of any other information relating to the proceedings. The wife is said to be neutral on the question of whether the judgment should be withheld from publication altogether, but strongly supports the anonymisation and redaction of the judgment if published, and the making of a reporting restrictions order. The parties have reached a measure of agreement as to some of the details of the anonymisation and redaction, but there is a number of details about which they do not agree and invite me to resolve, in the event that I reject the husband’s principal argument that publication should be withheld altogether.

6.      The application for a reporting restrictions order is opposed by the media. Although no news organisation was legally represented before me, I had the benefit of written and oral submissions from Mr Brian Farmer of the Press Association. As always, the court is extremely grateful to Mr Farmer for his courteous and insightful observations.

7.      On behalf of the husband, it is submitted that this case falls into the same category as Mostyn J’s “Scottish case”. It is submitted that the background history of the family, and in particular the story of the husband’s company, is unique and so widely known and publicly available that there is a strong likelihood that confidentiality would be lost through the process known as “jigsaw identification”, meaning that those who read the judgment, however carefully anonymised and redacted, would be able to identify the family through linking the story with information already in the public domain. It is submitted on behalf of the husband that, if he, the wife, and their son are identified as a result of publicity concerning these proceedings, there will be a serious interference in their everyday life, both now and in the future. The emphasis in the submissions on behalf of the husband, as in those advanced on behalf of the wife considered below, is on the impact on the family. In oral submissions, Mr Pointer on behalf of the husband conceded that he could not identify any confidential information concerning the company in the judgment which, if published, would have any adverse economic consequences.

8.      Mr Pointer accepted that there are elements in the judgment which would be of interest to legal professionals specialising in matrimonial finance work. He submitted, however, that “the professional interest of a small clique of specialist practitioners is a far cry from bringing the information contained in the judgment within the general public interest. The professional interest of specialist practitioners is a relatively marginal factor to weigh in any balancing exercise.”

9.      In the alternative, Mr Pointer submitted that, as the wife had now filed a notice of appeal against my order, there should be an order prohibiting publication for the time being, pending the outcome of the appeal, with liberty to revive the matter if the appeal falls away. He described that as the pragmatic solution, given that any ruling by this court may be superseded by proceedings in the Court of Appeal.

10.  As stated above, the wife is said to be neutral on the husband’s principal submission, but strongly supportive of the alternative argument that, if published, the judgment must be carefully anonymised and redacted. It is the wife, through a statement filed in support of her application for a reporting restrictions order and in detailed legal submissions put forward by leading and junior counsel expressly instructed to represent her on this aspect of the case, who has taken the lead in identifying the particular ways in which it is said publication would be damaging to the family.

11.  In her statement, the wife draws attention once again to the particular circumstances of the parties’ son. He suffers from a rare genetic condition which increases the risk of developing various forms of cancer and in some cases leads to global developmental delay and autism. The wife states that details of his condition are not widely known amongst their friends. At his school, which the parents have carefully selected to meet his particular needs, enquiries from other mothers about his condition are answered by the wife with a very general response because she is concerned that other children may learn about it, and in particular, the possible effect on his life expectancy. She is understandably concerned that any discussion of this information may cause distress and harm to the boy and affect his relationships with his friends. She wishes to avoid any change in attitude towards her son in the minds of other parents or their children as a result of press coverage. Having carefully selected the school as a place where he can receive education and nurturing, she is worried that it would struggle to cope with intrusive press coverage and that his day-to-day life at school, from which he has benefited profoundly, would be put at risk. The wife is concerned about the possibility of direct press intrusion were the family to be identified as a result of publication of the judgment. She contends that such intrusion will be particularly harmful to their son, whom she described as being extremely outgoing and trusting and therefore very vulnerable to the approach of strangers. The wife’s protective attitude towards the parties’ son has led her to adopt a very cautious approach to social media. She has taken steps to ensure that his name is not available online. Although the husband, who as stated in the earlier judgment has devoted considerable time and funds to setting up a foundation to promote research into their son’s condition, has alluded to his son when speaking about the foundation, he has only done so in general terms.

12.  In addition to her concerns about the impact of publication on their son, the wife is concerned about the impact of press intrusion on her own life. She states that not many of her current friends know that she comes from a wealthy family. She is also concerned about the effect of publication of the judgment on her wider family. The hearing and judgment dealt at length with the financial affairs of her own family, in particular those of her mother who gave evidence in the course of the hearing and was subject to detailed and challenging cross examination. The wife reminds me that her mother, whom she described as a very private person, gave evidence about her financial circumstances only reluctantly in order to support the wife’s case, and that the experience caused her considerable distress. Her evidence included information about the family’s financial affairs which are unknown to some members of the family. Furthermore, the family is well known in the country where the wife was raised. Publication of an unredacted version of the judgment would lead to unwelcome publicity for the family in that country.

13.  For these reasons, it is proposed on behalf of the parties that any published version of the judgment should be redacted so as to remove any information likely to identify the husband, the wife and their son. It is the parties’ joint submission that this redaction should extend to all information likely to identify the husband’s company. Were that company to be identified through publication, it would inevitably lead to the identification of the husband and thus to other members of his family.

14.  In support of their client’s case on this issue, Mr Desmond Browne QC and Ms Caroline Addy stress that anonymisation alone will not suffice to protect the wife’s privacy or that of her child and that, as a result, it must be accompanied by targeted redactions to prevent jigsaw identification. They warn that the inclusion in the published judgment of seemingly anodyne information may inadvertently facilitate jigsaw identification. They cite, for example, the date and location of the parties’ marriage.

15.  So far as the balancing exercise is concerned Mr Browne and Ms Addy submit that the decisive factor in relation to the article 10 rights in this case is the nature of the contribution which publication would make to a debate of general interest. It is the wife’s case, supported by the husband, that knowledge of their identities will not add anything of value to the legitimate and ongoing public debate about the right way to divide assets upon divorce and the approach of the courts to this issue. They also stress the point identified above that the article 8 rights to be taken into account when conducting the necessary balancing exercise include those of the child as well as his parents. Given the very particular needs of this child, they submit that the balance in this case comes down clearly in favour of a substantial redaction of the judgment.

16.  In his written submissions, Mr Farmer stresses that the starting point should be the open justice principle, even though the proceedings are in private. He relies on the fact that, as mentioned above, there is currently disagreement amongst judges of the Family Division about whether financial remedy hearings should be conducted in private or in public, and that the case is taking place in what he describes as the wake of a transparency drive. He rightly points out that the wages of the judge and court staff are met by the taxpayer. Consequently, there is a public interest in knowing what a High Court judge in the Family Division is doing. He makes the point, of which this Court is only too well aware, that judges are hard pressed and that hearing dates are hard to find. Mr Farmer suggests that people might say that a judge’s time would be better spent dealing with cases involving vulnerable children rather than matrimonial disputes between rich people.

17.  Mr Farmer concedes that the husband in this case is not a public figure who is recognisable to the man in the street, but points out that he is a wealthy high-profile businessman who has made his money out of members of the public. There is therefore a public interest in his financial affairs. Furthermore, Mr Farmer rightly points out that the husband’s business activities extend to many other countries and that both parties originate from countries outside the United Kingdom. As a result, the case has an international dimension which is likely to attract the attention of media organisations in other countries. Since any order restricting reporting in this country will not extend beyond the jurisdiction, Mr Farmer submits that it would be unfair to “hobble” journalists in England and Wales when their colleagues outside the jurisdiction will be free to report whatever they like about the case. He rightly stresses the responsible attitude of the press in this country to the reporting of family proceedings which he contrasts with what he describes as the “irresponsible” foreign press and the uncontrolled activities on social media and the internet generally.

18.  Mr Farmer sought to assure me that he would not propose to publish information about the parties’ son, or even refer to the fact that they had a child at all. It was his case that other information about the case could be published in a way that did not cause harm to the boy, and that it was in the public interest for the media to be permitted to publish that information.

19.  In seeking to strike the balance between the competing rights in this case, I start by acknowledging the importance of the article 10 right to freedom of expression and the constitutional importance of open justice. But Parliament has decided that proceedings in the family court should normally be heard in private. Within the context of private financial remedy proceedings, the parties are required to give full and frank disclosure of all relevant matters, including details of their private financial affairs. Full and frank disclosure is essential if the court is to deliver justice in such cases. The guarantee of confidentiality is an important concomitant of the disclosure obligation. Accordingly, until Parliament decides otherwise, the family court at first instance must continue to take all necessary steps to respect the confidentiality of the parties and their circumstances.

20.  I respectfully disagree with the argument advanced by Mr Farmer that there is a significant public interest in the naming of the husband in any published version of the judgment. In fact, I conclude that there is little if any public interest in the exposure of the husband and his family and the issues which have been ventilated before the court in these proceedings. The fact that the husband is a successful businessman does not mean that his family life is entitled to less respect than that of anyone else. There is nothing in the conduct of either party in these proceedings that would justify such exposure. Neither party has been guilty of litigation misconduct which would justify the withdrawal of confidentiality.

21.  I agree with Mr Farmer that the public are entitled to be informed about the activities of the family courts and the workload of the judges. He is right in highlighting the question of whether it is appropriate to devote the limited judicial resources of the Family Division to financial remedy disputes between a rich husband and wife as opposed to complex child protection cases involving poor and vulnerable families. In fact, most family lawyers, and certainly most matrimonial financial specialists, would argue that children’s cases do receive rightful priority and that it is litigants in financial remedy proceedings that suffer from the delays caused by insufficient resources. Nevertheless, Mr Farmer is right to raise this issue. But in my judgment, the public interest in this aspect does not require the parties to be identified.

22.  For the reasons identified by Thorpe LJ in Lykiardopulo, there is a public interest in the publication of my earlier judgment which deals with a number of issues that arise in financial remedy cases, including the treatment of nuptial agreements on divorce generally and an Italian separazione dei bene in particular, the treatment of so-called “unilateral” assets, latent potential, and special contribution. These are matters of interest not just to “a small clique of specialist practitioners” but also to the community at large, in particular those who are or may find themselves in similar proceedings in future. I recognise, of course, that this case lies at one extreme end of the spectrum of financial remedy cases and that it may be thought that the decision is of little relevance to the vast majority of such cases in the family court, but for the relatively small cohort of “big money” cases the outcome of this case may have some relevance. A number of the issues that arose in the case – including foreign nuptial agreements, the identification and treatment of matrimonial and non-matrimonial assets, and special contribution – arise in cases where the value of the assets is much less than in this case.

23.  There is, therefore, a public interest in the publication of my earlier judgment. That interest does not, however, require the judgment to be published in a version which identifies the parties or other members of their family.

24.  In considering the article 8 rights in this case, the court bears in mind, as noted by Lord Neuberger of Abbotsbury PSC in PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, that

“claims based on respect for privacy and family life do not depend on confidentiality (or secrecy) alone. As Tugendhat J. said in Goodwin v NGN Ltd and VBN [2011] EWHC 1437 (QB) at paragraph 85, ‘the right to respect for private and family life involves more than one concept’. He went on to cite with approval a passage … in  The Law of Privacy and the Media, 2nd edition, 2011, Warby, Moreham and Christie [which] summarised the ‘two core components of the rights to privacy’ as ‘unwanted access to private information and unwanted access to [or intrusion into] one’s …personal space”, what Tugendhat J as characterised as ‘confidentiality’ and ‘intrusion’”.

As explained above, the article 8 rights which the parties enjoy in this case, as in all financial remedy cases, include the confidentiality that attaches to the information which they have been obliged to disclose within the proceedings. But the evidence establishes that the other component of the right to privacy – the right against unwanted intrusion into one’s personal space – also arises in this case. In particular, it is certain that identification of the parties would cause some intrusion into the life of their son, and it is significantly likely that the intrusion would be on a scale that would cause harm to this vulnerable boy. I accept the wife’s evidence as to the various risks of harm to her son that would arise were the judgment to be published in a form which identified the parties. For the reasons set out at length by the wife in her statement, and reiterated by counsel for both parties in their written and oral submissions, I am persuaded that there is a particular need in this case for the court to take all necessary steps to protect the family, and in particular the parties’ son, from the risk of identification. I accept that any reporting restrictions order made by this court will have no authority outside the jurisdiction, but it is within the jurisdiction that the need for protection of the child arises.

25.  If the judgment was published with simply the names of the parties and other family members removed, and only the information concerning the boy’s circumstances redacted, that would not be sufficient to eradicate the risk of identification. The detailed account of the history of the husband’s company would undoubtedly lead to jigsaw identification. Accordingly, any published judgment must be further redacted to exclude those details. I also accept that there is a number of other details in the judgment which must be removed from any published version so as to avoid the risk of inadvertent identification.

26.  I do not, however, accept the submission on behalf of the husband that this is a case which falls into the exceptional category which is “incapable of camouflage”. I conclude that, by redacting the judgment so as to delete from any published version the names of the parties, details of their son’s circumstances and condition, and crucially the history of the husband’s company, together with some other details identified by counsel, it will be possible to conceal the identity of the parties and other family members. It is true that a redaction of details on this scale may reduce the utility of the published judgment since it may obscure some of the detailed reasoning for the court’s decision on some of the issues, in particular the issue of special contribution. A substantial part of the judgment will, however, be published without redaction and I do not consider that publication of the anonymised and redacted judgment will be pointless.

27.  I am not attracted by the suggestion that a decision about whether to publish the judgment should be put off until after the determination of the proposed appeal. It is unclear how long the appeal process may take. So far as I am aware, decisions about whether a judgment at first instance should be published have not previously been postponed until after appeal.

28.  Accordingly, I conclude that, balancing the competing rights in this case, and having regard to the importance of those rights and the reasons for interfering with them, the article 8 right to respect for private and family life enjoyed by the parties and their child outweighs the article 10 rights engaged in this case, and that it is proportionate for this court to make a reporting restrictions order precluding the publication of any information relating to the proceedings, save for an anonymised and redacted version of my judgment dated 21 December 2017.

29.  The parties have submitted a schedule setting out areas of agreement and disagreement on the details of the proposed redactions. I shall respond by sending out a note setting out my decisions on the individual points at issue. For obvious reasons, it is neither necessary nor appropriate to include those comments in this judgment.

30.  The reporting restrictions order will be in the standard form used in the family courts. The order will be as set out below, which substantially follows the drafts submitted by the parties, albeit with some amendments. In particular, I have not included the so-called “public domain” proviso. As is now widely accepted, in cases where the article 8 rights under consideration include intrusion, so that the repetition of information will cause a further interference with the rights, it is appropriate to restrain the publication of information notwithstanding the fact that it is already in the public domain: PJS v News Group Newspapers Ltd, supra, per Lord Mance at para 32. It is of course right that, when considering whether to grant relief which might affect the exercise of article 10 rights, the court is obliged by s.12 (4)(a)(i) of the Human Rights Act to have regard to the extent to which the material has become available to the public.  In this case, although Mr Farmer informed me that there was some knowledge about the case amongst members of the media, there is no evidence of any substantive prior publication. In the circumstances, the public domain proviso would serve no useful purpose.

31.  The order will be as follows: