This was a big money case, assets for distribution £35,456,884 and the financial hearing is reported separately at [2022] EWFC 53 (and see short note at end).
In EWFC 52 (reporting restrictions), H applied for a reporting restriction order, alternatively an anonymity order.
In paragraph 2 of the report Mostyn J airs an early view ‘Each order, if granted, would constitute a derogation from the rule or principle of open justice.’
The compressed grounds on which H relied were Article 8, that H’s business interests would be prejudiced and most of the evidence filed by the parties was done so with a reasonable expectation that their anonymity would be preserved.
In an 11,650 word judgement Mostyn J referred to Divorce Rules, Matrimonial Causes Rules, Family Procedure Rules, RSC Order 32 r. 11 , and FPR 27 especially, approximately 25 cases, the writings of Daines Barrington in 1766, Jeremhy Bentham 1843 and others, especially quoting from Bentham:-
‘In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.’
‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial’
In conclusion the judge the judge said ‘On any view, the law regarding the openness of a financial remedy hearing which is not wholly or mainly about child maintenance is regrettably unclear and contradictory. Although the House of Lords in Scott v Scott definitively decided that a matrimonial case heard and decided in private gave rise to no secrecy about its facts, a general practice to the opposite effect has arisen, which practice was affirmed by the obiter observations in Clibbery v Allan. That general practice is currently reflected in the standard rubric and the routine anonymisation of judgments.’
‘It has been suggested that the Family Procedure Rule Committee should make rules which provide that:
"...where a [financial remedy] judgment is to be published, the names of the parties and the names of the parties children will not be included in the judgment - unless the court is of the view, having considered the applicable convention rights and any representations from the parties or other interested person or body, that it is appropriate for them to be named in furtherance of convention rights (and in compliance with the s6 HRA 1998 obligations of the court as public body).”
‘The problem with this proposal, as I pointed out in Xanthopoulos v Rakshina at [140], is that in order for such new rules to have teeth they would have to prescribe that it would be a contempt for any report of such an anonymised judgment to identify the parties or the children. Therefore, the new rules would make punishable as contempt something that is not presently so punishable. To make such rules would appear to be beyond the powers of the Rule Committee as conferred by ss 75 and 76 of the Courts Act 2003’
‘I therefore adhere to my view that to create a scheme providing for standardised anonymisation of financial remedy judgments will require primary legislation’.
Result. In this particular case the judge ordered restrictions regarding:-
i the naming of the minor children, the publication of photographs of them, identification of their schools or the place where they live;
ii the reporting of the content of the advice of jointly-instructed tax counsel and the court's consequential calculations of the value to be taken of certain potential tax liabilities of the husband; and
iii the reporting of the advice given to the husband of the risks he faces in the Irish litigation and the court's consequent calculation of the amount of potential damages to be taken into account.
The judge also ordered the provision at:
- i) in respect of the children will endure only for as long as at least one child is under 18.
- ii) the provisions at ii and iii will expire on 1 January 2026 unless earlier discharged.
Subject to these restrictions, he confirmed that members of the press may report anything contained in the skeleton arguments or heard by them in court, and may report the main judgment fully.
Further, subject to those restrictions, both parties can talk to whomsoever they please about the case. They may also show any documents produced by their opponent under compulsion to a journalist covering the case (e.g. Mr Farmer) but they may not show those documents to anyone else.
Clearly Mostyn J wants reform, and is in favour of openness !
Note on Gallagher v Gallagher [2022] EWFC 53 - this is good authority, if needed, that in a sharing case pre marital assets can be excluded from marital wealth for sharing, with the date for calculating marital assets being date of cohabitation ending with the day on which he heard final submissions. Both parties agreed that there should be equal sharing, a view with which the judge agreed. The judge applied a linear approach to the valuation of H’s compnay from date of inception to cohabitation. The case also alights upon making an application post single joint expert reports pursuant to Daniels v Walker 2000 EWCA (Civ) 508 - what’s that? do I hear you say ?
