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29 JUL 2014

Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)

Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)
(Family Division, Roberts J, 7 July 2014)

[The judicially approved judgment and accompanying headnote has now published in Family Law Reports [2015] 1 FLR 19]

Financial remedies – Publicity – High net worth claim – Application by media to report on proceedings – Husband sought to restrict reporting of financial matters

Please see the attached file below for the full judgment.

The husband had enjoyed a successful career as a hedge fund manager and the couple had built up very considerable wealth during the marriage which had been channelled into a foundation which was one of the largest private charities in the world which held assets of several billion dollars. The wife was a philanthropist and had been involved from the outset with the operation of the foundation. Together they had personal wealth of $1.3b.

When the husband and wife separated the wife sought half of the assets but the husband claimed she should be awarded 25% based upon an assertion that the generation of wealth of this magnitude constituted a special contribution which justified a departure from might ordinarily be the starting point of equality.

The case had attracted widespread media attention due to the extent of the assets and the fact that this was likely to be the largest divorce settlement in history in the courts of England and Wales. The hearing was being held in private but accredited members of the press had been present in court. An application was made on behalf of the media seeking permission to report an account of the proceedings as they unfolded on a day-to-day basis.

The wife adopted a position of neutrality on the reporting issue aside from seeking a restriction of reporting of the identities of the children, their school and home addresses. The husband also sought to prevent reporting of the identities of the children and of commercially sensitive and confidential material relating to his business but no formal application was made.

The husband and wife were both protective of their private lives and although their work had made them public figures, they did not have a ‘celebrity’ level of notoriety. Prior to the commencement of the proceedings the husband had the wife and both of their respective legal and non-legal advisors (18 named individuals in total) sign a stringent and wide-ranging confidentiality agreement imposing confidentiality of all information supplied for the purposes of the financial proceedings.

FPR 27.11(3) permitted accredited members of the press to attend private financial remedy proceedings. Neither that rule or Practice Direction 27B provided explicit assistance on the extent to which the press could report what was heard in court. The President had recently grappled with this issue in Rapisarda v Colladon [2014] EWFC 1406 and concluded that s 1(4) of the Judicial Proceedings (Regulation of Reports) Act 1926 conferred on him a discretion to authorise the publication by the media of a report of the whole proceedings.

The judge held that there was an implied duty of confidentiality between the parties and the court notwithstanding the rule changes, which was in accordance with the obiter views expressed by Mostyn J in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam). There was a core privacy which attached to the special class of financial remedy proceedings which were actually held in private and designated as such under FPR 27.10. If that were not the case it would lead to the complete emasculation of that core privacy if the press were held to have an unfettered right to report in full anything and everything which they heard during the course of the hearing in advance of the judge reaching any conclusions which might subsequently be recorded in a formal judgment, anonymised or not.

While the principle of open justice remained as relevant in the Family Division as it did in others, the courts had consistently recognised that financial remedy cases heard in the Family Division involving very real and legitimate expectations of privacy and confidentiality for the family, fell into a special category. However, the blanket restriction sought by the husband went too far.

There was a real concern that fear of publication might constrain the husband’s ability to provide full and frank disclosure in the proceedings. There was also the possibility that his evidence would touch upon several areas of commercially sensitive information which would impact not only upon his own business but also that of third parties who would not have the opportunity to make representations to secure their own positions.

The husband had a legitimate expectation that confidence would be respected in what were essentially private proceedings and as the Court of Appeal confirmed in Lykiardopulo v Lykiardopulo private proceedings did not breach Art 6 of the European Convention.

In conclusion the policy considerations which had been unaffected by the rule changes in the FPR 2010 represented an entirely justifiable interference in the Art 10 rights of the media which was entirely proportionate to the issues at stake. Those rights might, in any event, be met in due course by the handing down of an unanonymised judgment. Breaching the confidence attached by the parties and the court to the financial disclosure would not assist the public at large or enhance public understanding of the family justice system.

The balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, insofar as it related to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, fell firmly in favour of privacy in relation to financial matters being maintained. A reporting restriction order would be made in the terms of the draft prepared by counsel.

The fully referenced, judicially approved judgment and headnote will appear in a forthcoming issue of Family Law Reports. A detailed summary and analysis of the case will appear in Family Law.

Neutral Citation Number: [2014] EWHC 2314 (Fam)
Case No: FD 12 D 01549


Royal Courts of Justice

Date: 07/07/2014


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(Computer aided transcript of the Stenograph Notes of Marten Walsh Cherer Ltd., 1st Floor, Quality House, 6 9 Quality Court, Chancery Lane, London WC2A 1HP. Telephone No: 020 7067 2900. Fax No: 020 7831 6864 e mail: info@martenwalshcherer.com)

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MR. MARTIN POINTER QC, MR. GEOFFREY KINGSCOTE and MR. ADAM WOLANSKI (instructed by Mishcon de Reya) for the Applicant
MR. LEWIS MARKS QC, MS. ELIZABETH CLARKE and MR. GUY VASSALL ADAMS (instructed by Withers LLP) appeared for the Respondent

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Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam)
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