Holman J now sits almost exclusively in open court. He believes this is the default position for hearing matrimonial finances. He is the only member of the Family Division to do so. He first justified his position in Luckwell v Limata  EWHC 502 (Fam),  2 FLR 168, which he recently reaffirmed in Gray v Work  EWHC 834 (Fam). Holman J stated that, to him, FPR 2010, r 27.10 does not provide a presumption in favour of private proceedings, 'it is no more than a starting point'. His reasons for sitting in public are based on support for the rule of law, and the growing need for transparency in the courts. Holman J holds the publication of judgments to be insufficient to achieve the aims; it limits the public ear to what a judge chooses to say:
'It is only if the public are able to see and hear for themselves how the proceedings unfold in the courtroom, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability.'
Holman J enhanced his view in Fields v Fields  EWHC 1670 (Fam):
'... to permit the presence of accredited journalists, but then tightly to restrict what they can report, creates a mere illusion of transparency.'
The parties' distress at sitting in public was unable to:
'override the importance of court proceedings being, so far as possible, open and transparent. Court sits with the authority of the sovereign, but on behalf of the people and the people must be allowed, so far as possible, to see the courts at work.'
As much as Holman J has supported public hearings, Mostyn J has simultaneously taken the opposite view. In DL v SL  EWHC 2621 (Fam), he held that:
'Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle ... the process involves the extraction of highly personal and private information under compulsion which the recipient may not use save for the purposes of the proceedings: see Clibbery v Allen
[above] and Lykiardopulo v Lykiardopulo  EWCA Civ 1315,  1 FLR 1427
. Therefore, according to those authorities, the media may not report any such information without leave.'
It is apparent from this paragraph that the presence of the general public is out of the question.
Roberts J recently followed Mostyn J's approach in Cooper-Hohn v Hohn  EWHC 2314 (Fam),  1 FLR 19. She sat in private, granting an injunction to prohibit the press from publishing: any financial information from voluntary disclosure; replies to questionnaires; witness statements; oral evidence; or counsel's submissions. This material could only be reported to the extent it was already in the public domain.
Holman J claims sitting in public is a necessary component of the rule of law; under the Dicean conception it makes the law more accessible, and therefore easier to understand. Having contradicting judicial indications is certainly not advancing the rule of law. It does not assist practitioners' understanding, let alone the general public.
Public, private and settlement
So what difference does sitting in public or private make in practice? Holman J argues that, if a party does not want their case heard in open court, then the answer is to settle. This line of reasoning risks being short-sighted. A party concerned for their privacy is perhaps less likely to provide full and frank disclosure. Parties can be concerned to protect commercially sensitive information. When there are concerns over disclosure, the chances of settlement can tend to zero. It is very well using open court to encourage settlement if open court also risks the necessary disclosure required for such settlement.
Public, private and personal design
What, then, will the position for parties be if sitting in open court is validated by the Court of Appeal? When a case is likely to spark public attention, will a party have any options to prevent unwanted public attention?
The answer to these concerns is already open to parties: arbitration. Increasingly, high net worth clients need a system they can control. They need a dispute resolution service tailored to their specific needs. Where privacy is a serious concern to the parties, arbitration can provide a completely confidential process with no access to the press, no public and no court lists.
While private FDRs have grown in popularity, arbitration is regularly under-sold to clients. As privacy concerns continue to grow amongst high value financial relief claims, so too should the IFLA Arbitration Scheme.
Moving from the court process to arbitration may allay the fears of individual clients regarding their privacy. Yet this in itself raises a wider, more fundamental question: are we, in this way, inadvertently creating a two-tier adjudication system? Could we see in the future a fast-stream personalised arbitration process for those who can afford to have their individual needs met, while those who cannot remain where they are in a court system with no control over how their case may be heard? It would be easy to shrug off this concern: in light of cuts to public services, this is a fact of life. But what impact would such a two-tier system have on the rule of law?
Could we still claim to be all equal under the law?
Bethany Hardwick is a practising pupil barrister at 1 Hare Court, London. You can follow her on Twitter @BethHardwick3.