Should financial remedy claims be heard in public or private, and what will the long-term consequences be for the rule of law?
In Appleton & Gallagher v News Group Newspapers and PA  EWHC 2689, Mostyn J gave News Group Newspapers (NGN) permission to appeal his decision. It is hoped the Court of Appeal will resolve the 'unhappy divergence of judicial approach'. Should financial remedy claims be heard in open court for the general public to observe? Or should they be held in private, with access only to accredited press officials working within tight reporting restrictions? What would the different outcomes mean for practitioners? How should the outcome affect future case management decisions?
An appeal in this case is designed to resolve a long-standing judicial debate. In recent years, that debate has been characterised by the conflicting indications of Mostyn J and Holman J.
The current positionThe privacy of financial remedy claims is determined primarily by FPR 27.10 and 27.11. FPR 27.10 states:
'(1) Proceedings to which these rules apply will be held in private, except -
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(2) For the purposes of these rules, a reference to proceedings held "in private" means proceedings at which the general public have no right to be present.'
The meaning attributed to both public and private is key to understanding the crux of this debate. Sitting in public allows the court to be observed by the general public at large. Anyone may enter and observe the administration of justice themselves. In a private hearing, though, para 5.1 of PD27B is clear that accredited members of the press may still attend. The general public are excluded. The press are limited in what can be reported. In W v M (TOLATA Proceedings: Anonymity)  EWHC 1679,  1 FLR 1513, Mostyn J was clear that any media reports of financial remedy proceedings are limited by Art 14 of the International Covenant on Civil and Political Rights 1966. Article 14(1) states:
'... any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.'
Should the man on the Clapham omnibus be allowed to observe proceedings for himself? Or should that man stay on his bus, learning of such proceedings through reports in his morning paper?
The historical debate
The debate as to how financial claims should be heard is not a new phenomenon. The conflicting pulls of public versus private hearings have been in contention for at least the last century. Mostyn J was at great pains to highlight this protracted history in W v W (Financial Provision: Form E)  EWHC 2254 (Fam),  1 FLR 494: sensationalist reporting in divorce cases reached a high water mark in Russell v Russell (1922). The successor to the title Baron Ampthill sought to divorce his wife for adultery, claiming they had not consummated the marriage prior to her pregnancy. His wife brought expert evidence in response, showing her hymen was only partly perforated (although they had used the same sponge once...). This caused the Judicial Proceedings (Regulation of Reports) Act 1926 to be introduced. The Act aimed to prevent press reports of such detailed evidence in the future.
Section 1 of the Matrimonial Causes Act 1858 already allowed a judge to sit in private when handling issues of trifling importance. (Such was the view of financial relief at the time.) From 1968 there was a positive obligation for financial relief to be heard in private. Until 27 April 2009 and the introduction of the FPR 2010, first instance financial remedy claims were heard in private.
Publicity in financial remedy claims is not a new topic for the Court of Appeal either. It was considered in Clibbery v Allen  EWCA Civ 45,  1 FLR 565. Lady Butler-Sloss concluded that the compulsion to provide full and frank disclosure to the court created an implied undertaking of confidentiality. That disclosure would not be used for any purpose other than the proceedings. Any authorised publication of the same would be a contempt of court. This applied both during and after the proceedings. Thorpe LJ noted that financial relief proceedings had always been held in private. There had been no question that publication of these proceedings was of course prohibited.
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