More Transparency in the Financial Remedies Court

Hard on the heels of the CONSULTATION ON A PROPOSAL FOR A STANDARD REPORTING PERMISSION ORDER IN FINANCIAL REMEDY PROCEEDINGS published by Mostyn J and HHJ Hess, the FRC Lead Judges, and animated by the same acknowledgement of the need for more transparency in FRC, come two important judgments by Mostyn J on the same subject: BT v CU [2021] EWFC 87, paras 100-114, and, in quick succession, A v M [2021] EWFC 89, paras 101-106.

The very welcome headline message is clear and unequivocal (A v M, para 104):

“In step with the modern recognition of the vital public importance of transparency, my default position for the future will be to publish my financial remedy judgments in full without anonymisation, save as to the identity of children. Derogations from that default position will have to be distinctly justified.”

“Justified”, that is, as spelt out in BT v CU, para 113, “by reference to specific facts, rather than by reliance on generalisations.”

Mostyn J explained his thinking (BT v CU, paras 103-105) as follows:

“103 … I accept that the current convention is that a judgment on a financial remedy application should be anonymised, although the decision whether to do so reposes in the discretion of the individual judge. Mr Chandler has cited the judgment of Thorpe LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79] where anonymisation is described as the “general practice” justified by reference to respect for the parties' private lives, the promotion of full and frank disclosure, and because the main information is provided under compulsion.

104 The move to transparency has questioned the logic of this secrecy. Almost all civil litigation requires candid and truthful disclosure, given under compulsion. The recently extended CPR PD51U – Disclosure Pilot for the Business and Property Courts – contains intricate and detailed compulsory disclosure obligations. Para 3.1(5) requires parties “to act honestly in relation to the process of giving disclosure”. Many types of civil litigation involve intrusion into the parties' private lives. Yet judgments in those cases are almost invariably given without anonymisation.

105 I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment. In my opinion it is another example of the Family Court occupying a legal Alsatia (Richardson v Richardson [2011] EWCA Civ 79, [2011] 2 FLR 244, para 53, per Munby LJ) or a desert island “in which general legal concepts are suspended or mean something different” (Prest v Petrodel Resources Ltd and others [2013] UKSC 34, [2013] 2 AC 415, para 37, per Lord Sumption).”

He went on (para 109): “it is time for [the convention] to be abandoned.”

Mostyn J bolstered the argument by pointing out (paras 106-108) the practice in relation to appeal judgments, whether the appeal is to a High Court Judge or to the Court of Appeal, of granting anonymity in such judgments only in rare cases where the specific facts warrant it. This, as he pointed out, makes “secrecy … even more difficult to defend”, indeed, “impossible to defend.”

The decision in BT v CU was not greeted with universal acclaim. One commentator gently chided us for not explaining our references to Alsatia, helpfully providing a link to a most useful and seemingly accurate explanation in Wikipedia. Others were more sceptical.

In A v M, paras 105-106, Mostyn J elaborated his reasoning:

“105 There seems to have been a certain amount of surprise caused by my decision in BT v CU to abandon anonymisation of my future financial remedy judgments. Views have been expressed that I have snatched away an established right to anonymity in such judgments. This is not so. I do not believe that there is any such right. My personal research tells me that before the 1939 - 1945 War, and indeed until much more recently, there was no anonymity in the Probate Divorce and Admiralty Division (‘PDA’), children and nullity cases apart, and even then only sometimes. For example, there is no example after 1858 of a first instance judgment in a variation of settlement case being published anonymously until as late as 2005 when N v N and F Trust [2005] EWHC 2908 (Fam), [2006] 1 FLR 856 was reported in that form. Even in nullity cases a general rule that they should be heard in camera was unlawful: Scott v Scott [1913] AC 417, HL. That case, far from being a paean to PDA exceptionality, is, in truth, precisely the contrary. It is a clear statement (to adopt modern metaphors) that the PDA was neither Alsatia nor a desert island: see Earl Loreburn at 447, where he succinctly stated:

“… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”

See also, to the same effect, Viscount Haldane LC at 434, 436; Earl of Halsbury at 443; Lord Atkinson at 462–463; and Lord Shaw of Dunfermline at 469, 475 and 478–480.

106 It is therefore difficult to understand how the practice arose of routinely anonymising ancillary relief judgments given in the Family Division (the successor to the PDA) or in the Family Court proceeding at High Court judge level. So far as I can tell, it is traceable back to the provisions in the Matrimonial Causes Rules (`MCR') that made the Registrar the usual first instance judge – see for example rule 77(1) of the 1973 rules which stated that “on or after the filing of a notice in Form 11 or 13 an appointment shall be fixed for the hearing of the application by the Registrar.” The Registrar always sat in chambers. Rule 78(2) allowed an application to be referred to a judge, and rule 82(2) provided that the hearing of a referred matter “shall, unless otherwise directed, take place in chambers.” I believe that the earlier versions of the MCR said the same. It is to this banal provision that all the secrecy that has surrounded financial remedy judgments can probably be traced, although routine anonymisation of first instance judgments does not seem to have taken hold until the 1990s. So far as I can tell, the practice of anonymising judgments given by High Court judges is explicable only by reference to the hearing having been in chambers and behind closed doors. But that of itself would not explain the adoption of the practice as a chambers judgment is not secret and is publishable whether or not anonymised: see Clibbery v Allan and Another [2001] 2 FLR 819 at [24] – [33], [74], [117] – [118] and [150]. I have not been able to discover any statement of practice made at any time before Thorpe LJ's judgment in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 (at [45] and [79]) explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all ancillary relief judgments given by High Court judges. That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island.”

It seems to me, if I may be permitted to say so, that Mostyn J is entirely correct, in his history, in his analysis and in his conclusion. His judgments in these two cases should be welcomed, accepted and applied by all.

One commentator has pointed out that Mostyn J’s reasoning in BT v CU and A v M is the complete opposite of what the same judge had previously said, twice, in W v M (TOLATA Proceedings: Anonymity) [2012] EWHC 1679 (Fam) and then in DL v SL [2015] EWHC 2621 (Fam). But those cases concerned the question of what matters members of the press attending a hearing pursuant to FPR 27.11 could report, and whether there should be anonymisation of the proceedings. They did not concern the question of anonymisation of judgments. There is a difference between the two. The question of anonymisation of the proceedings is the very subject matter of the Consultation Paper.

The issue is not that Mostyn J has changed his mind about anonymisation of judgments – as he explicitly accepts that he has: BT v CU, para 105. A judge is always entitled to revise his earlier thinking, not least to take account of changes and developments in the legal landscape. The question, put starkly, is whether he was right then, and is wrong now, or whether he was wrong then and is right now. We should all agree that, whatever his earlier thinking, Mostyn J has provided clear and compelling justification for his most recent views, views which, I suggest, are well founded in both history and principle. He is, if you like, recanting old heresy rather than descending into new heresy.

What are the objections? In substance, there seem to be two: first, that cases in the FRC involve private and sensitive matters which properly justify the anonymisation of the parties; secondly, that such cases involve massive and ongoing compulsory disclosure.

The short answer to the first is, surely, that this is true of many types of litigation, including family litigation in the other Divisions, where anonymisation is virtually unheard of. Anonymisation must be a matter of principle, not sentiment. Is it to be granted merely out of feelings of delicacy, or because the case may be painful or humiliating to the parties? If that were enough, one wonders how many cases in any Division would end up not being anonymised.

In other Divisions the principles to be applied on an application for anonymity are tightly prescribed; see the judgment of Lord Neuberger MR in H v News Group Newspapers Ltd (Practice Note) [2011] EWCA Civ 42, [2011] 1 WLR 1645, para 21:

“(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2) There is no general exception for cases where private matters are in issue.

(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the article 10 rights of the public at large.

(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family’s right to respect for their private and family life.

(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8) An anonymity order or any other order restraining publication made by a judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.”

Why should different principles apply in the FRC? It is not as if the Article 8 rights of the parties in a financial remedy case are somehow qualitatively different from those of the parties in, say, a family dispute about the ownership of a company or the distribution of an estate.

The short answer to the second objection is twofold.

First, that the continuing obligation to give disclosure is not a unique feature of financial remedy litigation. As Mostyn J pointed out, all civil proceedings incorporate such a duty. Castle Water Ltd v Thames Water Utilities Ltd (Practice Note) [2020] EWHC 1374 (TCC), [2020] WLR(D) 337, explains that para 3.1(2) of CPR PD 51U imposes a continuing obligation on the parties, once proceedings have commenced, to disclose “known adverse documents”, regardless of any order for disclosure made, unless they are privileged. Is that materially different to the continuing duty of full and frank disclosure in financial remedy proceedings?

Secondly, that the reportability of materials disclosed under compulsion has nothing to do with the question of anonymisation of a judgment. The fact that there has been disclosure under compulsion will typically justify the grant of a Reporting Publication Order of the kind recommended in the Consultation Paper; but how can it justify the anonymisation of the parties?

Those who wish to controvert what Mostyn J is now saying must do so by addressing the detail of what he is saying – which is why I have set the relevant passages out in full – and then coming up with an equally compelling counter-argument; an argument based on principle and not on a sentimental attachment to an allegedly established practice which is, in truth, of surprisingly recent origin.

For those for whom anonymity is essential, there is, as has been pointed out, the ready availability of arbitration as an alternative to litigation. As one commentator has noted, BT v CU “may prove to be a further shot in the arm for arbitration in relation to those who do not wish their financial issues to be aired in public.”

James Munby

16 November 2021