Publish and be damned: Barclay v Barclay [2021] EWFC 40

Background

This case concerned an application to secure the publication of a financial remedies judgment and to report on the content of that hearing. The applicant was Lady Hiroko Barclay (‘Lady Barclay’) and the respondent was Sir Frederick Barclay (‘Sir Frederick’) (aged c. 86). Sir Frederick is well known as a businessman who, alongside his late twin brother David, had built up controlling interests in a number of household names including the Telegraph and Sunday Telegraph newspapers. Although heavily involved in the press through their interests in newspapers and magazines, the Barclays are known to value their privacy highly.

This matter came about as a result of Lady Barclay’s application for financial remedies following her divorce from Sir Frederick after a long marriage. The trial in this matter was heard by Cohen J (‘the judge’). These proceedings were heard in private in accordance with FPR Rule 27.10 and were attended by a number of accredited members of the media. At the start of the proceedings the judge imposed an interim reporting restrictions order (‘RRO’) which allowed the media to report only that the hearing was taking place before the judge, who the parties were and the identities of their legal representatives.

The judge said he had been concerned at the outset that the timeline of the trial might be derailed by arguments as to what might constitute ‘financial information’, following a decision of Mostyn J in Appleton v Gallagher & others [2015] EWHC 2689 (Fam). In that case Mostyn J had granted an injunction prohibiting the media from publishing any report of the case which referred to or concerned “any of the parties’ financial information whether of a personal or business nature” [my emphasis]. Accordingly, the judge held that he was prepared to hear applications from the media if they sought to publish matters raised at trial which arguably did not constitute the parties’ ‘financial information’. No such application was made during the trial.

The disclosure agreed between the parties

As a preliminary matter the judge noted that the parties had agreed that the final award and the open position of each party should be made public, and the judge duly set these out succinctly.

Lady Barclay had sought an award of £120m to be paid in 2 tranches over three months. She accepted that the rapid provision of these sums would justify her receiving less than a full sharing award after a long marriage.

Sir Frederick had offered Lady Barclay:

• 40% of the remaining loan notes due to him subject to the consent of the trustees of the trust which issued them, and in the meantime 40% of the net amount received by him from the trust by way of loan note redemption; and
• 50% of such receipts as he might receive from the relevant trustees of the equity in the yacht and in the family home.

The judge ordered Sir Frederick to pay Lady Barclay £100m (£50m in 3 months and the remainder in 1 year). The judge included a submission made on behalf of Lady Barclay that there was a risk that the effect of Sir Frederick’s offer, if accepted, could have been that Lady Barclay would receive nothing, since it relied on the trustees believing it to be in Sir Frederick’s interests to advance the relevant sums. It seems probable that this submission was one of the reasons why the award appears to have been substantially closer to Lady Barclay’s open position.

However, the agreement between the parties as to what could be disclosed went no further than this.

Sir Frederick’s position

Sir Frederick argued that there should be no further publication of any details relating to the proceedings. He put forward a number of submissions in support of this:

• The starting point for such proceedings is privacy.
• Any publication will lead to identification; even an anonymised / redacted publication would lead to identification.
• Sir Frederick is not a public figure and has never courted publicity.
• It is irrelevant that the Telegraph reports on the finances of others; these are public figures.
• This is not a case where there has been perjury or serious litigation conduct which could justify publication.
• There are concerns for other members of the Barclay family and the effect of publication on them.
• The judgment touches on Sir Frederick’s health; a matter of particular privacy.

Lady Barclay’s position

Lady Barclay argued that Sir Frederick had been criticised heavily in the judgment. She argued that his right to privacy did not in some way nullify her right to freedom of expression, specifically about Sir Frederick’s behaviour during the litigation. His conduct had removed his right to privacy and the public had the right to be aware of it.

Lady Barclay further argued that Sir Frederick was overstating the impact of publication on the Barclay family, particularly if his health issues were redacted. Indeed, she noted that the Barclays, whilst shy of public focus on their financial affairs, were nevertheless involved in ongoing, internecine litigation in the Queen’s Bench Division.

The media’s position

The representatives of the media, from Bloomberg and the Press Association, argued in favour of full disclosure, reasoning that only the publication of the whole judgment would allow the public to understand the case and the underpinning of the final award. Their arguments focussed on Sir Frederick’s status as a public figure about whom the public had the right to know. They juxtaposed Sir Frederick’s submissions in favour of privacy with the Telegraph’s record of publishing personal financial information about people such as MPs during the expenses scandal and celebrities caught using tax avoidance schemes, among others.

The wider family’s (the Interested Parties) position

The judge heard counsel on behalf of Sir David’s children, who were said to be concerned about any publicity which might affect their financial affairs.

The legal framework

The judge set out the relevant legal principles as summarised by Baker J (as he then was) in XW v XH (No.2) [2018] EWFC 44 at [4]:

• Open justice is a fundamental principle of the constitution, and the general rule is that hearings and judgments are public.
• Financial remedies proceedings are one exception to this and are usually conducted in private.
• The fact of proceedings being heard in private does not preclude publication of what happens in those proceedings.
• The quid pro quo of the full and frank disclosure demanded by financial remedies proceedings is that confidentiality attaches to all information disclosed therein. The recipient of such disclosure is under an implied undertaking not to use it for any other purpose.
• Such disclosure for any other purpose would amount to a breach of confidence and a contempt of court unless authorised by a judge.
• In considering publication the court has to balance the conflicting rights and interests under the ECHR, in particular Arts 6, 8 and 10.
• The same principles apply to the publication of judgments, albeit with the distinction that judgments are required to be published to some extent in order to aid the evolution of financial remedies law where the judgment would illustrate a particular principle or practice. This balance can usually be achieved by anonymisation / redaction.
• Judges may sometimes permit disclosure of a judgment without any anonymisation or redaction in some circumstances (e.g., serious misconduct by a party, where the details are already in the public domain), or simply disclose the fact of the proceedings with very limited detail.
• There may be cases where the details of a case are so unique that they could not be adequately anonymised or redacted and so cannot be published at all (the judge made note of the mysterious ‘Scottish case’ referred to by Mostyn J in WM v HM (Financial Remedies: Sharing Principle: Special Contribution) [2017] EWFC 25).
• Accredited members of the media may attend hearings unless the judge says otherwise. This does not change the fact that they are not permitted to report confidential and private information gleaned therein. There is some disagreement as to the application of the rules in this area and parties will often ask for a RRO.

The judge added that he considered that arguments relying on the distinction between proceedings in the Court of Appeal (almost always public and published) and at first instance were not persuasive. The point was that parties would know in each court how their privacy would likely be treated.

The judge then considered the circumstances in which the conduct of a litigant could disentitle him or her from privacy, drawing from the leading authority of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315. In that case members of a wealthy Greek shipping family had effectively perjured themselves by falsifying documents concerning H’s assets. The Court of Appeal held that H’s conduct had deprived him of a right to privacy and ordered the publication of the judgment with full identification.

Thorpe LJ had considered the alternatives to full publication, including redaction, anonymisation and the publication of a summary. He noted that in some cases the choice would really be between full publication and no publication at all, where none of the halfway house measures would be effective. The judge had been attracted by the idea of publishing a summary of the judgment but noted that this middle course was not supported by any party.

The criticisms made of Sir Frederick

The judge then went on to assess the conduct of Sir Frederick, to decide whether it amounted to conduct which could justify publication.

The judge made three main criticisms of Sir Frederick:

• Firstly, Sir Frederick had necessitated the instruction of a SJE by arguing that loan notes to which he was entitled, and which constituted the “vast bulk of his wealth” would not in fact be honoured due to some illiquidity in the underlying family businesses. The judge implied that this argument had found little sympathy with the court, and the overall outcome appears to attest to this.
• Relatedly, the judge was not impressed with the way in which Sir Frederick “ignored orders” made against him for the production of documents and the answering of questions in the context of this loan note argument. Sir Frederick also did not remunerate the SJE in a timely manner, which set back the trial timetable by 9 months.
• Finally, part of Sir Frederick’s available assets included a luxury yacht which was on the market for sale. The judge had made orders to control the sale and use of the proceeds, which Sir Frederick “completely ignored”. Instead, he sold the yacht and used the funds for his own purposes. The judge “regarded that behaviour as reprehensible”.

The impact of these findings on publication

The judge directed himself on the need to balance the right to privacy and the right to freedom of expression, finding that the right to privacy found in the FPR will prevail in normal circumstances.

He held that Sir Frederick’s misconduct did not plumb the depths of that seen in Lykiardopulo or in Veluppillai v Velluppillai [2016] 2 FLR 681. Moreover, Sir Frederick’s behaviour had likely damaged himself more than Lady Barclay, since this led “inevitably” to the judge’s rejection of the loan note argument. For Lady Barclay, Sir Frederick’s behaviour had probably only delayed the inevitable and had not affected the outcome.

The judge decided that this was not a case where an “all or nothing” approach was appropriate; “justice can be served by limiting the publication to the misbehaviour”.

Conclusion

Accordingly, the judge decided that he would not permit the publication of the substantive judgment. Moreover, the option of a summary had been overtaken by this application. Instead, the judgment of the disclosure application would be made public with some details of Sir Frederick’s “misbehaviour” retained.

The judge decided that, “[A]though I have been critical, indeed at times very critical, of aspects of the presentation by H of his case, these are largely acts of omission rather than commission and apart from delay have not significantly affected the outcome of the proceedings.”

He added that this decision did not mean that Sir Frederick was thereby “getting away with it”, since he had paid almost the entirety of Lady Barclay’s £1.6m in costs. Further, the judge remarked that Sir Frederick “is a public figure who should have been aware of the potential consequences of disobedience of court orders and his behaviour during the proceedings should not be allowed to pass completely under the radar.”

The judge noted that he did not consider that Sir Frederick’s interest in the Telegraph would justify in itself a different decision. Importantly, the judge had not heard any evidence as to the extent to which the owners dictated or influenced the content of the paper.

Somewhat confusingly, the parties took up diametrically opposite positions in relation to the RRO (dealing with the content of the hearing) to those taken with regard to the publication of the substantive judgment. Sir Frederick argued that if the judgment was made public (aside from the aforementioned health issues), there was no reason not to also make public everything said in the hearing. Lady Barclay argued that the RRO should remain in place and only the judgment be made public. The judge declined to delve into the “labyrinthine logic” of these positions and decided to keep the RRO in place.

Henry Pritchard, Pupil Barrister at 1 Hare Court