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The debate surrounding transparency and a move away from privacy in financial remedy proceedings is not necessarily a new one, but in recent months there have been significant developments which suggest that change may now be on its way.
The current position was summarised by Lord Justice Stanley Burnton in Lykiardopulo v Lykiardopulo [2010], where he stated that 'the general practice of the Family Division is for judgments in ancillary relief cases not to be published, or if published to be anonymised. That is done out of respect for the private life of the litigants and in order to promote full and frank disclosure, and because the information in question has been provided under compulsion.'
Journalists or legal bloggers may be given permission to attend hearings and can name the parties and publish, in very general terms, an outline of the case as well as any information that is already in the public domain, but may not view any documents filed or publish confidential financial information, unless given permission by the court.
In October 2021 however, Mr Justice Mostyn and His Honour Judge Hess published a joint 'Consultation on a Proposal for a Standard Reporting Permission Order in Financial Remedy Proceedings'. The authors suggest that the current system, whereby a journalist may attend any hearing but may not report much of what they observe, is not sustainable and runs counter to the promotion of public confidence in the Family Justice System. It is said that the time has come for accredited media representative to be able to attend hearings and publicly report what they see and hear, subject to clear rules, which would maintain anonymity of children and families and keep intimate details of the private lives confidential.
A draft standard 'Reporting Permission Orde' is included in the consultation document, which it is proposed should be issued as a standard step following the making of an application for Financial Remedy. The order would be reviewed at the First Appointment, and would allow legal bloggers and journalists permitted to attend to view certain documents and publish details of the finances – something they are not currently allowed to do.
Very soon after the publication of this consultation came the case of BT v CU [2021]. Mr Justice Mostyn set out that his default position for future cases would be to publish financial remedy judgments in full and without anonymisation, save for the identities of children. In doing so he drew parallels to civil proceedings which intrude into the private lives of the parties, which did not result in anonymised judgments and took the view that financial remedy proceedings should no longer be a ‘special class’. He also referred to the ‘divergence in practice’ when compared to appeal judgments, which are not anonymised.
Very soon after this case, Mr Justice Mostyn re-stated his position and elaborated on his reasons in A v M [2021] EWFC 89. He reviewed the history of how Financial Remedy judgments came to be anonymised as standard practice and noted that that there is, in actuality, no established right to anonymity and nothing in case law or statute which justifies this as being the norm. Full publication should be become standard practice with any derogation from this being justified on the specific facts, with Mr Justice Mostyn again citing the 'modern recognition of the vital public importance of transparency'.
Unsurprisingly there have been objections from some following the comments of Mr Justice Mostyn in these cases. The primary objections are that financial remedy proceedings involve private and often sensitive matters, which justify anonymisation. As Mr Justice Mostyn points out though, this is the case with many types of litigation where anonymisation is not standard practice, including family litigation in other divisions. Some have suggested that despite continued anonymisation of children, they will be easy enough to identify if the parents are named. It is also argued that disclosure of private family information will have significant impact on individuals with public profiles.
Others point to the fact that large amounts of ongoing disclosure is required under compulsion in financial proceedings - though again this is not unique to financial remedy litigation - and the proposed Reporting Permission Order could also be used to deal with certain documents and information which may not be published. The precedent order with the consultation paper includes in this category financial information given under compulsion.
A key advantage to this new approach could be that it will encourage parties to make greater use of Alternative Dispute Resolution, such as arbitration, in order to protect their privacy, therefore reducing the backlog of cases in the courts which has only worsened since the start of the Covid-19 pandemic. Mr Justice Mostyn has indeed suggested that if the result of this new approach is a reduction in the number of people litigating, then that is an added benefit, to a practice which will also bring financial remedy proceedings more into line with other types of litigation, meaning it no longer operates on a 'desert island.'
For many, and ostensibly from the perspective of Mr Justice Mostyn, the question is in fact not whether the positives outweigh the negatives enough to alter this standard practice, but whether there is any reason why it should have been adopted in the first place. They ask if there is any real justification for the financial remedy courts continuing to operate at odds with other courts.
Clients will need to be advised on this issue when considering whether to start court proceedings where any judgments might be published without anonymisation, and to discuss with their advisors the Alternative Dispute Resolution approaches which offer far greater privacy.
Written by Mike Finnegan, Associate in the Family Law team.
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