Mr Justice Morgan:
Introduction
This
judgment concerns applications which were made in
three
related claims. In each claim,
the
Claimant sought an order under section 1 of
the
Variation
of
Trusts
Act 1958 ("
the
1958 Act") approving an arrangement proposed
to
be entered into in relation
to
an existing
trust
on
the
grounds
that
the
arrangement was for
the
benefit of
the
minor beneficiaries under
that
trust
and for
the
benefit of future, yet unborn, beneficiaries under
that
trust.
The
three
trusts
are in similar
terms,
as are
the
proposed arrangements in each case.
- In each case,
the
claimant was
the
settlor of
the
trust
and in one of
the
cases
the
settlor was also a
trustee
of
the
trust.
The
principal defendants were
the
trustees
(or in one case,
the
other
trustees),
the
adult beneficiaries (who have consented
to
the
proposed arrangement) and
the
minor beneficiaries (acting
through
their
litigation friend).
The
substantive issues which arose under
the
1958 Act were
the
usual issues under
that
Act, namely:
(1) was
the
proposed arrangement a
variation
of
the
existing
trusts?
(2) was
the
proposed arrangement for
the
benefit of
the
minor beneficiaries?
(3) was
the
proposed arrangement for
the
benefit of
the
unborn beneficiaries? and
(4) should
the
court approve
the
proposed arrangement?
- Before
the
hearing,
the
parties had contacted
Chancery
Listing and obtained its agreement
that
the
cases would be listed for hearing in
the
Daily Court List with initials being used in place of
the
names of
the
parties.
- At
the
hearing, Mr Massey QC appeared on behalf of
the
Claimants, Mr Barlow QC appeared on behalf of
the
minor beneficiaries acting
through
their
litigation friend and Mr Rivett appeared on behalf of
the
trustees
who had rightly
taken
on
the
role of "watchdog" for
the
unborn beneficiaries: see Re Druce's Settlement
Trusts
[1962] 1 WLR 363 at 370. Each counsel had provided me in advance with detailed and
thorough
written submissions and I had been asked
to
do, and had done, extensive pre-reading of
the
documents before
the
court.
- At
the
beginning of
the
hearing before me, Mr Massey applied for
the
cases
to
be heard in private. I inquired whether
the
other counsel who appeared supported or opposed
this
application. I was
told
that
they
supported
the
application. I inquired whether
there
was anyone in court who wished
to
be heard on
the
application. Only
the
parties and
their
representatives were present. Although, as a result of pre-reading, I was doubtful whether I would ultimately direct
that
these
cases should be heard in private, in order not
to
pre-judge
the
issue, I directed
that
the
court would sit in private
to
hear
the
application for an order
that
the
substantive cases be heard in private. At
the
conclusion of
the
submissions on
the
application, I announced my decision which was
that
the
cases should be heard in open court but
that
it was appropriate
to
impose reporting restrictions as
to
the
proceedings. I indicated
that
I would subsequently give reasons in writing for my decision. I also indicated
that
the
written reasons would be in
the
form of an anonymised judgment.
- Following my ruling on
the
application, I sat in open court and heard submissions on
the
substantive issues. I was satisfied
that
the
proposed arrangement was a
variation
of
the
existing
trusts
within
the
1958 Act,
that
it was for
the
benefit of
the
minor beneficiaries and
the
unborn beneficiaries and
that
it was appropriate for
the
court
to
make an order approving
the
arrangement under
the
1958 Act. I
then
ordered accordingly.
This
judgment contains my reasons for my decision
that
the
cases should be heard in open court and
that
it was appropriate
to
impose reporting restrictions in relation
to
the
proceedings.
The
submissions
The
parties relied upon CPR 39.2(3). I will set out
the
whole of Rule 39.2 which provides as follows:
"General rule—hearing
to
be in public
39.2 (1)
The
general rule is
that
a hearing is
to
be in public.
(2)
The
requirement for a hearing
to
be in public does not require
the
court
to
make special arrangements for accommodating members of
the
public.
(3) A hearing, or any part of it, may be in private if—
(a) publicity would defeat
the
object of
the
hearing;
(b) it involves matters relating
to
national security;
(c) it involves confidential information (including information relating
to
personal financial matters) and publicity would damage
that
confidentiality;
(d) a private hearing is necessary
to
protect
the
interests of any
child
or patient;
(e) it is a hearing of an application made without notice and it would be unjust
to
any respondent for
there
to
be a public hearing;
(f) it involves uncontentious matters arising in
the
administration of
trusts
or in
the
administration of a deceased person's estate; or
(g)
the
court considers
this
to
be necessary, in
the
interests of justice.
(4)
The
court may order
that
the
identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order
to
protect
the
interests of
that
party or witness. "
The
parties relied in particular on sub-paragraphs (c), (d) and (f) of rule 39.2. It was submitted
that:
(1)
the
evidence in
the
three
cases revealed
that
the
value
of
the
assets of
the
trusts
was
very
high and much higher
than
was
typical
in a case under
the
1958 Act;
(2)
the
evidence disclosed information about
the
dividends policy of a company
the
shares of which were owned directly or indirectly by
the
trusts;
(3)
the
evidence as
to
the
dividends policy would indicate
the
levels of profit made by
the
company;
(4)
the
company was a private company and its customers and its competitors were generally not aware of
the
levels of profit made by
the
company;
(5) if
the
company's customers became aware of
the
levels of profit made by
the
company,
those
customers (some of whom were powerful enterprises) could squeeze
the
profit margins of
the
company;
(6) apart from
the
adverse commercial consequences for
the
company and consequentially for
the
trusts,
public knowledge of
the
value
of
the
trust
assets would create a risk as
to
the
personal security of both
the
adult and
the
minor beneficiaries;
(7)
these
cases involved uncontentious matters arising in
the
administration of
trusts.
- Counsel did not cite any authority as
to
the
principles I should apply in relation
to
the
application
that
the
cases should be heard in private. I indicated in
the
course of
the
hearing
that
I might reach
the
conclusion
that
the
reasons put forward were not sufficient
to
justify a decision
that
the
cases should be heard in private. However, I was concerned about
the
special position of
the
minor beneficiaries. I inquired whether it would be appropriate
to
impose some restrictions
to
safeguard
the
children
from
the
adverse consequences of
them
becoming aware at
too
early an age of
the
extent of
their
likely wealth and
to
protect
them
from friendships and relationships with others who were inappropriately influenced by knowing about
the
likely wealth of
the
children.
I inquired whether a reason of
that
kind would be accepted in
the
Family Division as a sufficient reason for hearing a case in private.
The
parties asked for, and I granted, a short adjournment
to
consider
that
matter and when
the
hearing resumed I was provided with a witness statement dealing with
that
matter and I heard further submissions. Mr Massey
then
cited
to
me Cooper-Hohn
v
Cooper-Hohn [
2014]
EWHC
2314 (Fam) and K
v
L [2011] EWCA Civ 550 in relation
to
the
practice in family courts and Mr Barlow cited
to
me Spens
v
IRC [1970] 1 WLR 1173 and Re
Trusts
of X
Charity
[2003] 1 WLR 2751 in support of a submission
that
Article 6 of
the
Convention for
the
Protection of Human Rights and Fundamental Freedoms ("
the
Convention") did not apply
to
applications under
the
1958 Act.
Private hearings:
the
legal principles
- Although
the
parties relied on CPR 39.2(3) as
the
governing rule,
this
provision is an exception
to
the
general rule stated in rule 39.2(1) which is
that
a hearing is
to
be in public. Rule 39.2(3) identifies a number of cases where a court may direct
that
a hearing, or a part of it, should be in private. Apart from
the
particular cases in sub-paragraphs (a)
to
(f) of rule 39.2(3),
the
rule ends with sub-paragraph (g) which refers
to
a case where
the
court considers it is necessary in
the
interests of justice
to
conduct
the
hearing in private.
- Rule 39.2 is
to
be applied against
the
background of long established common law rules as
to
the
fundamental principle of open justice and against
the
background of Articles 6, 8 and 10 of
the
Convention, set out in schedule 1
to
the
Human Rights Act 1998, coupled with section 12 of
that
Act dealing with freedom of expression.
These
rules have been
the
subject of a large number of highly relevant decisions over
the
decades. One can
trace
the
authorities from
the
leading case of Scott
v
Scott [1913] AC 417
through
R
v
Legal Aid Board ex parte Kaim
Todner
[1999] QB 966 (see, in particular, at 977)
to
a fairly recent discussion of
the
principles in Global
Torch
Ltd
v
Apex Global Management Ltd [2013] 1 WLR 2993, a case which concerned proceedings in
the
Companies Court.
The
authorities establish
the
following general propositions:
(1)
There
are
two
dimensions
to
open justice.
The
first is
that
the
public are entitled
to
attend court proceedings
to
see what is going on.
The
second dimension is
the
right of
the
media
to
report
the
court proceedings
to
the
public.
The
media should not be discouraged from publishing fair and accurate reports of court proceedings. In reality,
very
few members of
the
public attend court hearings so
that
the
scrutiny of court proceedings is performed by
the
media acting on behalf of
the
public.
(2)
The
hearing of cases in open court deters inappropriate behaviour by
the
court. It maintains public confidence in
the
administration of justice. It enables
the
public
to
know
that
justice is being administered impartially. It makes uninformed or inaccurate comment about
the
proceedings less likely.
(3) Court hearings
taking
place in public enable information
to
become available
to
the
public in a democracy. What goes on in
the
courts is inherently of legitimate interest, and real importance,
to
the
public.
(4)
The
fact
that
a hearing in open court may be painful, humiliating and a deterrent either
to
a party or
to
a witness is not normally a proper basis for departing from
the
open justice principle.
The
interest protected by
the
open justice principle is
the
public interest in
the
administration of justice rather
than
the
private welfare of
those
involved in court proceedings.
- Guidance as
to
how
to
apply
these
principles in practice was given in Practice Guidance (Interim Non-Disclosure Orders [2012] 1 WLR 1003 at [9] – [15], as follows (for convenience, I have removed
the
many references
to
cases other
than
Scott
v
Scott):
"Open justice
9 Open justice is a fundamental principle.
The
general rule is
that
hearings are carried out in, and judgments and orders are, public: see article 6.1 of
the
Convention, CPR r 39.2 and Scott
v
Scott [1913] AC 417.
This
applies
to
applications for interim non-disclosure orders … .
10 Derogations from
the
general principle can only be justified in exceptional circumstances, when
they
are strictly necessary as measures
to
secure
the
proper administration of justice.
They
are wholly exceptional … . Derogations should, where justified, be no more
than
strictly necessary
to
achieve
their
purpose.
11
The
grant of derogations is not a question of discretion. It is a matter of obligation and
the
court is under a duty
to
either grant
the
derogation or refuse it when it has applied
the
relevant
test
… .
12
There
is no general exception
to
open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and
to
the
extent
that
the
court is satisfied
that
by nothing short of
the
exclusion of
the
public can justice be done. Exclusions must be no more
than
the
minimum strictly necessary
to
ensure justice is done and parties are expected
to
consider before applying for such an exclusion whether something short of exclusion can meet
their
concerns, as will normally be
the
case … . Anonymity will only be granted where it is strictly necessary, and
then
only
to
that
extent.
13
The
burden of establishing any derogation from
the
general principle lies on
the
person seeking it. It must be established by clear and cogent evidence … .
14 When considering
the
imposition of any derogation from open justice,
the
court will have regard
to
the
respective and sometimes competing Convention rights of
the
parties as well as
the
general public interest in open justice and in
the
public reporting of court proceedings. It will also adopt procedures which seek
to
ensure
that
any ultimate
vindication
of article 8 of
the
Convention, where
that
is engaged, is not undermined by
the
way in which
the
court has processed an interim application. On
the
other hand,
the
principle of open justice requires
that
any restrictions are
the
least
that
can be imposed consistent with
the
protection
to
which
the
party relying on
their
article 8 Convention right is entitled. …
15 It will only be in
the
rarest cases
that
an interim non-disclosure order containing a prohibition on reporting
the
fact of proceedings (a super-injunction) will be justified on grounds of strict necessity, ie, anti-
tipping-off
situations, where short-
term
secrecy is required
to
ensure
the
applicant can notify
the
respondent
that
the
order is made … . It is
then
only in
truly
exceptional circumstances
that
such an order should be granted for a longer period … ."
- I have also considered
the
practice as
to
the
hearing of cases under
the
1958 Act. Shortly after
the
coming into force of
the
1958 Act,
the
question arose as
to
whether applications under
the
Act should be heard in open court. In Re
Chapman's
Settlement
Trusts
and Re Rouse's Will
Trusts,
reported
together
as a Practice Note at [1959] 1 WLR 372 at 375,
Vaisey
J stressed
the
importance of applications under
the
Act being heard in open court. He said
that
hearings in open court were necessary
to
ensure uniformity of practice and
that
the
variation
of
trusts
was a serious matter which ought not
to
be dealt with behind closed doors. In Re Byng's Will
Trusts
[1959] 1 WLR 375 at 381,
Vaisey
J said
that
there
was a rule
that
all applications for
the
variation
of investment clauses (whether under section 57 of
the
Trustee
Act 1925 or
the
1958 Act) were
to
be heard in open court unless
there
was a special reason
to
avoid publicity.
The
3rd Supplement
to
the
18
th
Edition of Lewin on
Trusts
at para 45-99 states
that,
following
these
decisions,
the
hearing was "generally in open court". Lewin discusses
the
1958 Act in
the
main work at paras 45-31
to
45-104 and numerous reported cases are cited where
the
reports give
the
names of
the
parties and
the
details of
the
case.
There
are
three
cases cited where
the
report is anonymised;
these
are Re
T's
Settlement
Trusts
[1964]
Ch
158, Re C L [1969] 1
Ch
587 and CD (a minor)
v
O [2004] 3 All ER 780. In Re
T,
the
application was heard in
chambers
on
the
ground
that
"it involved consideration of certain confidential facts relating
to
a ward of court" (see at page 160) and an anonymised judgment was given in open court. Re CL was a case in
the
Court of Protection.
The
application was heard in
chambers
and an anonymised judgment was reported by leave of
the
court (see at page 589);
the
judgment does not discuss
the
question of
the
hearing being in private. CD (a minor)
v
O was an edited
version
of a judgment given on an application made in writing and dealt with on paper without a hearing and
treated
as having been heard in private;
the
judge permitted
the
anonymised judgment
to
be published whereas
the
full
version
was subject
to
an embargo (see at page 781).
The
judgment does not further discuss
the
question of
the
matter being dealt with in private.
- It seems
therefore
that
from
the
coming into force of
the
1958 Act until more recent events
to
which I will refer
the
settled practice was
that
applications under
the
Act were heard in open court although it was open
to
the
parties
to
apply
to
the
court for
the
case
to
be heard in private.
There
is no reported instance of any discussion of
the
principles which
the
court would apply
to
an application for a case under
the
1958 Act
to
be heard in private.
The
Civil Procedure Rules were made in 1998 and came into force on 26 April 1999. CPR 39.2 retains its original wording. Part 39 was (and still is) supplemented by PD 39A – Miscellaneous Provisions Relating
to
Hearings. Para. 1.5 of PD 39A sets out a number of matters where hearings should in
the
first instance be listed by
the
court as hearings in private.
The
list originally included, at para. 1.5(11), "an application under
the
Variation
of
Trusts
Act 1958 where
there
are no facts in dispute".
That
sub-paragraph was removed from
the
Practice Direction in around 2003 although
the
note in
the
current White Book at para. 39.2.4 has not been amended
to
reflect
the
removal of
the
sub-paragraph.
The
application of
the
principles in
this
case
- I will now attempt
to
apply CPR 39.2
to
the
present cases.
The
parties submit
that,
in
the
circumstances of
these
cases, I have
the
power
to
order
that
the
hearing or a part of it be in private.
They
rely on sub-paragraphs (c), (d) and (f) of rule 39.2.
There
is some scope for argument as
to
whether
the
parties can establish
that
which is required by
these
three
sub-paragraphs. As
to
sub-paragraph (c),
the
evidence includes confidential information.
To
the
extent
that
such information is referred
to
in open court, it will cease
to
be confidential information, at least
to
some extent. Whether
the
loss of confidence will amount
to
"damage" within sub-paragraph (c) may be open
to
argument although I consider
that
the
real argument is as
to
whether
the
risk of such damage is sufficient
to
justify a hearing in private. As
to
sub-paragraph (d),
the
cases involve existing
children
and, possibly,
children
yet unborn. However, it is open
to
argument whether a private hearing is "necessary"
to
protect
the
interests of
children.
I would prefer
to
consider
the
question of "damage" for
the
purposes of sub-paragraph (c) and
the
question as
to
what is "necessary" for
the
purposes of sub-paragraph (d) as part of my consideration of
the
wider question as
to
whether it is appropriate
to
hold
the
hearing in private. As
to
sub-paragraph (f), again, it may be open
to
argument whether
the
present applications relate
to
"
the
administration of
trusts"
and whether
they
involve "uncontentious matters". As
to
the
latter point,
there
are no factual disputes and all
the
parties submitted
to
me
that
I should be satisfied
that
these
are cases in which it is proper
to
approve
the
proposed arrangements. However, it may be
that
matters can only be "uncontentious" when all
the
relevant parties have capacity
to
agree on
those
matters and
that
is not
this
case. As
the
cases were argued on one side only, and as I consider (for
the
reasons which I will give)
that
I should not order a hearing in private in
these
cases, I will not rule on
the
precise scope of sub-paragraph (f) but will assume
that
the
parties are right
that
these
cases are within
that
sub-paragraph. Assuming
that
these
cases come within one of
the
sub-paragraphs of rule 39.2,
the
real question is whether I ought
to
order a hearing in private.
The
general rule is
that
a court hearing is
to
be in public.
That
general rule applies
to
applications under
the
1958 Act. When considering whether
to
depart from
the
general rule
the
court must apply
the
general principles as
to
open justice. As stated in
the
Practice Guidance referred
to
in paragraph 14 above, open justice is a fundamental principle so
that
derogations from it can only be justified in exceptional circumstances when
they
are strictly necessary
to
secure
the
proper administration of justice.
There
is no general exception
to
the
principles of open justice where privacy or confidentiality is in issue.
The
burden of establishing a derogation from
the
general principle lies on
the
person seeking it and it must be established by clear and cogent evidence.
These
principles are principles of
the
common law.
They
do not depend on
the
case coming within article 6 of
the
Convention. Accordingly, it is not necessary for me
to
rule upon Mr Barlow's submissions
that
article 6 does not apply
to
an application under
the
1958 Act. As
the
case was argued on one side only, I will not discuss
that
point further.
- I suspect
that
in many applications under
the
1958 Act
the
parties are reluctant
to
have
their
cases heard in open court.
The
subject matter of an application under
the
1958 Act may be regarded by
the
parties as a private family matter involving a discussion of
the
family's private financial affairs.
The
parties may
take
the
view
that
those
matters concern no-one but
themselves
and
that
is a sufficient justification for
the
hearing
to
be in private. If
that
is
their
view,
the
law is clear
that
it is not a sufficient justification for
the
hearing
to
be in private.
The
1958 Act conferred
this
jurisdiction upon
the
court. In 1958, and at all
times
since,
the
general principle has been
that
court hearings are in open court and
that
has applied
to
applications under
this
Act as
to
other court hearings.
- In
the
present case,
the
parties have suggested
that
there
are specific reasons why
the
court should be persuaded
to
derogate from
the
general principle of open justice.
The
first reason put forward relates
to
the
fact
that
the
trusts
directly or indirectly own
the
shares in a private company. It is said
that
there
is a risk
that
a hearing in open court would lead
to
the
company's customers becoming aware of
the
levels of profit made by
the
company and
that
would lead
to
those
customers effectively squeezing
the
profit margins of
the
company, damaging
the
value
of
the
trust
assets. I have considered
the
evidence put forward in support of
this
submission and I do not regard it as particularly strong. It certainly does not come anywhere near satisfying
the
requirement of clear and cogent evidence justifying a derogation from
the
open justice principle. If
the
evidence in
this
case sufficed for
that
purpose, I imagine
that
there
would be
very
few cases in
the
Companies Court which would be suitable
to
be heard in open court.
The
parties have also submitted
that
a hearing in open court would lead
to
disclosure of
the
high
value
of
the
trust
assets and of
the
identity of
the
beneficiaries and
this
would lead
to
a risk
to
the
personal security of
those
beneficiaries. I have considered
the
evidence put forward in support of
this
submission and I regard it as
very
slender indeed. It does not begin
to
reach
the
standard of clear and cogent evidence which is required
to
justify a derogation from
the
open justice principle.
- As explained earlier,
the
parties put in further evidence as
to
the
effect of publicity on
the
wellbeing of
the
children
involved in
this
case (including any future
children).
There
are five existing
children
all of whom are under
ten.
The
evidence stressed
the
concern of
the
children's
parents for
their
wellbeing.
There
was detailed evidence
that
the
parents had striven
to
create as normal a life as possible for
the
children.
A modest and low-key unostentatious lifestyle was a core
value
of
the
family.
The
parents were determined
that
the
children
should not know at
too
young an age of
the
extent of
the
family's wealth. It was considered
that
such knowledge could deter
the
children
from
taking
full advantage of
the
educational opportunities open
to
them.
Further, such knowledge at a young age could create a sense of entitlement which might discourage
the
children
from making
their
own way in life and contributing
to
society.
The
evidence also explained in detail
the
concerns of
the
parents in relation
to
the
children
becoming a magnet for false friends and
those
who might seek
to
take
advantage of
the
children's
wealth.
The
evidence also commented on
the
way in which publicity as
to
the
children's
wealth might be disseminated, and even distorted, by social media.
- In
the
light of
this
evidence, I am persuaded
that
the
court should be prepared
to
take
appropriate steps
to
protect
the
children
from
the
adverse effect on
their
upbringing and personal development which might well result from an open court hearing generating publicity as
to
their
potential wealth.
The
question
then
is: what are "appropriate steps"?
Reporting and other restrictions
To
answer
that
question, I need
to
consider
the
circumstances in which a court may impose reporting restrictions on a case
that
has been heard in open court. It has long been recognised
that
the
court has an inherent power
to
impose such restrictions and, more recently, it has been stated
that
such a power is conferred by
the
provisions of
the
Human Rights Act 1998: see Re S (A
Child)
(Identification: Restrictions on Publication) [2005] 1 AC 593 at [22] – [23] and Re Guardian News and Media Ltd [2010] 2 AC 697 at [30].
The
principles as
to
when it is appropriate
to
impose reporting restrictions are summarised in H
v
News Group Newspapers Ltd Practice Note [2011] 1 WLR 1645 by Lord Neuberger of Abbotsbury MR at [21] – [22], as follows:
"21 In a case such as
this,
where
the
protection sought by
the
claimant is an anonymity order or other restraint on publication of details of a case which are normally in
the
public domain, certain principles were identified by
the
judge, and which,
together
with principles contained in
valuable
written observations
to
which I have referred, I would summarise as follows: (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.
22 Where, as here,
the
basis for any claimed restriction on publication ultimately rests on a judicial assessment, it is
therefore
essential
that
(a)
the
judge is first satisfied
that
the
facts and circumstances of
the
case are sufficiently strong
to
justify encroaching on
the
open justice rule by restricting
the
extent
to
which
the
proceedings can be reported, and (b) if so,
the
judge ensures
that
the
restrictions on publication are fashioned so as
to
satisfy
the
need for
the
encroachment in a way which minimises
the
extent of any restrictions."
The
decision in H
v
News Group Newspapers Ltd was applied by
the
Court of Appeal in K
v
L.
That
case concerned a dispute as
to
ancillary financial relief for a former spouse.
The
parties had
children
and applied
to
the
Court of Appeal for reporting restrictions
to
prevent publicity as
to
the
financial position of
the
parties and, hence,
their
children.
The
court considered
the
principles summarised in H
v
News Group Newspapers Ltd and imposed reporting restrictions and gave an anonymised judgment.
The
evidence before me, in support of reporting restrictions and anonymity, is stronger
than,
or at least as strong as,
the
evidence in K
v
L. I am persuaded
that
I ought
to
impose reporting restrictions in
this
case and, further,
that
this
judgment should be anonymised.
- As is made clear in
the
Practice Guidance referred
to
at paragraph 14 above, any derogation from
the
principles of open justice should not be more
than
the
minimum strictly necessary
to
ensure
that
justice is done. I considered at
the
hearing
that
if I imposed reporting restrictions and anonymised any judgment in
this
case,
then
it was not necessary
to
go further
to
protect
the
interests of
the
children
and, in particular, it was not necessary
to
hear
the
cases in private.
- At
the
end of
the
hearing I imposed, on an interim basis only, reporting restrictions in general
terms.
I now invite
the
parties
to
submit a draft order which will continue hereafter;
the
draft order should spell out
the
detail of
the
restrictions which are sought and I will
then
make an appropriate order.
- I also indicated at
the
hearing
that
I would make an order under CPR 5.4C and 5.4D
to
the
effect
that
a non-party would not be entitled
to
obtain a copy of a statement of case or of any judgment or order without obtaining
the
permission of
the
court and any application for such permission should be on notice
to
the
parties. I will also now add a direction
that
a non-party may not obtain a
transcript
of
the
hearing without
the
permission of
the
court and any application for such permission should be on notice
to
the
parties.
Listing in
the
future
- Finally, I wish
to
comment on
the
future listing of applications under
the
1958 Act. If
the
parties intend
to
apply at
the
hearing of
the
substantive application for an order
that
the
application be heard in private, or
that
there
be reporting restrictions or
that
any judgment should be anonymised, and
they
wish
the
substantive hearing
to
be listed without
the
names of
the
parties but with random initials only,
then
it is
to
be expected
that
Chancery
Listing will accede
to
that
request. In such a case, in addition
to
random initials,
the
listing should refer
to
the
Variation
of
Trusts
Act 1958 but will not state
that
the
hearing is in private.
This
procedure should not be abused. A request
to
Chancery
Listing
to
list
the
case in
this
way should only be made where a party genuinely intends
to
argue at
the
substantive hearing
that
the
court should sit in private or impose reporting restrictions or give an anonymised judgment. If
the
parties are in doubt as
to
whether it is appropriate
to
make such a request,
they
may apply
to
the
court in writing in advance of
the
substantive hearing for a direction
that
the
substantive hearing might be listed in
the
way described above. I have
the
authority of
the
Chancellor
of
the
High Court
to
make
the
comments in
this paragraph.