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England and Wales High Court (Family Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Family Division) Decisions >> Cooper-Hohn v Hohn  EWHC 2314 (Fam) (07 July 2014)
Cite as:  EWHC 2314 (Fam)
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Strand, London, WC2A 2LL
B e f o r e :
| JAMIE ANNE COOPER-HOHN
|- and -
|CHRISTOPHER ANTHONY HOHN
1st Floor, Quality House, 6-9 Quality Court,
Chancery Lane, London WC2A 1HP.
Telephone No: 020 7067 2900. Fax No: 020 7831 6864
MR. LEWIS MARKS QC, MS. ELIZABETH CLARKE and MR. GUY VASSALL-ADAMS (instructed by Withers LLP) appeared for the Respondent
Crown Copyright ©
MRS. JUSTICE ROBERTS :
(1) neither party was seeking anonymity in these proceedings, notwithstanding their nature and the fact that they are being heard in private. Their identities, the substance of the principal issues before this court, and several aspects of the evidence which will be canvassed before me have, as I already indicated, been referred to by the Court of Appeal in an open judgment which was handed down on 18th June, some 10 days before this hearing commenced.
(2) Neither was seeking an anonymised judgment at the conclusion of the substantive issues which I shall have to determine, although the need for any specific redaction in respect of confidential or commercially sensitive information has yet to be addressed.
(3) The case involves legal issues and principles the determination of which are likely to be of interest and importance not only within legal circles but the wider public at large.
(4) Neither party had made an application at this stage to exclude the press from any part of these proceedings and no future application was advertised by either.
(5) There was no application by either party for an order restricting what the press could or could not report.
"The Judge is currently reading the papers in preparation for starting this case tomorrow. It seems inevitable that there will be a level of media interest in the case given previous reporting and the judgment of the Court of Appeal which has just been published.
"If either of you is taking a position in relation to the attendance by the media and/or reporting restrictions in the event of such attendance, her Ladyship would like to know in advance of tomorrow morning.
"Short written submissions by 4 p.m. this afternoon would be appreciated".
The 1926 Act
(i) the names, addresses and occupations of the parties and witnesses;
(ii) a concise statement of the charges, defences and countercharges in support of which evidence has been given;
(iii) submissions on points of law and the summing-up of the judge and findings of the jury (if any) and judgment of the court.
"... plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience."
"In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word 'report' will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word 'report' is apt to include a report of the proceedings."
"Much more important in the real world is the ongoing uncertainty as to whether the 1926 Act applies to the reporting of ancillary relief (financial remedy) proceedings."
It was the absence of any clarity over this issue which he described in these terms:
"This is truly a disturbing state of affairs. Something needs to be done, and, it might be thought, done as a matter of urgency."
"On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4)."
"It seems to us that if we make that application, then it should bring to an end, if I may say so, the jockeying for position between petitioner and respondent and will crystallize the issue for the court to determine what can and cannot be reported of this hearing in the context where the media are present during the hearing."
"Judges, practitioners and court staff are vigilant to ensure that no one crosses the threshold of the court who has not got a direct involvement in the business of the day ... This strict boundary has always been scrupulously observed by the press."
"The provisions of the rules permitting the attendance of media representatives and the disclosure to third parties of information relating to the proceedings do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submission or judgment without the permission of the court."
Paragraph 2.4 continues:
"The question of the attendance of media representatives at hearings in family proceedings to which rule 27.11 and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings which continue to apply and are unaffected by the rule in this guidance."
"consider whether the reporting or disclosure restrictions, which apply by operation of law or which the court otherwise has power to order, will provide a sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph 3(a) of the rule."
"The net result is that while the press are entitled to report on the nature of the dispute in the proceedings and to identify the issues in the case, they are not entitled to set out the content of the evidence or the details of the matters investigated by the court. Thus the position has been created that whereas the media are now enabled to exercise the role of 'watchdog' on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of judges, they are unable to report in their newspapers or programmes the identities of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader viewer".
"The media shall be prohibited from publishing any such report that refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain".
"There is no more difficult issue in family justice than the reporting of cases. There is a tension between concerns about 'secret justice' and legitimate expectations of privacy and confidentiality for the family. Both standpoints are valid and the question is whether they are irreconcilable. Against this background and under the wise tutelage of the Lord Chief Justice a group of lawyers and journalists, including representatives from both the print and broadcast media, have got together to talk to each other. As part of these discussions they commissioned a paper which would set out a statement of the current state of the law in this most complex area."
"The position therefore is that the media will have considerable difficulty in reporting proceedings for ancillary relief and other cases in which reference is made to information which is disclosed under compulsion unless that information passes into the public domain".
"41. The fact that litigants in a Family Division, as indeed elsewhere, have important rights to privacy and confidentiality protected by Article 8 is so well recognised, both in Strasbourg and domestic jurisprudence, that I need not cite authority for the point. Plainly, on the other hand, the media have their rights under Article 10. Not, in the present case, a right to receive information from the parties (because neither of the parties wishes to give them any information) but a right to receive information by sitting in court and, subject to any other restraints which there may be on their reporting of the proceedings, their right to impart that information to the world at large.
"42. But there are also, as it seems to me, important rights protected by Article 6. There is -- again there is much Strasbourg and domestic jurisprudence, which there is no need for me to recite in detail -- a well recognised public interest, an interest of the community as a whole, in promoting the administration of justice, in maintaining the authority of the judiciary and in maintaining the confidence of the public at large in the courts. And that public interest is protected by Article 6, quite apart from Article 10. But that interest typically pulls in two different directions. Viewed from the perspective of the media, and the market in which the media are serving, that public interest is to be promoted and public confidence in the courts is to be maintained by justice being administered in public, or at least in a manner which enables its workings to be properly scrutinised, so that (and this is the modern Convention version of the age-old Benthamite principle) the judges and other participants in the process remain visible and amenable to comment and criticism. This is the argument that the Article 6 points in the direction of openness, specifically in this context in the direction of the media being permitted to remain in court.
"43. On the other hand, and the Article 6 jurisprudence equally recognises this right, there is the vital importance, as viewed from the perspective of the participants in the process, that if the administration of justice is to be promoted, and public confidence in the workings of the family court is to be maintained, then, so it is said, one needs to preserve the privacy of such proceedings, there being, for example, an important public interest in preserving faith with those who have launched upon the proceedings and given evidence in the family court in the belief that the proceedings and the evidence would remain confidential."
"Truth be told, the only circumstance put forward in the present case for excluding the media from the hearing at all is the high profile of the parties and the fact that they, unlike they and those who live less public lives, will be exposed, subject to whatever reporting restrictions there may be, to the publication of matters to which they, no doubt like all litigants in ancillary relief proceedings, would prefer not to be exposed in public. It may be that, because of their public profile, they will not merely be exposed to the publication of facts and matters which they prefer to keep private, but also be exposed to comment of the kind which they would rather not be exposed to. But is that of itself a reason for making an order different from the order which one would make were that factor absent?"
"My view is that the starting point in financial remedy proceedings should be that, if sought, a reporting restriction order in equivalent terms to the standard rubric should be granted. It is my view that, generally speaking, only if the court is prima facie satisfied that the case will result in proof of inequity in some shape or form, should that starting point be departed from. As the White Paper put it, 'families need to be confident their privacy will be protected' or in the words of Stanley Burnton LJ, 'Parties to a matrimonial dispute who bring before the court the facts and documents relating to their financial affairs may, in general, be assured that the confidentiality of that information will be respected'. The powerful statements referred to by me at paragraph 17 above warning of the danger of anonymisation leading to a curtailment of right to freedom of expression in the reporting of public civil proceedings do not, in my opinion, militate in favour of a derogation from the core privacy that attaches to the special class of (officially private) case that is a claim for financial remedy following divorce. It would be a strange thing if the court's undoubted power to anonymise its judgment were to be emasculated by an unfettered right to report fully the proceedings leading to the judgment."
(1) If the court is to discharge its statutory role under section 25 of the Matrimonial Causes Act 1973, so as to achieve a fair outcome the parties must give full and frank disclosure of all documentation concerning their resources.
(2) This is quintessentially private information.
(3) There is a very strong public interest in ensuring that parties properly discharge their obligation to give full and frank disclosure.
(4) This is supported by the implied undertaking that information disclosed for the purpose of financial remedy proceedings will not be used for other purposes.
(5) Parties disclose documents in financial remedy proceedings in the expectation and understanding that in the normal course of events this detailed financial information and the relevant documents will not enter the public domain.
(6) This expectation of confidentiality acts as a strong incentive on parties to give full and frank disclosure. Conversely, parties are likely to be deterred from giving full and frank disclosure by the prospect of publicity.
(7) It defeats the object of the implied undertaking as to confidentiality if financial remedy proceedings are held in open court with the result that sensitive disclosed information becomes public in any event.
(8) These propositions apply to any application to make public what happens during the course of an application for financial remedy orders, whether the hearing is held in private or in public.
(9) The substantive law has not changed despite the introduction of the changes brought about by the amendments around the Proceedings Rules in 2009. In essence, the rule change has not affected the private nature of the hearing, the absence of any access to the court file and the principles established as to the limits of what can and cannot be reported or made public.
(10) There are exceptions to this principle and they are these:
(a) information which is within the public domain is not to be treated as confidential and the court has no power to restrain publication;
(b) there is no confidence in iniquity or fraud cases but it is accepted that this exception has no relevance for the issues which I am deciding today.
The confidential nature of the proceedings
"... the hearing of a case in private does not necessarily, or of itself, prohibit the publication of information about the proceedings or given in the proceedings."
"In each of the above cases, the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of all that information by means of the implied undertaking. In order to achieve compliance with a disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed."
"The implied undertaking extends, as the cases to which I have referred above show, to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction."
"All cases involving issues of ancillary relief are protected from publication by anyone without the leave of the court."
"The principles underlying the recognition of implied undertakings do not appear to me to breach the requirements of Article 10."
But she was quite clear that a balance was required and, to use her words:
"There cannot be a blanket approach".
"Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment."
"Mr. Balcombe submitted that the protection of this confidence is the result of a pact between the litigant and the court. That may be a helpful description of the principle. But if so, the Husband and the Interested Party did not keep to their part of the pact. In matrimonial ancillary proceedings, the obligation of the parties is to disclose the facts regarding their finances."
"I start from the premise that, as Article 6 requires, justice should be seen to be done, and in general the judgment of the court should be public unless there is good reason for it not to be published or for the identities of the parties not to be disclosed. Litigants have a right to respect for their private life under Article 8, but that right is qualified and in many and, indeed, most cases the interests of justice, and of justice being seen to be done, require facts that would otherwise remain private to be made public in a judgment. 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."
"I would not wish it to be inferred that I am opposed to change or an advocate for the present practice. There are strong arguments for the introduction of greater openness in family proceedings. There is strong evidence that a substantial section of public opinion would favour such a change. However the arguments for and against are complex and finely balanced ...".