![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
England and Wales Court of Appeal (Civil Division) Decisions |
||
|
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> DE v AB [2014] EWCA Civ 1064 (24 July 2014) URL: https://www.bailii.org/ew/cases/EWCA/Civ/2014/1064.html Cite as: [2014] EWCA Civ 1064 |
||
[New search]
[Context
]
[View without highlighting]
[Printable RTF version]
[Help]
ON APPEAL FROM THE FAMILY DIVISION OF THE HIGH COURT
BODEY J
FD12P04004
Strand, London, WC2A 2LL |
||
B e f o r e :
____________________
DE | Appellant |
|
| - and - |
||
AB | Respondent |
|
| [No 2] |
____________________
Victoria
Shore (instructed by
Vardags
Solicitors) for the Respondent
The Appellant appeared in person
Hearing date: 24 July 2014
____________________
VERSION
OF JUDGMENT
Crown Copyright ©
Lord Justice Ryder:
despite
the fact that she is ready to proceed to make submissions on her permission application.
via
the Press Association, were served with the father's application notice and supporting documents on Monday 21 July 2014 in compliance with the order that I made on 5 July 2014. The media have acknowledged service, there are no submissions in writing and no representative of the media has attended court. The mother submits that a private hearing will prevent her subjecting the orders that she wishes to appeal to public scrutiny and accordingly she opposes the same. Her rationale for an adjournment to allow more time to construct an argument to oppose the father's application has no force if this court concludes that a public permission hearing is appropriate and if, as it appears, the mother is ready to make her permission application today.
December
2013 and 28 February 2014 (sitting in private), dismissing her appeal against the orders made by Senior District Judge Waller on 26 March 2013, in respect of (1) his
decision
to refuse an application relating to
various
financial orders that were sought by her on behalf of a child born to the parties, and (2) the grant of an injunction that restrains the parties from disclosing:
"to any third party without permission of the court any information or documents disclosed in or used for the purposes of these proceedings"
except as to the extent necessary for seeking legal advice and making relevant disclosure to the Child Support Agency or similar body fulfilling equivalent functions.
defeat
the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the 'prohibited information'). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman's terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail.
Background to the hearing
December
2012, 29th -30th
December
and 8th February 2013, the judge handed down judgment and made an order on 26 March 2013. Paragraph 5 of the order gave effect to the judge's conclusion that the mother should be prohibited from reporting to outside agencies certain information relating to the father's sworn evidence. The Senior District Judge's conclusion on the injunction issue is set out at paragraph 7 of the judgment of Bodey J of 28 February 2014 which is reported.
"particularly concerned that these proceedings involve a young child who may be affected by any proceedings which may be taken against either of his parents or their involvement in continued litigation together… The conclusion that I have reached is that it is manifestly not in the interests of the parties or of John for documents to be disclosed to the Police in circumstances where there is no investigation which is being undertaken to which these documents would be relevant. I am not suggesting that any such investigation should be undertaken. It seems to me that the issues arising from the non-disclosure in 2010 have beendealt
within these proceedings. Nothing is to be gained for the parties, or indeed for the public, in disclosure to the Police which would precipitate an investigation by them."
various
financial orders to the High Court in
December
2013. Judgment was given by Bodey J on 20
December
2013, dismissing the appeal. The issue of the injunction was reserved until 28 February 2014 when an anonymised judgment was handed down in public after hearing from counsel for the father and hearing the mother in person and reading her written submissions.
decision
given on the papers, the mother was refused permission to appeal Bodey J's
decision
to this court. She orally renews her permission application this morning.
decision
whether to adjourn it as requested by the mother. I did not need to
decide
the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the
detail
of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the
very
firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that 'secret justice' is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite
the entirely adverse
view
that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a
very
rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to
decide
to do so on the application made in this case because a more proportionate mechanism was available.
able
to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and
able
to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.
Orders currently in place and the publicity of the proceedings
v
Buffham [2002] EWHC 1866. In any event, the injunction granted by Senior District Judge Waller appears to have been a final, and not an interim, injunction and the operation of Spycatcher principle therefore does not apply.
Legal submissions on the law – power to sit in private
defeat
the object of the hearing; (b) a private hearing was necessary to protect the interests of the child; and (c) it was in any event necessary in the interests of justice.
decision
is being appealed had the power to sit in private during those proceedings. But the appellate court must give its
decision
in public "unless there are good and sufficient grounds" for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.
very
rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.
v
Scott [1913] AC 417.
v
Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to
depart
from it.
Viscount
Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, "where the effect of publicity would be to
destroy
the subject-matter". The Earl of Halsbury observed at p 443 that "it would be the height of
absurdity
as well as of injustice to allow a trial at law to protect either to be made the instrument of
destroying
the
very
thing it was intended to protect". Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any
departure
from the principle of open justice. The Lord Chancellor said at pp 437-438:
"As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration."
detail
in the cases of In re K (Infants) [1965] AC 201 and Attorney General
v
Leveller Magazine Ltd [1979] AC 440. In the former case, Lord
Devlin
noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
"But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly
decided
in Scott
v
Scott."
Viscount
Haldane, Lord
Devlin
continued at p 239:
"That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means."
v
Her Majesty's Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority,
described
the principle as fundamental to the dispensation of justice in a modern,
democratic
society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the
degree
of privacy was kept to an
absolute
minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially
valuable
secret information was in issue.
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: AMM
v
HXW [2010] EWHC 2457 (QB) at [34].
derogation
from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott
v
Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH
v
News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].
derogation
from open justice, the court must 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.
The Convention and public hearings
"In the
determination
of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a
democratic
society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice."
v
United Kingdom; P
v
United Kingdom [2001] 2 FLR 261 that the article 6 requirement to hold a public hearing was subject to exceptions. The court said:
"….the requirement to hold a public hearing is subject to exceptions. This is apparent from the text of Art 6(1) itself which contains the proviso that 'the press and public may be excluded from all or part of the trial…. where the interests of juveniles or the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice'. Moreover, it is established in the Court's case-law that, even in a criminal law context where there is a high expectation of publicity, it may on occasion be necessary under Art 6 to limit the open and public nature of proceedings in order, for example, to protect the safety or privacy of witnesses or to promote the free exchange of information and opinion in the pursuit of justice …" [37]
"The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a
democratic
society … for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
values,
including the rights to life and to bodily security protected by articles 2 and 3 of the Convention, the integrity of legal proceedings and the rights of litigants and accused persons, protected by article 6, and the right to respect for private life, protected by article 8. Where there is a conflict between the right of the media to report legal proceedings and the rights of litigants or others under a guarantee which is itself qualified, such as article 8, a balance must be struck, so as to ensure that any restriction upon the rights of the media, on the one hand, or of the litigants or third parties, on the other hand, is proportionate in the circumstances. The approach which should be adopted was considered in
detail
by Lord Steyn in In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, and by Lord Rodger in In re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697.
Application to the present case
democracy
and, on the other, protection of the integrity of particular court proceedings or of the administration of justice more generally.
details
which are the subject of the injunction being discussed at that hearing. Those
details
could as a result enter the public domain and, moreover, become reportable by the media. If such information were to be disclosed prior to the
determination
of any appeal, the purpose of the proceedings would not only be prejudiced but the process of the court entirely subverted.
verifiable
fear that the mother may seize the opportunity of asking a member of the public who is in attendance at the hearing to report to the police or any other authority any information that is disclosed during the course of submissions. In his submissions the father presumed (and was entitled to presume in the circumstance that the threat was truly made) that the mother would attempt to bring to the hearing those who may be sympathetic to her case and a danger lies therein that such individuals may disclose certain information to assist the mother in the event that they were not restrained from doing so. This concern is not without foundation, as the mother in fact breached confidentiality in the course of the court proceedings below by disclosing confidential documentation and information to a journalist overseas.
about
the threat and because the public and the media are
absent,
that I have come to the conclusion that the necessary restrictions can be provided for in a more proportionate way than by hearing the permission application in private.
Court of Appeal – powers to restrict reporting of the hearing
v
Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).
v
Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.
degree
of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General
v
Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow "a much less drastic
derogation
from the principle of open justice", namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press.
Viscount
Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively.
v
British Broadcasting Corpn [2014] UKSC 25 the Supreme Court considered the circumstances in which the principle of open justice can be
departed
from. The father relies on the court's unanimous judgment as authority for the proposition that a court is empowered to grant anonymity to a party to proceedings where the publication of an identity would render the proceedings largely pointless. In that case, the appellant broadcaster sought to challenge the
decision
of the Court of Session to grant the respondent an anonymity order in respect of an application for judicial review. The respondent had been convicted of serious sexual offences and had been challenging an attempt to have him
deported
under the grounds of Articles 2, 3 and 8 of the European Convention on Human Rights ("ECHR").
deportation
would be unlawful unless the section 11 order remained in place: in the
absence
of the order, there would be a real risk that A's identity and history as a sex offender would be publicised, and that such publicity would expose him to
vigilante
behaviour in his country of origin, contrary to his rights under article 3. The BBC reclaimed against the
decision
to refuse to recall the section 11 order, and also challenged the previous judge's
decision
to make the order in the first place.
decision
to authorise his
deportation.
That
decision
had been based on an assessment that there was no real risk of a
violation
of article 3 if A's identity was not publicised in connection with the
deportation
proceedings. The
decision
would have been undermined, before the challenge to its
validity
was
determined,
if his identity was published in the meantime. A fresh application to be allowed to remain in this country could then have been made on the basis of the new factual situation created by the publication of his identity in connection with the
deportation
proceedings. That application would then have required to be considered by the Home Secretary, and a fresh
decision
made. The publication of A's identity would therefore have frustrated the judicial review proceedings before the court. Indeed, the entire proceedings since at least 2007 would have been rendered largely pointless.
depart
from the general principle of open justice to the extent involved in the making of the orders. It also followed that the section 11 order was not incompatible with the Convention rights of the BBC. In the circumstances where the publication of A's identity in connection with the proceedings might well have rendered those proceedings pointless, the interference with the BBC's article 10 rights was unavoidable if the authority and impartiality of the judiciary, within the meaning of article 10(2), were to be maintained. Put shortly, the order had to be made if the court was to do its job, notwithstanding the resulting restriction upon the BBC's capacity to do its job. The interference with the BBC's article 10 rights was also necessary for the protection of the rights of others, namely the right of A not to be subjected to
violent
attack.
departure
from the principle of open justice was justified in any particular case would
depend
on the facts of that case: "As Lord Toulson observed in Kennedy
v
The Charity Commission [2014] UKSC 20 at [113], "the court has to carry out a balancing exercise which will be fact-specific. Central to the court's evaluation will be the purpose of the open justice principle, the potential
value
of the information in question in advancing that purpose and, conversely, any risk of harm which its disclosure may cause to the maintenance of an effective judicial process or to the legitimate interests of others."
absurdity
and an injustice if the matters which are currently the subject of the appeal could be discussed in open court and be reportable prior to the
decision
as to whether such an appeal is permitted. The hearing in question would be made the instrument of
destroying
the
very
thing, the injunction, it was intended to protect.
decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA".