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England and Wales Family Court Decisions (High Court Judges)
You are here: BAILII >> Databases >> England and Wales Family Court Decisions (High Court Judges) >> Barclay v Barclay  EWFC 40 (05 May 2021)
Cite as:  EWFC 40
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THE HIGH COURT OF JUSTICE
Strand, London, WC2A 2LL
B e f o r e :
| Lady Hiroko Barclay
|- and -
|Sir Frederick Barclay
Ms K Wilson and Mr J Tod (instructed by Miles Preston) for the Respondent
Mr J Browning (Bloomberg) and Mr B Farmer (PA) for the Media
Ms H Rogers QC and Mr J Price (instructed by Signature Litigation) for the Interested Parties
Hearing dates: 20 April 2021
Crown Copyright ©
This judgment was delivered in private. The judge has given leave for the judgment to be published.
The Hon. Mr Justice Cohen :
Sir Frederick Barclay
i) 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;
ii) 50% of such receipt as he might receive from the relevant trustees of the equity in the yacht and in the family home.
As Mr Leech QC correctly pointed out, the effect of H's offer might be that W would receive nothing as H's trustees would not regard it as in his interest for the funds to be made available to him to pay to W.
The Court Order
i) The correct starting point is privacy. These are highly personal proceedings and there should be no publication of any part of them.
ii) Any publication will inevitably lead to identification. An anonymised and redacted judgment is not an option available in the present proceedings because identification would be inevitable by reason of H's business interests which are widely known.
iii) Whatever the nature of his business interests, H is not a public figure. He has never courted publicity and has always been a very private person.
iv) The fact that The Telegraph has taken the lead in publishing details of the finances of others, particularly MPs thought to have abused expenses, is immaterial. They were public figures said to be taking advantage of the public purse.
v) Although criticisms have been made in the judgment, to which I will return, there is no suggestion, as can be found in other cases where litigants have been identified, of the presentation of a perjured case or very serious litigation misconduct. In each case the extent of any wrongdoing has to be examined and there is no rule of general application.
vi) There are genuine concerns for other members of the family who are not parties to the proceedings but may be affected by the judgment, in particular the parties' daughter and, to a lesser extent, the wider Barclay family.
vii) There are aspects of the judgment which are highly personal, in particular matters relating to H's health.
i) Whilst H may wish to maintain his privacy, W wishes to exercise her right of freedom of expression. Neither party's wish trumps that of the other. W does not wish to be silenced about the way that H has behaved before and during the litigation.
ii) H overstates the intrusion which he or members of the family will suffer by publication. There is no evidence that anyone other than H would be affected by full publication of the judgment (redacted only to remove reference to H's health issues). The fact that the Barclay family do not like their financial and tax affairs being discussed is immaterial. They are in the public eye and indeed H has initiated widely reported proceedings against his nephews in the Queen's Bench Division.
iii) The public have a right to know of the way that H has behaved, as set out in the judgment. His behaviour has removed his right to privacy.
i) As a part owner of a newspaper, H is a public and political figure. Newspapers exercise a great influence on the public and set an agenda of what people are told. There is a public interest in knowing how H deals with others.
ii) To the extent that the judgment criticises H in respect of financial matters, it is important that the criticism is made public. This applies particularly in circumstances when The Telegraph has excoriated others in respect of the conduct of their own finances, whether MPs in respect of expenses claims or celebrities who have entered tax avoidance schemes.
iii) The evidence of the relationship between H and his twin brother and the evidence of the way that the parties conducted their lives financially are matters of general public interest.
iv) It is important that the whole of the judgment is published so that the public can understand how it is that the court has reached its conclusion as to the appropriate size of the award. It is only by knowing the whole context of the case that the award can be understood.
The wider family (The Interested Parties)
"(1) Open justice is a fundamental principle of our constitution. The general rule is that hearings are carried out, and judgments delivered, in public. This fundamental principle, set out by the House of Lords in Scott v Scott  AC 417 , has been reiterated on numerous occasions.
(2) There are, however, established exceptions to this general rule. Amongst those exceptions are proceedings in the family court. Such proceedings, including those concerning applications for financial remedies orders, are usually conducted in private: Family Procedure Rules ("FPR") rule 27.10.
(3) The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings: Administration of Justice Act 1960 , Clibbery v Allen  Fam 261 paras 17 and 51; Norman v Norman  EWCA Civ 49.
(4) In financial remedy proceedings, however, there is an obligation on the litigants to give full and frank disclosure of all relevant matters. The quid pro quo of this obligation is the confidentiality which attaches to all information disclosed within the proceedings. The party receiving the confidential information is subject to an implied undertaking not to use it for any purpose other than within the proceedings in which the information has been disclosed. "Information disclosed under the compulsion of ancillary relief proceedings is … protected by the implied undertaking before, during and after the proceedings are completed" (per Butler-Sloss P in Clibbery v Allen, supra, para 72).
(5) Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless authorised by the judge.
(6) In deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings, and, if so, on what terms, the court has to balance the conflicting rights and interests under ECHR , in particular articles 6 , 8 and 10 , applying the well-established principles identified in the case law, in particular Re S (Identification: Restrictions on Publication)  1 AC 593. Importantly, the article 8 rights to be balanced include those of the children to the marriage as well as the parties themselves: K v L  EWCA Civ 550,  306 at para 26.
(7) The same principles apply to the publication of judgments in financial remedy proceedings. But, as Thorpe LJ acknowledged in Lykiardopulo v Lykiardopulo  EWCA Civ 1315 at para 33:
"a distinction can be validly drawn between the privacy of the hearing and the privacy of the judgment. A judgment considering a point of law or practice has generally been released to the specialist series of law reports. There have been many first instance judgments so reported in addition to appellate decisions selected by the reporters. Without this collaboration between the judiciary and the reports evolution of ancillary relief law and practice by the judges would hardly have been possible."
Thus in cases where there is a public interest in the publication of the judgment which explains or illustrates an aspect of the law or practice, the judge will normally give permission for it to be reported, but subject to anonymisation and redaction of sensitive or confidential information.
(8) In some cases, the judge may authorise publication of the judgment without anonymisation or redaction – for example, where a party has provided false information to the court (for example, the Lykiardopulo case, supra), or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain (for example, McCartney v Mills McCartney  EWHC 401 (Fam)). In other cases where the parties are in the public eye, but the details of the dispute are not in the public domain, the court may authorise publication of the fact that they are engaged in litigation but restrain publication of detailed information relating to the proceedings (for example, Appleton v Gallagher  EWHC 2689 (Fam)).
(9) Although in most cases, confidentiality can be protected by publishing judgments in an anonymised and redacted form, there are some rare cases where the factual matrix is unique or so unusual that confidentiality can only be protected by withholding the judgment from publication altogether. One example is the judgment in the so-called "Scottish case" delivered by Mostyn J which has never been published but was subsequently cited by the same judge in WM v HM (Financial Remedies: Sharing Principle: Special Contributions)  EWFC 25. As Mostyn J explained in the latter case at para 110, "I have not given leave for that decision to be reported as the case is incapable of camouflage and were its details to be reported there may be adverse economic consequences."
(10) The principles set out above are unaffected by the change in the rules incorporated in FPR r.27(11)(2)(f) and Practice Direction 27B, under which duly accredited representatives of news gathering and reporting organisations are permitted to attend hearings in the family court unless the judge orders otherwise. I respectfully agree with the observations made by Mostyn J in Appleton v Gallagher, supra, at paras 12 to 14, DL v SL, supra, para 1, and again in L v L  in EWHC 2621 (Fam)  1 WLR 1259 at para 1 that, whilst accredited representatives of the press may be present at the hearing, they are not permitted to report confidential and private information disclosed into the proceedings. It is fair to say, however, that there is some disagreement amongst judges and practitioners on this issue, and as a result the courts are not infrequently invited by the parties to financial remedy proceedings to make a reporting restrictions order."
i) Publication of a judgment in full;
ii) A direction that there shall be no publication;
iii) Publication with anonymisation;
iv) Publication with redaction;
v) Publication of a summary of the judgment.
The criticisms made of H
i) The starting point, namely that these proceedings are conducted in private.
ii) Although 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.
iii) This is not a case of H "getting away with it". By order or agreement H has paid almost the entirety of W's costs to the tune of some £1.8m. Despite hiccups along the way, that has all been paid.
iv) Whilst a relevant matter, I do not consider that the fact that H has or has had (directly or indirectly) a share in the ownership of The Telegraph is in itself sufficient reason to dictate my decision. Leaving aside the issue of which members of the family were involved in the newspaper at the relevant times, I have heard no evidence as to whether or the extent to which the owners dictated or influenced the content of the paper.
v) H is a public figure who should have been aware of the potential consequences of disobedience of court orders and his behaviour in the proceedings should not be allowed to pass completely under the radar.
vi) The provision of this judgment properly and proportionately satisfies the public interest.