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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) >> Xanthopoulos v Rakshina  EWFC 30 (12 April 2022)
Cite as:  2 FCR 712,  1 FLR 388,  EWFC 30
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Strand, London, WC2A 2LL
B e f o r e :
|Lazaros Panagiotis Xanthopoulos
|- and -
|Alla Aleksandrovna Rakshina
Simon Calhaem (instructed by Family Law in Partnership) for the respondent wife
Hearing date: 30 March 2022
Crown Copyright ©
This judgment was delivered in private. The judge hereby gives permission – if permission is needed – for it to be published. The judge has made a reporting restriction order which provides that in no report of, or commentary on, the proceedings or this judgment may the children be named or their schools or address identified. Failure to comply with that order will be a contempt of court.
Mr Justice Mostyn:
i) the husband's application for a further legal services payment order; and
ii) the wife's application to be released from an undertaking given on 15 June 2021 that pending determination of the husband's financial claims she would preserve and not deal with, charge or in any way diminish an account with Coutts ("the Coutts account") and all sums contained therein ("the undertaking"). The Coutts account holds approximately £11 million.
i) Paragraph 15 of the High Court Statement of Efficient Conduct of Financial Remedy Proceedings provides that skeleton arguments for interim hearings must not exceed 10 pages. The husband's skeleton argument ran to 24 pages and the wife's skeleton argument ran to 14 pages.
ii) Skeleton arguments were due by 11:00 on the working day before this hearing. Both parties filed late. The husband's skeleton argument was filed only on the morning of the hearing. The wife's skeleton argument was filed at around 17:30 the day before the hearing.
iii) Paragraph 18 of Sir Jonathan Cohen's order dated 15 March 2022 provided that the husband's statement was to be filed and served by 12:00 on 21 March 2022. The husband's statement is dated 22 March 2022. I do not know when it was filed, but I am told by the wife's representatives that it was only served on her on 24 March 2022.
iv) Paragraph 20 of that same order provided that the parties' statements to be filed and served for this hearing would be limited to 6 pages each with any exhibit accompanying the same limited to 10 pages (a total of 16 pages). The husband's statement ran to 11 pages and its exhibit ran to 15 pages (a total of 26 pages). The wife's statement also ran to 11 pages and its exhibit ran to 28 pages (a total of 39 pages).
v) FPR PD 27A paragraph 5.1 provides that unless the court has specifically directed otherwise that there shall be one bundle limited to 350 pages of text. I have been provided with four bundles respectively containing 579 pages, 279 pages, 666 pages, and 354 pages (a total of 1,878 pages).
"I refer to the slapdash, lackadaisical and on occasions almost contumelious attitude which still far too frequently characterises the response to orders made by family courts. There is simply no excuse for this. Orders, including interlocutory orders, must be obeyed and complied with to the letter and on time. Too often they are not. They are not preferences, requests or mere indications; they are orders."
That was nine years ago. But nothing seems to change. In the very recent decision of WC v HC (Financial Remedies Agreements)  EWFC 22 Peel J astutely pointed out at [1(i)]:
"Court Orders, Practice Directions and Statements of Efficient Conduct are there to be complied with, not ignored. The purpose of the restriction on statement length is partly to focus the parties' minds on relevant evidence, and partly to ensure a level playing field. Why is it fair for one party to follow the rules, but the other party to ignore them? Why is it fair for the complying party to be left with the feeling that the non-complying party has been able to adduce more evidence to his/her apparent advantage?"
It should be understood that the deliberate flouting of orders, guidance and procedure is a form of forensic cheating, and should be treated as such. Advisers should clearly understand that such non-compliance may well be regarded by the court as professional misconduct leading to a report to their regulatory body.
i) £79,585 for an appeal hearing against the recent children judgment referred to below of Sir Jonathan Cohen (assuming he gets permission to appeal);
ii) £285,095 for a rehearing of the child proceedings (assuming he wins the appeal). This does not include the cost of a prefigured renewed application to recuse Sir Jonathan Cohen from any further dealings with the case;
iii) £233,295 being the costs between today and the First Appointment (i.e. to draft a questionnaire and attend the appointment); and
iv) £75,533 to enable him to fund his defence to a claim mounted by his former solicitors in respect of unpaid bills.
A total of £673,508. And this would only take him up to the conclusion of the First Appointment.
i) Declared that on 27 October 2020, when the wife issued child arrangement proceedings in Russia, the children were habitually resident in that country; and
ii) Recognised a Russian child arrangements decision made on 18 March 2021 providing that the children should live with the wife and permitting her to take them to Russia.
i) The property in London in which the wife and the children are living is said to have a value of £5.25 million. This property is subject to an injunction restraining the wife from dealing with it.
ii) The wife owns an adjacent property which is also said to have a value of £5.25 million. The wife says that the entire purchase price of the property was funded by her brother with the intention that she hold it on bare trust for him; she therefore says that she has no beneficial interest in this property. This property is subject to an injunction in the same terms as the family home.
iii) There is real property located in Russia with a combined value of approximately £1 million. I anticipate there will be arguments as to the current value and realisability of these resources in light of the current geopolitical climate.
iv) The Coutts account holds approximately £11 million.
v) There are various other accounts in this jurisdiction and overseas holding comparatively modest sums.
vi) Both parties have various liabilities. In the context of this hearing, the most relevant liabilities are those that the parties have to (in the husband's case) former solicitors and (in the wife's case) current solicitors.
vii) The wife has an interest in the business, as I have referred to above. It appears that the true beneficial ownership of the wife's interest in the same is in dispute, but the wife has not fully articulated her case on this issue so far. As above, the husband suggests that the wife's corporate interests are conservatively worth more than £300 million.
The husband's application for a further legal services payment order
i) On 14 October 2021 an order was made providing that the wife was released from the undertaking to enable the payment out of the Coutts account of, inter alia, £590,355 to the husband's solicitors.
ii) Those funds were supposed to take the parties to the conclusion of the hearing listed before Sir Jonathan Cohen commencing on 22 November 2021 and the First Appointment in the Part III proceedings.
iii) The hearing listed before Sir Jonathan Cohen has now taken place. The First Appointment in the Part III proceedings is due to take place on 28 April 2022.
i) A legal services payment order should only be made in respect of outstanding costs to current solicitors where, without payment, those current solicitors would likely cease acting for the party in question (i.e. so to ensure that that party can continue to access representation).
ii) The position is entirely different in relation to former solicitors as they have already ceased acting for the party in question (i.e. so payment of their outstanding costs has no relevance to the question of whether a party can continue to access representation).
" … I must confess to being dismayed to discover that the solicitors in this case have billed the mother sums significantly in excess of the amount which I awarded to cover the costs of the Schedule 1 litigation, and which Mostyn J ordered in relation to welfare/medical litigation; they can only have assumed that this overspend would be retrospectively authorised by the court. They were not entitled to make that assumption.
 If I had thought that my comments in Re F and in the earlier judgment in this case would have the effect of encouraging the mother's solicitors, or indeed any solicitors in similar cases, to assume that they had carte blanche to bill their clients as they choose, I would not have made the comments, or I may have expressed myself differently. In November 2020, I set a budget within which I expected the mother's solicitors to work. I did so having regard to a number of factors including:
i) the issues in the case,
ii) the ball-park likely value of the claims,
iii) my recognition that this is a 'big money' Schedule 1 claim,
iv) the father's current and projected costs (see Theis J at  in PG v TW (No.1) (Child: Financial Provision: Legal Funding)  1 FLR 508), and
v) the professional standing of the lawyers instructed.
I cross-checked my assessment with what I considered to be reasonable and proportionate in all the circumstances. I expected – as all judges would expect – that the lawyers in the case would conscientiously work within the budget which I had set. Sadly, I sense that they have not tried very hard to do so."
Future children litigation costs: appeal
Future children litigation costs: the five-day hearing
Part III costs: now to First Appointment
Costs of other proceedings
The wife's application to be released from her undertaking
"It is, I suppose, inconsistent with the admitted existence of a discretionary jurisdiction to say that it can never be exercised unless a particular fact, such as a significant change of circumstances, is established. If a discretionary jurisdiction is shackled in that way, the result is, instead, that the jurisdiction does not even exist unless the fact is established. For all practical purposes, however, the Court of Appeal in the Mid Suffolk case gave valuable guidance. I summarise it as being that, unless there has been a significant change of circumstances since the undertaking was given, grounds for release from it seem hard to conceive."
i) There have been a number of significant changes in circumstances since she gave the undertaking on 15 June 2021. She points to inter alia the war in Ukraine which has had the consequence of restricting her ability to access funds in Russia. The husband does not accept, as an issue of fact, that the war in Ukraine has restricted the wife's finances in the way she says it has.
ii) The undertaking has not functioned well in practice. As its terms are so restrictive, it has generated a significant number of interlocutory skirmishes because an order is required to authorise the release of funds from the Coutts account. This has had the consequence of increasing the parties' legal costs even further. I was told that sum in the region of £500,000 had been spent on litigation relating to legal costs alone.
iii) The wife should be able to pay her reasonable legal fees without needing to seek the husband's permission and the undertaking should be re-drawn on that basis.
"39. First, neither the claimant nor the court is entitled to control the defendant's choice of solicitors and counsel, and the payment of their proper costs of the way in which they conduct the case…
40. Secondly, the court will not give the claimant the right to require a solicitor and own client assessment of the defendant's costs…that would be an unjustified interference in the relationship between solicitor and client.
41. Thirdly, the court will not itself perform the function of a provisional assessor of costs.
43. Fourthly, the court will not in general impose a cap on the defendant's costs.
44. Fifthly, protection to which the claimant is entitled is in general that provided in the standard form of a freezing order, which is to the effect that the defendant may use the frozen assets for the payment of his reasonable legal costs which provided that he informs the claimant as to the source of those payments."
"10. It is undesirable for the claimant or the court in the course of hostile litigation, to take up time and to invade the relationship between the defendant and his solicitor, by enquiring about, or challenging, save where it is necessary, the costs that the defendant is incurring. It would be unfair on the defendant to put him in the position of having a solicitor who is looking over his shoulder and worrying all the time about how much is being spent. Furthermore, the solicitor is an officer of the court, and should know that the defendant can only be required to pay reasonable costs and any order made today will reflect that. Indeed, Mr Richard Slade of Bracher Rawlins, the defendant's solicitors, accept that.
11. If a solicitor, acting for a defendant who is subject to a freezing order which only allows him to spend money on "reasonable" legal costs can be shown knowing to have permitted his client to pay costs which were plainly not reasonable, then it seems to me as a matter of principle the solicitor would probably be in contempt of court. …
14. I am not prepared to impose a cap. It seems to me, particularly in this litigation that it would be a recipe for further applications…"
"In step with the modern recognition of the vital public importance of transparency, my default position for the future will be to publish my financial remedy judgments in full without anonymisation, save as to the identity of children. Derogations from that default position will have to be distinctly justified."
"This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court."
The early legislation
Mode of taking Evidence.
Subject to such Rules and Regulations as may be established as herein provided, the Witnesses in all Proceedings before the Court where their Attendance can be had shall be sworn and examined orally in open Court: Provided that Parties, except as herein-before provided, shall be at liberty to verify their respective Cases in whole or in part by Affidavit, but so that the Deponent in every such Affidavit shall, on the Application of the opposite Party or by Direction of the Court, be subject to be cross-examined by or on behalf of the opposite Party orally in open Court, and after such Cross-examination may be re-examined orally in open Court as aforesaid by or on behalf of the Party by whom such Affidavit was filed.
Therefore, whatever the nature of the proceedings, all evidence had to be given orally in, or as if in, open court.
The Judge Ordinary of the Court for Divorce and Matrimonial Causes may sit in Chambers.
It shall be lawful for the Judge Ordinary of the Court for Divorce and Matrimonial Causes for the Time being to sit in Chambers for the Despatch of such Part of the Business of the said Court as can in the Opinion of the said Judge Ordinary, with Advantage to the Suitors, be heard in Chambers; and such Sittings shall from Time to Time be appointed by the said Judge Ordinary.
Section 2 provided:
The Treasury to cause Chambers to be provided.
The Commissioners of Her Majesty's Treasury shall from Time to Time provide Chambers in which the said Judge Ordinary shall sit for the Despatch of such Business as aforesaid, and until such Chambers are provided the said Judge Ordinary shall sit in Chambers in any Room which he may find convenient for the Purpose.
Section 3 provided:
Powers of Judge when sitting in Chambers.
The said Judge Ordinary when so sitting in Chambers shall have and exercise the same Power and Jurisdiction in respect of the Business to be brought before him as if sitting in open Court. (emphasis added)
" … Judges' summonses are heard, with the same powers as if in open Court, in the Judge's private room [adding in a footnote] usually at 10.30 on Saturdays"
There was a sound practical reason for these arrangements. The Royal Courts of Justice did not open until 1882. From 1858 until 1882 the new Divorce Court sat with the three common law courts in Westminster, where the accommodation was very cramped. Thus, it would have made sense to allow as much business as possible to be dealt with in the judge's private room.
"7. The Judges of the Divorce Division sit, at the Royal Courts of Justice, at the same times as the other Judges of the High Court, ordinarily in open Court.
8. Power to sit in camerâ is inherited from the Ecclesiastical Courts which, however, so far as reported, appear to have only so acted in cases of nullity of marriage, for incapacity.
9. In cases where the ends of justice might be defeated, owing to the dif?culty of obtaining the necessary evidence from witnesses in open Court the Judges sometimes exercise their inherent jurisdiction, and exclude the public from the Court during the whole, or part, of the hearing.
10. Occasionally, when the details of the case are very unpleasant, the Judge clears the Court of women and children.
11. It is the practice to hear motions in Court …"
The Registrars to do all Acts heretofore done by Surrogates.
The Registrars of the Principal Registry of the Court of Probate shall be invested with and shall and may exercise with reference to Proceedings in the Court for Divorce and Matrimonial Causes the same Power and Authority which Surrogates of the Official Principal of the Court of Arches could or might before the passing of the Twentieth and Twenty-first Victoria, Chapter Seventy-seven, have exercised in Chambers with reference to Proceedings in that Court.
Thus, all proceedings before Registrars were held in chambers.
Scott v Scott
"I shall proceed to shew that an order that a cause shall be heard in camera never could have and never has had the meaning contended for by the respondent. Before doing so I wish to say a word about the two interpretations themselves. It has become evident to me in the course of the argument that there is much confusion of thought as to their respective effects and that the radical difference between them has often been forgotten. The language of the order provides for privacy at the hearing. It has nothing to do with secrecy as to the facts of the case. The learned judge interprets it as enjoining such secrecy. He realizes that having done so he is logically compelled to put all hearings in chambers on the same footing, and he therefore declares that under the procedure of our Courts there is an absolute obligation to perpetual secrecy as to what passes at the hearing of all summonses in chambers. No one has ventured to say before us a single word in defence of this part of the judgment. It is not too much to say that it is ludicrously at variance with the actual practice. Many thousands of summonses in actions are heard in chambers in the course of each year, and during all my experience at the Bar and on the Bench I have never heard it suggested that there is the slightest obligation of secrecy as to what passes in chambers. Everything which there transpires is and always has been spoken of with precisely the same freedom as that which passes in Court. Yet, as the judge acknowledges, the phrases "in camera" and "in chambers" are synonymous. We start, therefore, from the datum line that the judgment which we are asked to declare unappealable is confessedly based on reasoning which makes the whole lives of those who are professionally engaged in litigation one long series of criminal contempts of Court.
The first and to my mind the all-sufficient reason for giving to the order the plain meaning of the words used is that the interpretation which is suggested on behalf of the respondent would make it an order which would be ultra vires of any judge or of any Court. Civil Courts exist solely to enforce the rights or redress the wrongs of those who appeal to them and for no other purpose. They have ample powers for so doing. They summon the defendant to come before them, they give both parties assistance in obtaining the necessary evidence, they hear the rival contentions, and finally they decree the appropriate relief if any. But they can do no more except that when called upon to do so they enforce the relief that they have granted. Beyond and besides this the Court acquires no power or jurisdiction over an individual by reason of his having become a litigant. He remains in all other respects as free and as independent of interference from the Court as he was before the suit was instituted or as any other member of the public is who has never been a litigant.
The suggested interpretation of the order is in direct violation of all this. Take for example the case of a suit for separation based upon grave moral charges, or (as in this case) a suit for nullity of marriage, where the defendant has been successful. He was brought into the suit by no act of his own, but by the summons of the Court. He has been present at the hearing not by bargain with the judge, but of right. And now it has been declared that the charges were unfounded. In virtue of what authority can the judge control the future actions of that man and say that he shall never speak of that which has passed at the hearing, including of course the oral judgment pronounced by the judge? How has that defendant surrendered or forfeited any part of his personal freedom of action? He is sui juris and remains so, and the fact of his having been compelled to be a litigant cannot put him for all time in the position of being in statu pupillari to the judge before whom the cause has come, so that such judge can impose upon him his personal views as to propriety or duty. I say "propriety or duty" advisedly, because in my opinion it is often not merely a solace but a duty which a man owes to himself and to those about him to inform them fully of all that has passed in these inexpressibly painful cases. It may be vital to him to clear away misconception in the minds of those who are dear to him or whose good opinion he values, and to obtain from them the sympathy and support that he needs. And I own that, not only as an individual but as a member of the Judicial Bench, I rebel against the suggestion that according to English law he may do this only so far as it may accord with the notions of some judge who, as such, has no more authority to act towards him as a moral director in his behaviour in life after the suit is over than has the man in the street.
I have taken the case of a defendant who is dismissed from the suit. But the argument is equally strong in the case of the petitioner. She comes before the Court as of right to obtain its aid in enforcing her rights. In accepting that aid she no more relinquishes her personal freedom of action than does the defendant in entering an appearance. The Court can impose no terms as a condition of its rendering its aid to parties in the enforcement of their claims. They have the right to demand that aid of the Court and it is there to give it without conditions. The same considerations apply to a defendant who is unsuccessful. The Court has the right and the duty to decree the proper relief against him, but it can do no more. It cannot add to that relief directions or commands as to his future conduct. If they are not part of the relief itself they are pronounced without authority. The conception of the Court interfering with litigants otherwise than by granting the relief which it is empowered and bound to grant is wholly vicious and strikes at the foundation of the status and duties of judges. We claim and obtain obedience and respect for our office because we are nothing other than the appointed agents for enforcing upon each individual the performance of his obligations. That obedience and that respect must cease if, disregarding the difference between legislative and judicial functions, we attempt ourselves to create obligations and impose them on individuals who refuse to accept them and who have done nothing to render those obligations binding upon them against their will.
It is this which makes me take so serious a view of the present appeal. The Courts are the guardians of the liberties of the public and should be the bulwark against all encroachments on those liberties from whatsoever side they may come. It is their duty therefore to be vigilant. But they must be doubly vigilant against encroachments by the Courts themselves. In that case it is their own actions which they must bring into judgment and it is against themselves that they must protect the public. The magnitude of the danger is illustrated by the present case. The serious encroachment on personal liberty which is here proposed is not supported by a single decision. There is on record no case where the Courts have asserted a right to control the personal acts of litigants after the conclusion of the suit except to enforce the relief granted. Yet without the support of any precedent the learned judge has in this case arrogated to judges the power to do so and we are asked to support him. The nature of the encroachment emphasizes the warning. Most people feel that the unrestricted publication in newspapers of what passes at the hearing of certain types of cases is a great evil, and many proposals have been made for regulating it. But all agree that this must be done by the Legislature. The judges are not the tribunal to decide on the proper limitations of public rights. The order in the present case is an attempt to assert for judges indefinitely wide powers in this respect. Not even the strongest partisan of legislative action has ventured to propose that private communications between individuals as to that which passes at the hearing of a suit should be interfered with. This order proceeds on the basis that a judge can of his own initiative absolutely forbid them. I have here to discuss the legal justification for such a doctrine and not its expediency, but I cannot forbear adding that in my opinion nothing would be more detrimental to the administration of justice in any country than to entrust the judges with the power of covering the proceedings before them with the mantle of inviolable secrecy."
The Administration of Justice Act 1960
" …. references to a court sitting in private include references to a court sitting in camera or in chambers."
In complete conformity with Scott v Scott, section 12(1) lists those sensitive types of proceedings which are covered with the mantle of secrecy, breach of which is a contempt of court. It provides (in its current, amended, form):
"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases that is to say -
(a) where the proceedings
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;
(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;
(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published"
The list of statutes mentioned in subsection 1(a) and (b) does not include the Matrimonial Causes Act 1973. A financial remedy case which is not mainly about child maintenance is therefore not a secret proceeding under this provision. Essentially, by section 12 of the 1960 Act Parliament put Scott v Scott on a statutory footing.
"Section 12 is a somewhat opaque provision, and the fear of breaching it and the costs involved in litigation have acted as a major disincentive to journalists and others reporting on Family cases. The 1960 Act was concerned to protect and support the administration of justice. Now, some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision"
In the absence of an order (or, as will be seen, a rubric) relaxing its terms Section 12 certainly does prevent almost all reporting of a children's case. But section 12 was nothing new. As I have explained, it did no more than to put the decision in Scott v Scott on a statutory footing.
"The rubric is not an injunction: see Re HM (Vulnerable Adult: Abduction) (No 2)  EWHC 1579 (Fam),  1 FLR 97. It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by section 12(3) of the Human Rights Act 1998 and Practice Direction 12I: Applications for Reporting Restriction Orders will not have been complied with."
"15.? … the publication of a judgment in a case in the Family Division involving children, is subject to the restrictions in section 12(1)(a) of the Administration of Justice Act 1960. To publish or report such a judgment without judicial approval is therefore a contempt of court irrespective of whether or not it is in a form which also breaches section 97(2) of the Children Act 1989.
16. ? The rubric is in two parts and serves two distinct functions. The first part ("The judge hereby gives leave for it to be reported") has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part ("The judgment is being distributed on the strict understanding that …") makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric."
The status of a hearing in chambers: the modern view
"(1) The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available, but if requested, permission should be granted to attend when and to the extent that this is practical. (2) What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested. (3) If members of the public who seek to attend cannot be accommodated, the judge should consider adjourning the proceedings in whole or in part into open court to the extent that this is practical or allowing one or more representatives of the press to attend the hearing in chambers. (4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. (5) The position summarised above does not apply to the exceptional situations identified in s12(1) of the Act of 1960 or where the court, with the power to do so, orders otherwise."
"The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness."
"19. CPR 39.2(4) recognises that orders for anonymity of parties and witnesses may be made. The common law has long recognised a duty of fairness towards parties and persons called to give evidence, see In Re Officer L  UKHL 36;  1 WLR 2135, and balanced that against the public interest in open justice in specific cases. Under the common law test subjective fears, even if not based on facts, can be taken into account and balanced against the principle of open justice. This is particularly so if the fears have adverse impacts on health, see In Re Officer L at paragraph 22 and Adebolado v Ministry of Justice  EWHC 3568 (QB) at paragraph 30.
20. With the advent of the Human Rights Act 1998 the Courts have also been able to give effect to the rights of parties and witnesses who may be at "real and immediate risk of death" or a real risk of inhuman or degrading treatment if their identity is disclosed, engaging articles 2 and 3 of the ECHR. A person's private life may also be affected by court proceedings, engaging article 8 of the ECHR. The common law rights of the public and press to know about court proceedings are also protected by article 10 of the ECHR, see Yalland v Secretary of State for Exiting the European Union  EWHC 629 (Admin) at paragraph 20. The importance of the press interest in the names of parties was explained by Lord Rodger in Re Guardian News and Media Ltd  UKSC 1;  2 AC 697 at 723. At paragraph 22 of In re S (a child)  UKHL 47;  1 AC 593 the House of Lords affirmed that the inherent jurisdiction of the High Court to restrain publicity was the vehicle by which the Court could balance competing rights under articles 8 and 10 of the ECHR.
21. Lord Steyn addressed the way in which competing human rights should be balanced in In re S (A child) at paragraph 17. He stated that when considering such a balancing exercise four principles could be identified.
"First, neither article has as such precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test".
It is also necessary to have particular regard to: the importance of freedom of expression protected by article 10 of the ECHR; the extent to which material has, or is about, to become public; the public interest in publishing the material; and any privacy code; pursuant to section 12 of the Human Rights Act 1998. Many of these principles were rehearsed by Haddon-Cave LJ in paragraphs 20 to 29 of Moss v Information Commissioner  EWCA Civ 580, a case in which issues not dissimilar to those in this case arose."
"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."
I would draw particular attention to paras 2 and 6. Of course, the systematic endorsement of the rubric does not comply with these principles.
Clibbery v Allan
"The hearing or consideration shall, unless the court otherwise directs, take place in chambers."
"In order to achieve compliance with 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."
And at  Thorpe LJ stated:
"Accordingly I have no difficulty in concluding that in the important area of ancillary relief, … all the evidence (whether written, oral or disclosed documents) and all the pronouncements of the court are prohibited from reporting and from ulterior use unless derived from any part of the proceedings conducted in open court or otherwise released by the judge." (Emphasis added)
It is not easy to reconcile these statements with the terms of section 12(1) of the Administration of Justice Act 1960 or Scott v Scott.
The judgment template of 2002
"…in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court."
The original rubric used in 2002 was very similar, but not identical, to the current rubric. An example of the rubric in its early form is found in M v L  EWHC 328 (Fam) decided by Coleridge J on 28 February 2003. It states:
"The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved."
Conclusion about the effectiveness of the rubric
"This judgment was delivered in private. The judge hereby gives permission – if permission is needed – for it to be published."
A rubric in very similar terms was applied to the judgment in Spencer v Spencer  EWHC 1529 (Fam),  2 FLR 1416 by Munby J.
"What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG –v- Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell –v- MGN Ltd at para 59 "judges are not newspaper editors" … this is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report in some austere, abstract form, devoid of much of its human interest could well mean that the report would not be read and the information would not be passed on."
Or as Lord Steyn put it in Re S at :
"…from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial. If newspapers choose not to contest such an injunction they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."
"AJA 1960, s 12 and CA 1989, s 97 apply to children cases, but not to financial remedy proceedings following divorce where there are no children involved. However, the court restricts publication of confidential financial information disclosed in financial remedy proceedings pursuant to the powers and principles established in Clibbery v Allen (No 2)  EWCA Civ 45, Lykiardopulo v Lykiardopulo  EWCA Civ 1315 and HRH Louis Xavier Marie Guillaume v HRH Tessy Princess of Luxembourg & Anor  EWHC 3095 (Fam). Accordingly, the Financial Remedy Courts now ordinarily control the release of information for publication, where this is sought, by an express order."
I agree that this passage reflects current practice. But for the reasons I have set out above, current practice does not correctly reflect the terms of the law. I repeat: the law, when properly understood, permits information about financial remedy proceedings and judgments (in cases which are not mainly about child maintenance) to be published unless the court has made a specific order preventing publication. The premise of the quoted passage is that financial information disclosed, and referred to, in the proceedings is confidential or secret and therefore cannot be reported without the court's express permission. The correct position is the other way round: financial information referred to in the proceedings is not secret and can be fully reported unless the court makes a specific order preventing publication. The difference is that under the (erroneous) former position the journalist has to ask for permission to report something heard in court whereas under the (correct) latter position a party has to ask for an order preventing the journalist from reporting it.
"…the journalist/legal blogger is not allowed to see any documents without the leave of the court. All financial remedy cases are heavily document-based. All the key evidence is in writing and the main submissions on the law and the facts are in written skeleton arguments. Without sight of these documents a journalist/legal blogger cannot begin to understand what the case is about, and the right to attend and report the hearing is largely rendered meaningless."
This is undoubtedly true. I cannot see, however, that it would be a contempt of court for a party to give a copy of the skeleton argument of her counsel to a journalist/blogger, or even to hand over the skeleton argument of her opponent. The provision of such documents would not transgress section 12(1) of the 1960 Act unless the case was about child maintenance. If neither party gives the journalist/blogger the skeletons then the journalist/blogger would have to apply to the court for an order providing them. That application would be determined by applying the principles in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 and granted unless good reasons are shown in opposition.
"I question whether it was necessary for Mr Justice Mostyn to publish the names of Alvina and Michael, could their names not been anonymised whilst at the same time the judgment still provide transparency?"
With respect, that is the wrong question. The correct question is not:
"Why is it in the public interest that the parties should be named?"
"Why is it in the public interest that the parties should be anonymous?"
If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.
Judicial Proceedings (Regulation of Reports) Act 1926
"a concise statement of the charges, defences and counter-charges in support of which evidence has been given"
(i) the names, addresses and occupations of the parties and witnesses;
(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.
Decision on anonymity in this case
"Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court)."
The power of the Family Procedure Rule Committee to make rules under this subsection is strictly confined to making something presently punishable as contempt not so punishable. It cannot make rules the other way round to make punishable as contempt something that is not presently so punishable. Therefore, any change to make financial remedy judgments systematically anonymous has to be done by primary legislation.
Note 1 In Clibbery v Allan  EWCA Civ 45,  Fam 261 at  and  Butler-Sloss P cited rules 40, 124, 162, 176, 192 and 205. Those rules were from the 1865 set as they stood in 1903. [Back] Note 2 Maintenance is the term for periodical payments after divorce; permanent alimony is the term for periodical payments after judicial separation. [Back] Note 3 Subsection 1(a) as originally enacted stated “where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant”. The current form of wording was substituted by the Children Act 1989 Sch.13 para.14 with effect from 14 October 1991. The change of language makes no difference to the reportability issue. [Back] Note 4 Although it is not directly relevant to this judgment, it is worth pointing out that many details about a child case are not prohibited from publication by section 12(1): see Re B  EWHC 411 (Fam),  2 FLR 142, para 82(v) per Munby J. This includes the names and addresses of the parties and the child. However, other provisions, such as section 97 of the Children Act 1989, may suppress those details. [Back] Note 5 For a party to show a journalist or blogger a document disclosed by the other party (as opposed to that other party’s skeleton argument) prima facie would amount to a breach of the implied undertaking not to use such documents for a collateral or ulterior purpose and thus would be a contempt of court: Harman v Home Office  1 AC 280. However, per Lord Roskill at 327, if the journalist is engaged in fair and accurate day-by-day reporting, and uses the document to that end, then that would be regarded as being for the immediate purpose of the litigation in question and not as collateral or ulterior to it. [Back]
Note 1 In Clibbery v Allan  EWCA Civ 45,  Fam 261 at  and  Butler-Sloss P cited rules 40, 124, 162, 176, 192 and 205. Those rules were from the 1865 set as they stood in 1903. [Back]
Note 2 Maintenance is the term for periodical payments after divorce; permanent alimony is the term for periodical payments after judicial separation. [Back]
Note 3 Subsection 1(a) as originally enacted stated “where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant”. The current form of wording was substituted by the Children Act 1989 Sch.13 para.14 with effect from 14 October 1991. The change of language makes no difference to the reportability issue. [Back]
Note 4 Although it is not directly relevant to this judgment, it is worth pointing out that many details about a child case are not prohibited from publication by section 12(1): see Re B  EWHC 411 (Fam),  2 FLR 142, para 82(v) per Munby J. This includes the names and addresses of the parties and the child. However, other provisions, such as section 97 of the Children Act 1989, may suppress those details. [Back]
Note 5 For a party to show a journalist or blogger a document disclosed by the other party (as opposed to that other party’s skeleton argument) prima facie would amount to a breach of the implied undertaking not to use such documents for a collateral or ulterior purpose and thus would be a contempt of court: Harman v Home Office  1 AC 280. However, per Lord Roskill at 327, if the journalist is engaged in fair and accurate day-by-day reporting, and uses the document to that end, then that would be regarded as being for the immediate purpose of the litigation in question and not as collateral or ulterior to it. [Back]