The importance of privacy in ancillary relief proceedings – High Court

16 September 2015 by Rosalind English

DL v SL [2015] EWHC 2621 (Fam) 27 July 2015 (Mostyn J)  – read judgment

This was a simple, if contentious, divorce case in which the judge took the opportunity to make a point about balancing the principle of open judgment – allowing media coverage of cases – against the privacy of the parties involved. Whilst he was ready to acknowledge that publicity ensures not only the probity of the judge but the veracity of the witnesses, and that such publicity served promote understanding and debate about the legal process, in some cases privacy should trump the rights of the press.

There are many cases which are heard publicly, or privately with the media in attendance, but where, by a process of anonymisation, the privacy of the parties, and of their personal and other affairs, is sought to be preserved. This compromise, or balance, between open justice and the privacy of the individual has arisen for two reasons. First, the increased recognition that is given to the interests of children who are caught up in the dispute between the adult parties. And secondly, the rise of the idea that privacy is an independently enforceable right.

Similarly, anonymity is ordered as a matter of course in where the subject matter of the proceedings can rightly be categorised as “private business”. Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle. Interesting the right to anonymity in such circumstances is enshrined under Article 14 of the 1966 International Covenant on Civil and Political Rights. In Mostyn J’s view

Article 14 creates a presumption against public judgment in matrimonial disputes, and therefore it logically follows that the proceedings should not be public either as otherwise the privacy of the judgment would be fatally undermined.

Parliament has decided that in ancillary relief proceedings (and indeed in all other family proceedings with very few exceptions), the press should act as the “eyes and ears” of the public, but that members of the public themselves should not be admitted: see section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968. It is true that stories about particular individuals are simply much more attractive to readers than stories about unidentified people, as Lord Steyn observed in Re S [2004]:

… 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.

However,  in Mostyn J’s view the question of whether a party’s private affairs should be laid bare in the national press should not depend on whether the report of the case is thereby more newsworthy and therefore likely to gain a higher circulation for the publisher.

the present divergence of approach in the Family Division is very unhelpful and makes the task of advising litigants very difficult. A party may well have a very good case but is simply unprepared to have it litigated in open court. The risk of having it heard in open court may force him or her to settle on unfair terms. In my opinion the matter needs to be considered by the Court of Appeal and a common approach devised and promulgated.

Factual background

These were divorce proceedings that had been stalled for over a year by repeated applications for adjournments by the husband (representing himself), on the basis of unsatisfactory medical certificates that the court rejected. Almost every other order made in the proceedings had been challenged by way of an appeal or by an application for an adjournment.

The matter was described by the judge as an “extremely simple case”,

which the husband (even if he is medically disadvantaged in the way that the letter suggests that he is) should be well able to deal with over today and tomorrow. Moreover, it has become apparent to me as the submissions this morning have been made that the husband is (as I confirmed to myself on the previous occasion) a highly intelligent and articulate man who has every fact and every figure at his fingertips. He probably knows this case better than anyone in this courtroom.

The liabilities in the dispute far outreach the assets. On the second day of the hearing the parties reached terms of settlement and the judge later made a consent order, which is confidential, bringing this matter to a conclusion. The media have been prevented from publishing any material leading to the identification of the parties or relating to any financial details in the case.
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