Privacy, Litigation and Arbitration

Or, how not to wash your dirty laundry in public

Adele is by all accounts a very private person. She is, if the tabloids are to be believed, ‘publicity shy’ or even ‘super shy’, to the point of being ‘reclusive’.

The news in 2019 of the breakdown of her marriage to Simon Konecki broke with a flurry of headlines speculating about the financial terms of their divorce. According to The Times (“Adele’s Husband Will be Rolling In It After Divorce”, 21 April 2019), Adele “…could be forced to hand half of her £140m fortune to her husband”.

That, admittedly, is not a view likely to be shared by anyone with (a) actual knowledge of the case, or (b) even a passing acquaintance with Family Law 101. However, in fairness to the Times, the article wasn’t written by its Legal Editor, but an Entertainment Correspondent. This tells you everything you need to know about the news values that apply to celebrity divorce stories, where the emphasis is firmly on ‘celebrity’. 

The risks of going to court

Advising a celebrity who is about to go to court in a family case, or indeed anyone who wants to keep their private business private, brings the question of publicity into focus. Will the press actually be there? If they do attend, will the hearing be in private, with restrictions on what can be published, or is there a possibility that the hearing will be conducted in open court?

The applicable rules can be summarised as follows:

  1. Family hearings are normally heard in private (Family Procedure Rules 2010 (“FPR”), r. 27.10); 
  2. Accredited members of the media may attend private hearings (FPR r.27.11(2)(f)), as may legal bloggers, in accordance with a Pilot Scheme at FPR PD 36J. An exception to this rule arises where a hearing is conducted for the purpose of judicially assisted conciliation or negotiation, such as a Financial Dispute Resolution appointment, where neither media nor legal bloggers can attend (FPR r. 27.11(1));
  3. What the media can actually report at a private hearing will generally be extremely limited to whether the parties actually attended, the nature of the hearing and the identity of the lawyers etc. (reminiscent of the convention that prisoners of war only give name, rank and serial number). In practice, this may not prevent some news organisations, such as the Mail Online from publishing endless photographs of the parties taken outside the court building, with the dubious hook of the news story being that the parties’ attended court;
  4. The court has a discretion to exclude the media completely, such as where the interests of a child require, (FPR r. 27.11(3), although in practice this is difficult to achieve;
  5. Equally, the court has a discretion to conduct the hearing in open court (FPR r. 27.10), which in practice has been sparingly used, most commonly in cases heard by Mr Justice Holman.

The decision to hold a hearing in open court can have significant consequences. Most famously, in Spencer v Spencer, the Earl settled for an additional £1m after Mr Justice Munby (as he then was) decided that the hearing would be in open court. According to the Guardian, the Earl subsequently sought to recover the additional sum from his advisers, who he contended had not warned him of the possibility of the hearing not being in chambers.

An added complication is that for several years in the Family Division of the High Court, one judge, Mr Justice Holman has generally exercised the discretion in favour of hearings in open, while most other judges invariably resolve the issue the other way and sit in chambers (in private). Anyone who doubts the insatiable newspaper appetite for family law should consider the case of Fields v Fields[2015] EWHC 1670. After Holman J directed that the case should be heard in open court, the details of the parties’ claims and their high legal costs made the front page of the Telegraph, despite neither party previously having any public profile, and the case being of limited legal interest. In Fields, the parties had the misfortune of being photogenic enough to merit the front page. 

It used to be the case that the damage from adverse press reports could be short lived: today’s headlines are tomorrow’s fish and chip paper. However, as Aaron Sorkin put it so brilliantly in ‘The Social Network’, thanks to Google etc, this no longer applies: “The internet’s not written in pencil. It’s written in ink”. 

Reputational damage that arises from a bad headline will now last for as long as the information appears on a Google search.

Alternative Dispute Resolution: Arbitration

So, even in the family court, there are risks of publicity. But there are alternatives. There is, for example, mediation, although a mediator’s role is limited: he or she can broker a settlement, but cannot decide an issue where the parties disagree. What options might Adele have if Mr Konecki, fortified by the views of the Times’ Entertainment Correspondent, decides he won’t take a penny less than £70m?

The answer – in terms of a private but also determinative forum – lies in arbitration. Since 2012, divorcing couples have been able to put their disputes to a privately instructed arbitrator, accredited by the Institute of Family Law Arbitrators. The application is made on an ‘ARB FS1’ form, jointly signed by both parties, which may nominate the preferred arbitrator.

A key element of any arbitration is privacy: Article 16.1 of the IFLA Arbitration Rules provides “…The general principle is that the arbitration and its outcome are confidential, except insofar as disclosure may be necessary to challenge, implement, enforce or vary an award (see Art.13.3(c)), in relation to applications to the court or as may be compelled by law”.

In other words, the media has no right to attend an arbitration. Nor would they receive any notice of the venue of the arbitration (unlike court lists which are posted in the court building). The only possibility of the confidentiality of an arbitration being breached would be where a court hearing takes place, either to enforce compliance, or where one party seeks to oppose the making of a court order in terms of the final arbitral award (See Haley v Haley [2020] EWCA Civ 1369)

Much has been made of the advantages of arbitration, which is sometimes described as the BUPA option compared with going to court: that the hearing can take place speedily, where the parties control which issue are put to the arbitrator’s decision etc. However, the key advantage for anyone seeking to protect their public profile, and to avoid further washing of dirty laundry, is that arbitration offers far greater privacy.

Alexander Chandler MCIArb

Originally Published by the Transparency Project, 9.5.19, subsequently amended 22.1.21

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