PRIVACY, SECRECY AND THE FINANCIAL REMEDIES COURT

The Go-Between by L.P. Hartley starts with one of the most celebrated opening lines in literature:

“The past is a foreign country; they do things differently there”.

Historically, the same could be said of the Family Division, where a husband or wife could obtain a Mareva injunction, or pierce the corporate veil, in circumstances which would surprise commercial litigants. “The matrimonial field calls for a different approach”, held Lincoln J in Shipman [1991] 1 FLR 250, “To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions”. Family law was effectively a foreign country (‘a desert island’, even an ‘Alsatia’); the judges did things differently there.

Over the past fifteen years, the concept of family law exceptionalism – or, to quote Mr Justice Mostyn, ‘the cult of the silo’ – has been in steady retreat. Sir James Munby led the charge in a series of judgments that reminded practitioners that:

‘…even in the Family Division, a spouse who seeks to extend her claim for ancillary relief to assets which appear to be in the hands of someone other than her husband must identify, and by reference to established principle, some proper basis for doing so… the court can[not] simply ride roughshod over established principle… the relevant legal principles which have to be applied are precisely the same in the [Family] Division as in the other two Divisions. There is not one law of ‘sham’ in the Chancery Division and another law of sham in the Family Division… just as there is but one set of principles, again equally applicable in all three Divisions, determining whether or not it is appropriate to “pierce the corporate veil”.’ A v A [2007] EWHC 99 (Fam) at [19, 21]

“…… the illusion that there is some special inspiration of common sense infusing the Family judges and which is lacking in our brethren in the Chancery Division – an illusion no doubt fostered by our inveterate practice of sitting in private – seems to be as prevalent today as ever. It cannot be stressed too much that there is simply no basis for this illusion… The Family Division applies precisely the same principles, and in precisely the same way, as the Chancery Division, or for that matter the Queen’s Bench Division.” (Whig v Whig [2007] EWHC 1856 (Fam) [58, 60])

“…The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply. The rules of agency apply there as much as elsewhere.” (Richardson v Richardson [2011] EWCA Civ 79 at [53]).

That conclusion, that legal principle applies across the board, was reached by Sir James Munby, Lord Sumption JSC and Mr Justice Mostyn in cases involving: sham (A v A (above)), third party interests (TL v ML [2005] EWHC 2860 (Fam)), agency (Richardson (above)), piercing the corporate veil (Prest v Petrodel [2013] UKSC 34), freezing orders (UL v BK [2013] EWHC 1735), the issue of a witness summons (Kerman v Akhmedova [2018] EWCA Civ 307) etc. To that list one can add Court of Appeal decisions that disapproved family exceptions in relation the human rights of a judgment debtor (Mubarak v Mubarak [2001] 1 FLR 698) and self-help in disclosure (Imerman v Tchenguiz [2010] EWCA Civ 908).

That is not to say that the process of reunification, or reconciliation of the desert island with the mainland, is, or could ever be perfect. There remain fundamental differences between the family court’s ‘quasi-inquisitorial’ function, particularly where a child’s welfare is at stake, and how civil claims are determined. Anyone who has dealt with a combined Schedule 1 and TLATA case will know just how different it is to case manage, or meld, family and civil claims together, down to the conflicting rules about bundles and position statements.

Transparency

One notable hold out in the retreat of family law exceptionalism has been the tradition of secrecy in the family court. As President of the Family Division, Sir James Munby took steps to promote greater transparency, encouraging the publication of more judgments (Practice Guidance of 16 January 2014) and extending the existing right of the press to attend most family hearings to legal bloggers (now PD27B). However, in written submissions to Sir Andrew McFarlane’s Transparency Review, dated 6 May 2011, Sir James acknowledged that those attempts to open up the family court had actually achieved very little: “…the practical impact…has been minimal”, in large part due to (i) the “chilling effect” of Section 12 of the Administration of Justice Act 1960, (ii) that the right of accredited members of the press and legal bloggers to attend court had not been accompanied by a relaxation of the rules about what could be published, or which documents could be accessed. The law in relation to press access to documents in the family court remained inordinately complex and unpredictable. The position had become further confused by a difference of approach to the court’s discretion to sit in open court, with one Family Division Judge (Mr Justice Holman) generally sitting in open court, while his colleagues generally sat in private.

On 28 October 2021, Sir Andrew McFarlane published ‘Confidence and Confidentiality’, which received the baton from Sir James Munby, and advanced a series of ambitious plans to finally open up the family court, including a proposed reform of the law and relaxation of s.12 to allow journalists to access court documents and publish what takes place in the family court, with the encouragement for the publication of 10% of all family court judgements.

Those plans have been put out to consultation and the Farquhar Committee has been given the task of preparing a report on issues of transparency in the Financial Remedies Court. That report (Farquhar III: the Final Frontier[1]) is still awaited.

Five decisions of Mostyn J on Privacy and Secrecy (November 2021 – June 2022)

The reason for this blog is to reflect on five recent judgments of Mr Justice Mostyn which, taken as a whole, involve a radical review of the practices of the family court, and the conclusion that we as family lawyers have been misapplying the law, in relation to the secrecy of financial remedy proceedings, since the Second World War.

A key theme in these authorities is the distinction between privacy (e.g., a court sitting in in camera or in chambers) and the proceedings being shrouded in secrecy. The decisions are as follows:

BT v CU [2021] EWFC 87

A v M [2021] EWFC 89         

Aylward-Davies v Chesterman [2022] EWFC 4

Xanthopoulos v Rakshina [2022] EWFC 30

Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52

Space prevents a detailed examination of each of these cases. However, the key points, in relation to the theme of this blog, are as follows:

BT v CU(1 November 2021)

The case started with a question: “was COVID capable of being a Barder event?” and concluded in a wide-ranging judgment that critically examined the law in relation to the court’s power to review executory orders, the distinction between lump sum orders by instalment and a series of lump sums and, finally, the practice of anonymising judgments.

In BT v CU, Mostyn J concluded that moves towards transparency had called into question the family court’s inveterate practice of anonymising first instance financial remedy judgment (cf. Lykiardopulo [2010] EWCA Civ 1315 at [45] and [79]), whereby the convention of naming the parties only on appeal is now “impossible to defend”. While the court anonymised the parties’ names in BT v CU (in part because both parties had a reasonable expectation that they would not be named), Mostyn J signalled that “…my default position from now on will be to publish financial remedy judgments in full  without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations”

A v M(9 November 2021)

In A v M, Mostyn J again anonymised his judgment but repeated his warning as to his default position in future. The learned judge turned his attention to the historical development of the law in relation to anonymisation, and concluded

“[105]… I do not believe that there is any such right [to anonymity]. My personal research tells me that before the 1939 – 1945 War, and indeed until much more recently, there was no anonymity in the Probate Divorce and Admiralty Division (‘PDA’), children and nullity cases apart, and  even then only sometimes…Even in nullity cases a general rule that they should be heard in camera was unlawful: Scott v Scott [1913] AC 417, HL. That case, far from being a paean to PDA [Probate Divorce and Admiralty Division] exceptionality, is, in truth, precisely the contrary. It is a clear statement (to adopt modern metaphors) that the PDA was neither Alsatia nor a desert island: see Earl Loreburn at 447, where he succinctly stated: “… the Divorce Court is bound by the general rule of publicity applicable to the High Court and subject to the same exception.”

[106] … So far as I can tell, the practice of anonymising judgments given by High Court judges is explicable only by reference to the hearing having been in chambers and behind closed doors. But that of itself would not explain the adoption of the practice as a chambers judgment is not secret and is publishable whether or not anonymised: see Clibbery v Allan and Another [2001] 2 FLR 819 at [24] – [33], [74], [117] – [118] and [150]. I have not been able to discover any statement of practice made at any time before Thorpe LJ’s judgment in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 (at [45] and [79]) explaining, let alone justifying, the convention (whenever it arose) of routinely anonymising almost all ancillary relief judgments given by High Court judges. That convention is very hard, if not impossible, to square with the true message of Scott v Scott which is that the Family Courts are not a desert island.

Aylward-Davies v Chesterman [2022] EWFC 4 (4 February 2022)

The case involved two litigants in person and an application for a declaration of parentage. The judgment is noteworthy, (i) as the first case in which Mostyn J followed his default position and named the parties, and (ii) because the learned judge cast the net beyond the question of anonymisation to the bigger question of whether the press could report financial remedy proceedings. Mostyn J concluded as follows:

[27] Had a member of the press or a legal blogger attended I consider that they could have reported everything that they heard during the proceedings. There are no minor children affected even peripherally by the application. It is impossible to see on what basis a reporting restriction order could have been made (italics added).

That view runs contrary to the Court of Appeal’s conclusions in Clibbery v Allen [2002] EWCA Civ 45, per Thorpe LJ at [72] which justified the confidentiality of financial remedy proceedings (to the extent that they were not protected by s.12 of the 1960 Act) by reference to the implied undertaking:

“…the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking. 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. 

Xanthopoulos v Rakshina [2022] EWFC 30 (12 April 2022)

The second half of Mostyn J’s judgment in Xanthopoulous, from paragraph 74 to 139, contains a magisterial survey of the development of law in relation to anonymity, commencing with the Matrimonial Causes Act 1857, placing heavy emphasis upon the dissenting judgment of Fletcher Moulton LJ in the Court of Appeal in Scott v Scott [1912] P24, which 110 years after it was handed down, now seems remarkably prescient (if still somewhat archaic in its language): “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.”. Mostyn J proceeds to review the development of the law, including Clibbery v Allen, applying great significance to the 2009 reforms that first gave members of the press the right to attend most family hearings (originally FPR 1991 r. 10.28, now FPR 27.11).

Mostyn J’s conclusion is radical:

“[113] … it is now clear to me that the reasoning that led to the imposition of a mantle of secrecy in all ancillary relief cases stood on a very shaky foundation. The matter was put beyond doubt seven years later by a rule change… [permitting journalists to be present]

[115] … In my judgment, the privacy of the proceedings, which is the key factor relied on in Clibbery v Allan, is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court for the purposes of para 106 of Thorpe LJ’s judgment. In my opinion, in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings, is fully entitled to publish that information

…

In conclusion, the court concluded (i) there is no proper basis for the standard rubric that appears on court judgments, (ii) that the Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings, and (iii) with regards the issue of anonymisation

[138] …The correct question is not: “Why is it in the public interest that the parties should be named?” but rather: “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.

Gallagher v Gallagher (No. 1) (Reporting Restrictions) [2022] EWFC 52 (13 June 2022)

The last of this pentalogy of judgments is Gallagher in which the court identifies a checklist of the following eight principles (at [5]):

i) From the very start of the era of judicial divorce, proceedings had to be conducted either in open court or in chambers “as if sitting in open court”. There was not the slightest hint that matrimonial proceedings would be secret save in nullity cases alleging incapacity or where the ends of justice might be defeated. The decision of the House of Lords in Scott v Scott [1913] AC 417 definitively established that the Divorce Court was governed by the same principles in respect of publicity as other courts.

ii) By FPR 27.10 and 27.11, financial remedy proceedings are heard “in private”. The correct interpretation of these rules, in the light of Scott v Scott, is that they do no more than to provide for partial privacy at the hearing. They prevent most members of the general public from physically watching the case. Those rules do not impose secrecy as to the facts of the case.

iii) There is nothing in the various iterations of the Divorce Rules, Matrimonial Causes Rules, Family Procedure Rules or RSC Order 32 r. 11 supporting a view that proceedings heard in the Judge’s or Registrar’s chambers were secret. A chambers’ judgment is not secret and is publishable. Furthermore, the change of language in the FPR 2010 from “in chambers” to “in private” did not presage that ancillary relief proceedings should become more secret.

iv) By FPR 27.11, journalists and bloggers can attend a financial remedy hearing. If the case does not relate wholly or mainly to child maintenance, and in the absence of a valid reporting restriction or anonymity order, they can report anything they see or hear at the hearing. That some of the material under discussion would have been disclosed compulsorily does not constrain their right to report the hearing. The power under FPR 27.11(3)(b) to exclude a journalist or blogger to prevent justice being impeded or prejudiced confirms the unrestricted reportability of the hearing.

v) In the absence of a valid reporting restriction order the parties can talk to whomsoever they like about a financial remedy hearing, including giving an interview to the press. But they are bound by the implied undertaking not to make ulterior use of documents compulsorily disclosed by their opponents. This means that they cannot show such documents to a journalist unless that journalist was covering the case.

vi) The standard rubric on financial remedy judgments providing for anonymity cannot prevent full reporting of the proceedings or the judgment. This is because it is not a reporting restriction injunction, not merely because none of the procedures for making such an order have been complied with, but because it manifestly is not an injunction. It is not an anonymity order under CPR 39.2(4), not merely because no process for making such an order was followed, but more fundamentally because it is not such an order. Such an anonymity order can only be made exceptionally. The general rule is that the names of the parties to an action are included in orders and judgments of the court. There is no general exception for cases where private matters are in issue. 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 and, indeed of the parties.

vii) The court can only prevent reporting of a financial remedy hearing or judgment, or order that the identity of the parties be obscured by anonymisation, by making a specific order to that effect following an intensely focussed fact-specific Re S exercise of balancing the Art 6, 8 and 10 rights.

viii) The Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings.

The judgment is noteworthy for the following conclusion:

(1) The court does not share the preference of Mr Justice Holman to sit in open court

“[10] … I do not agree that it is necessary to hear all cases in open court in order to achieve full transparency. The hybrid arrangement ordained by Parliament when it endorsed FPR 27.10 and 27.11 achieves true transparency in two ways. First, the press and authorised bloggers act as the eyes and ears of the public in exactly the same way as they would if the case were heard in open court. Second, as explained above, there is no prohibition, in the absence of a specific individual order, on either party telling whosoever they please what has happened in court.

(2) A derogation from the rule of open justice can take two forms: a reporting restriction order or an anonymity order requiring the use of pseudonyms in any report of the proceedings:

“[25] … a derogation may be allowed only where an intensely focussed balancing exercise of the various rights protected by Articles 6, 8 and 10 leads to the conclusion that the privacy right should overreach the ancient principle. But it must be clearly understood that such a result will be exceptional and will require “strict justification”. This is clear from the statement of Dame Victoria Sharp PQBD in Griffiths v Tickle & Ors [2021] EWCA Civ 1882, at [35]:

” The open justice principle and the related rights under Articles 6 and 10 are all subject to exceptions, but these are narrow and circumscribed and their application in an individual case requires strict justification.”

[28] “…a decision in a financial remedy case leading to such an interference with a party’s rights cannot be done casually or automatically by rubric. It can only happen exceptionally as “a result of a Re S [2004] UKHL 47 balancing exercise.

(3) The distinction is again drawn between privacy and secrecy. The rule that the family court normally sits “in private” (FPR 27.10) “…does no more than to prescribe a mode of trial… it has nothing to do with secrecy as to the facts of the case” (at [33]);

(4) Where a judgment contains sensitive commercial information, that can be placed in a confidential annex but the parties should ordinarily still be named

[36] … I agree with Mr Farmer that if very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names. Redactions can be made of commercially sensitive information, but only to the extent that they are strictly necessary. But the redactions should not ever obscure the way the court has decided the case.

(5) The court rejected the submissions that (i) greater transparency might allow some litigants to effectively blackmail the other party (at [38]), (ii) that the application of open justice might cause distress to the parties (at [42]), or (iii) that the reporting of a judgment will indirectly name children: (“[45]…every sensational story about adults is likely to cause upset to the children of those adults. The story does not need to be about a court case for the children of the protagonists to be impacted.”

• In conclusion, the court ruled against anonymisation and permitted the press to read the parties’ position statements:

[72] … The resistance to letting sunlight into the Family Court seems to be an almost ineradicable adherence to what I would describe as desert island syndrome, where the rules about open justice operating in the rest of the legal universe just do not apply because “we have always done it this way”. In my judgment the mantra “we have always done it this way” cannot act to create a mantle of inviolable secrecy over financial remedy proceedings which the law, as properly understood, does not otherwise recognise. I do acknowledge, however, that the tenacity of desert island syndrome is astonishing. 

So, where does this leave us now?

Firstly, Mr Justice Mostyn’s conclusions, powerfully expressed as they are, have not found obvious favour with other High Court judges, who have preferred to adopt a ‘wait and see’ approach. Most financial remedy judgments – i.e. heard by judges other than Mostyn J – continue to be anonymised (an exception being Cohen J’s decision in Treharne v Lamb [2022] EWFC 27).

Secondly, the opposing view has been articulated by Mr Justice Moor who commented in IR v OR [2022] EWFC 20,

[29] I believe this [the threat of publicity] refers to proposed changes to the rules on anonymity in financial remedy proceedings but they are not in place yet. I am clear that, until I am told I have to permit publication, litigants are entitled to their privacy in the absence of special circumstances, such as where they having already courted publicity for the proceedings which is not the case here. 

Thirdly, the profession awaits the conclusion of the Farquhar Report III, and in due course, the recommendations of the Rules Committee in terms of giving effect to Sir Andrew McFarlane’s proposals to open up the family court to greater scrutiny.

Ultimately, the above five judgments of Mr Justice Mostyn, all of which merit careful reading, amount to a radical review of the law, in pursuit of the objectives of further transparency. Will these reset the family court’s traditional approach and deliver a mortal blow to what remains of the family law silo? The jury is still out, as to whether (to close with another quotation from L.P. Hartley);

“With the opening of the door, and the installation of electric light in the cupboard, the skeletons [what remains of family law exceptionalism] had crumbled into dust.”

Alexander Chandler KC

18 November 2022

Twitter: familybrief

Blog: familybrief.org  

Mastodon: familybrief

---

[1] That isn’t expected to be the name of the report. It’s a dad joke and a weak reference to the Star Trek films.

Introduction

1. One of the perennial complaints about family law is its lack of transparency; hearings are generally heard in private, first instance decisions are rarely reported, and what the press can report is often strictly restricted. The popular perception is that the family court operates ‘behind closed doors’.
2. To some extent, this is unfair. Since April 2009, steps have been taken towards open justice in family law, thanks in large part to initiatives taken by Sir James Munby and Sir Andrew McFarlane, respectively Presidents of the Family Division, from January 2013 to July 2018 and from July 2018 to date. However, as Sir James Munby as set out in a recent damning submission to the President’s Transparency Review (17 May 2021), the practical impact of these changes have been minimal because the access to proceedings has not been accompanied by any relaxation of the rules restricting reporting, as set out at S.12 of the Administration of Justice Act 1960. Sir James proposes radical reform including the repeal of S.12.
3. But the question of when press or legal bloggers can attend court, and/or report what has taken place, is a complicated one. It involves a consideration of several statutory provisions and differing procedural rules, depending on whether the case involves children, a prospective adoption or financial remedies. At the highest level (see Re Al M (Publication) [2020] EWHC 122 (Fam), concerning the ruler of Dubai), the court hears argument from the finest legal minds in the country, and conducts a complex balancing exercise between competing Article 6, 8 and 10 rights.
4. This paper does not purport to set out the final word on these complicated legal issues. Rather, it is a primer, which hopefully will provide some useful background when, very occasionally, your clerk tells you a member of the press wants to attend a hearing. The paper is divided into five sections:

[A]      Sitting in private or in open court

[B]       Media attendance at private hearings

[C]      Legal blogging, communication of information and reported judgments

[D]      Excluding the media from attending

[E]       Reporting restrictions: Statutory and High Court/ inherent jurisdiction

[A]      Sitting in private or in open court

[5] FPR Pt 27 contains several important rules about hearings and directions appointments, including, at r.27.10 that family proceedings[1]are held in private, and that “…the general public have no right to be present”[2].

[6] This general rule is subject to two main exceptions (r.27.10(1)(a) and (b)):

• where specific rules make provision for this, e.g., applications in relation to contempt of court which must be heard in open court (FPR 37.8(3)); and

• where the court directs the hearing should be in open court.

Discretion to sit in open court

[7] For the avoidance of doubt, the following section relates primarily to financial remedy hearings and not to children cases, which are invariably heard in private.

[8] The first reported family case when the above power was exercised[3] was Spencer v Spencer [2009] EWHC 1529 (Fam), a decision of Munby J (as he then was), which was met with some surprise by the parties and their advisors. The decision to hear that financial remedy claim in open court led in short order to settlement (the Earl reputedly significantly upping his offer), and in the fullness of time to a claim for professional negligence (ultimately discontinued) against his advisers for not warning him of this possibility.

[9] The power has been rarely exercised in the past ten years, apart from financial remedy claims heard by Mr Justice Holman, whose views about open justice are well known. Holman J invariably hears all such cases in open court and takes the view that “…the principle that courts normally sit in public underpins the rule of law in a free and democratic society” and that “…mere publication of a judgment does not achieve [true transparency, open justice and public accountability” (Luckwell v Limata, [2014] EWHC 502 (Fam) at [4]. None of the other Family Division High Court Judges share this view, and Mr Justice Mostyn draws the opposite conclusion:  “…it is my opinion that the rule [r.27.10] does incorporate a strong starting point or presumption which should not be derogated from unless there is a compelling reason to do so (DL v SL [2015] EWHC 2621 at [13])

[10] It is a matter of some frustration that this divergence of view, which effectively creates  a lottery (or Russian roulette) as to whether a financial remedies hearing takes place in private or in open court, has not yet been resolved by the Court of Appeal:

“…To say that the law about the ability of the press to report ancillary relief proceedings which they are allowed to observe is a mess would be a serious understatement. The chaotic state of the law has been fully set out by me in W v M (TOLATA Proceedings)…” Appleton v Gallagher [2015] EWHC 2689 (Fam) per Mostyn J at [6]

[B]       Attendance at private hearings

[11] It is important to separate out the question of who can attend a hearing from what can be reported in relation to what takes place in court. The question of attendance at a private hearing depends on the nature of the hearing. The question of reporting is still governed by S.12 of the 1960 Act (see below).

Hearings for conciliation/ negotiation

[12] If the hearing is conducted for the ‘purpose of judicially assisted conciliation or negotiation’, or it arises in exempted proceedings such as placement for adoption proceedings etc. (see FPR 27.11(1)(b)), no-one may be present in court except for the judge, the parties and their advisers.

[13] Accordingly, no member of the press[4] or legal blogger may attend a First Hearing Dispute Resolution appointments (FHDRA) or, in financial proceedings, an FDR (PD 27B, § 2.1). The caveat to the above is that this exception only applies to such part of the hearing where the judge is engaged in conciliation:

“…to the extent that the judge plays an active part in the conciliation process… Where the judge plays no part in the conciliation process or where the conciliation element of a hearing is complete and the judge is adjudicating upon the issues between the parties, media representatives should be permitted to attend, subject to the discretion of the court to exclude them on the specified grounds”[5]. 

Attendance at other hearings

[14] For other hearings, including findings of fact hearings, interim hearings, final hearings[6], the rule as to who can attend court is set out at FPR 27.11(2).

 i.e. ‘…no person… other than-

“(a) an officer of the court;

(b) a party to the proceedings;

(c) a litigation friend for any party, or legal representative instructed to act on that party’s behalf;

(d) an officer of the service or Welsh family proceedings officer;

(e) a witness[7];

(f) duly accredited representatives of news gathering and reporting organisations; and

(g) any other person whom the court permits to be present.”[15] Specific guidance on this rule is set out at PD 27B § 4, including how media representatives can identify themselves as accredited.

[C]      Legal blogging, communication of information and reported judgments

Legal blogging

[16] By virtue of the PD 36J, which gave effect to a pilot scheme from 1 October 2018 until (presently) 31 December 2021, the class of permitted attendees at r.27.11(2) was extended to include legal bloggers, i.e.

“(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes”

Specific guidance as to the meaning of these terms is set out at PD 36J (including a very precise definition of ‘lawyer’) and includes modifications to PD 27C relating to how lawyers can be identified.

[17] The main organisation who has taken up this opportunity is the Transparency Project (http://www.transparencyproject.org.uk), who are a responsible and professionally- run organisation, well worth following, e.g. on Twitter.

Micro-blogging/ Twitter

[18] Where a legal blogger attends, should they be allowed to ‘live tweet’? Since 2011, this has generally been permitted in the criminal and civil courts, where the court sits in open court[8]. Within the family courts, some specialist legal bloggers have now begun to live tweet hearings, having obtained the court’s permission, e.g. the recent Court of Appeal hearing in the conjoined appeals concerning domestic violence: Re HN [2021] EWCA Civ 448. 

Court documents and communication of information

[19] Attendance by the press does not mean that that members of the press or legal bloggers are entitled to ‘…receive or peruse court documents referred to in the course of evidence, submissions or judgment without permission of the court’ (PD 27B § 2.3). Accordingly, where the press wish to read such documents, an application should be made the court, who should conduct a balancing exercise taking into account the Convention rights (articles 6, 8, 10).

[20] The communication of information is covered by the following rules in the FPR:

• In children proceedings (except placement for adoption etc), at FPR r.12.73 and PD12G, which limits the communication to a party, McKenzie friend, advisors, CAFCASS officers etc. and those to whom “the court gives permission” (r. 12.73(1)(b));

• In adoption proceedings, by FPR r.14.14 and PD 14E, which sets out a more extensive table of what may be disclosed, and to whom; and

• In financial remedy proceedings, by FPR r.9.46 and PD 9B.

[21] Accordingly, the position is almost the polar opposite of civil procedure, where under the CPR the hearing is in open court (CPR 39.2(1)) and statements of case (excluding attachments) and court orders are public documents (CPR 5.4C). This presents difficult case management challenges where a civil claim (e.g. under TLATA) is heard alongside a family claim (e.g. financial relief for a child pursuant to Sch. 1 of the Children Act 1989).

[22] In his submission to the President’s Transparency Review, Sir James Munby observes that this restriction on the production of court documents is critical in undermining transparency:

“…Once upon a time, in the days of my legal youth, proceedings in court were entirely oral: there was no judicial pre-reading; there was no written advocacy – no position statements or skeleton arguments; in an oral ‘opening’ the advocate took the judge, often at some length, through the facts, the documents and the law; and evidence in chief was oral. The journalist and the intelligent observer in the public gallery were thus able to follow what the case was about and what was going on. That is still, in essence, the procedure in criminal cases; in civil and family cases it has long since been consigned to history. The judge will have pre-read the bundle, there are written chronologies, position statements and skeleton arguments, and the evidence in chief is set out in written witness statements. The opening, if there is one, is attenuated. Much of the time, the hearing proceeds with such Delphic observations as “in relation to what the applicant says in paragraphs 23, 25 and 49 of her witness statement …” or “I need not elaborate what is set out in my skeleton argument except to note that …” Even the most astute and experienced journalist or observer is hard put to understand or follow what is going on”

Judgments

[23] On 16 January 2014, Sir James Munby handed down Practice Guidance (“Transparency in the Family Courts: Publication of Judgments”) which encouraged more family law judgments to be published:

“…there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name”

[24] Within the guidance, Munby P reviewed the existing practice that the court ‘[9] …normally gives permission for the judgment to be published on condition that the published version protects the anonymity of the children and members of the family’. Compare the situation in the Court of Appeal where a judgement will only be anonymised where ‘it is satisfied that it is necessary for the proper administration of justice’ (see Pink Floyd v EMI [2010] EWCA Civ 1429). Where a party seeks that the judgment should not be anonymised, e.g. where they had been exonerated in care proceedings, or wanted to discuss their experiences in public, an application could be made to the court (cf Re RB (Adult) (No. 4) [2011] EWHC 3017).

[25] The 2014 guidance applies to judgments of circuit judges and above sitting in the Family Court, and distinguishes two classes of cases:

Cases which the just must ordinarily allow to be published: where publication is in the public interest, and cases coming within Schedule 1 or 2 of the guidance (which includes substantial contested fact-finding hearings, making of a care order, placemen order etc); in which case the judgment must be published on the BAILII website;

and

• Cases which the judge may allow publication, where a party or accredited member of the media applies for it; in which case the court may publish the judgment on BAILII, having had…

‘…regard to all the circumstances, the rights arising under any relevant provision of the European Convention on Human Rights, including Articles 6 (right to a fair hearing), 8 (respect for private and family life) and 10 (freedom of expression), and the effect of publication upon any current or potential criminal proceedings.’

[26] As many will know, the problems of effectively maintaining anonymity is increasingly difficult with the internet, where ‘jigsaw’ identification is possible from other reported details, particularly in the context of sensitive public law cases. See, e.g.  Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena.

• The impact of this guidance has been patchy, according to recent analysis (Doughty, Twaite and Magrath, 2017):

“… during that five-year period 82 family Circuit Judges did not publish any judgments at all. When the figures are analysed in detail it can be seen that only 20 judges published more than ten judgments, the rest were all in single figures. 11 judges published more than 20 judgments. There is also regional variation. In Wales only two judges published judgments. 96% of those judgments were published by just one judge. In one major court centre (Birmingham) a total of five judgments were published by three judges. In some courts – Wolverhampton, Telford and Worcester, for example – no judgments were published at all. … There are 42 Designated Family Judges in England and Wales … 18 DFJs in post when I undertook the survey have never published a judgment on Bailii.”

[D]      Excluding the press from attending court

[28] The right of the press to attend most hearings is subject to r.27.11(3), which provides that the court may direct, either of its own motion or pursuant to representations by the parties, any witness, any children’s guardian etc (see r. 27.11(5)) that members of the press shall not attend where it is satisfied that:

(a) this is necessary –

(i) in the interests of any child concerned in, or connected with, the proceedings;

(ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or

(iii) for the orderly conduct of the proceedings; or

(b) justice will otherwise be impeded or prejudiced.

[29] PD 27B § 5 provides the following further guidance on the circumstances in which the press might be excluded:

“[5.1] …media representatives have a right to attend family proceedings throughout save and to the extent that the court exercises its discretion to exclude them from the whole or part of any proceedings on one or more of the grounds set out in paragraph (3) of the rule.

[5.2] When considering the question of exclusion on any of the grounds set out in paragraph (3) of the rule the court should –

specifically identify whether the risk to which such ground is directed arises from the mere fact of media presence at the particular hearing or hearings the subject of the application or whether the risk identified can be adequately addressed by exclusion of media representatives from a part only of such hearing or hearings;

consider whether the reporting or disclosure restrictions which apply by operation of law, or which the court otherwise has power to order will provide sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph (3)(a) of the rule;

consider the safety of the parties in cases in which the court considers there are particular physical or health risks against which reporting restrictions may be inadequate to afford protection;

in the case of any vulnerable adult or child who is unrepresented before the court, consider the extent to which the court should of its own motion take steps to protect the welfare of that adult or child.

• The impact of PD 27B § 5.2 can be seen in Appleton v Gallagher [2015] EWHC 2689 (Fam), where the parties presented the trial judge (HHJ O’Dwyer) with an agreed order, excluding the press. Pursuant to § 5.2, the court is obliged to consider lesser measures such as a reporting restriction order before making an exclusion order. However, PD12I states that only the High Court can make such an order restricting the publication of information about children or incapacitated children. Per Mostyn J at [4]

“…It is my clear opinion that the court of trial has full power to make a reporting restriction order in proceedings which are not “children proceedings” within the terms of FPR25.2(1). The only financial remedy proceedings which qualify as children proceedings are those which relate “wholly or mainly to the maintenance or upbringing of a minor”. Children proceedings fall squarely within PD12I and so any reporting restriction order in such proceedings can only be made by the High Court. Otherwise, so it seems to me, the court of trial is fully vested with the power to control the reporting of the proceedings before it. It would be strange, to say the least, if the court of trial could exercise the power to exclude the press, and to decide whether to anonymise or redact its judgment, but not to control what could be reported about the case as it proceeded.” 

[E]       Restrictions on reporting

[31] he right to attend hearing does not grant the right to report on proceedings or publish details of proceedings. Reporting restrictions fall into two main categories: (1) statutory restrictions and (2) orders made by the High Court, pursuant to its inherent jurisdiction.

Statutory restrictions

[32] S.12(1) of the Administration of Justice Act 1960 provides that:

“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…”

1. [33] The meaning of Section 12 was considered by Munby J in Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam) at [82]

i) Section 12(1)(a) of the Administration of Justice Act 1960 has the effect of prohibiting the publication of:

“information relating to proceedings before any court sitting in private … 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 (iii) otherwise relate wholly or mainly to the … upbringing of a minor.”

ii) Subject only to proof of knowledge that the proceedings in question are of the type referred to in section 12(1)(a), the publication of such information is a contempt of court.

iii) There is a “publication” for this purpose whenever the law of defamation would treat there as being a publication. This means that most forms of dissemination, whether oral or written, will constitute a publication. The only exception is where there is a communication of information by someone to a professional, each acting in furtherance of the protection of children.

iv) Specifically, there is a “publication” for this purpose whether the dissemination of information or documents is to a journalist or to a Member of Parliament, a Minister of the Crown, a Law Officer, the Director of Public Prosecutions, the Crown Prosecution Service, the police (except when exercising child protection functions), the General Medical Council, or any other public body or public official. The Minister of State for Children is not a child protection professional. Disclosure to the Minister of State cannot therefore be justified on the footing of the exception to the general principle.

v) Section 12 does not of itself prohibit the publication of:

a) the fact, if it be the case, that a child is a ward of court and is the subject of wardship proceedings or that a child is the subject of residence or other proceedings under the Children Act 1989 or of proceedings relating wholly or mainly to his maintenance or upbringing;

b) the name, address or photograph of such a child;

c) the name, address or photograph of the parties (or, if the child is a party, the other parties) to such proceedings;

d) the date, time or place of a past or future hearing of such proceedings;

e) the nature of the dispute in such proceedings;

f) anything which has been seen or heard by a person conducting himself lawfully in the public corridor or other public precincts outside the court in which the hearing in private is taking place;

g) the name, address or photograph of the witnesses who have given evidence in such proceedings;

h) the party on whose behalf such a witness has given evidence; and

i) the text or summary of the whole or part of any order made in such proceedings.

vi) Section 12 prohibits the publication of:

a) accounts of what has gone on in front of the judge sitting in private;

b) documents such as affidavits, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings, transcripts or notes of the evidence or submissions, and transcripts or notes of the judgment (this list is not necessarily exhaustive);

c) extracts or quotations from such documents;

d) summaries of such documents.

These prohibitions apply whether or not the information or the document being published has been anonymised.

vii) (By way of example of how the principles in (v) and (vi) inter-relate) in a case such as the present case section 12 does not of itself prohibit the publication of:

a) the issues in the case as being whether the mother suffered from Munchausen’s Syndrome by Proxy and whether she had killed (or attempted to kill) her child(ren) by, for instance, smothering or poisoning;

b) the identity of the various medical experts who have given evidence in relation to those issues; and

c) which of the parties each expert has given evidence for or against.

viii) Irrespective of the ambit of section 12 of the 1960 Act, section 97(2) of the 1989 Act makes it a criminal offence to

“publish any material which is intended, or likely, to identify … any child as being involved in any proceedings before [a family court] in which any power under [the 1989] Act may be exercised by the court with respect to that or any other child”.

ix) This is all subject to any specific injunction or other order that a court of competent jurisdiction may have made in any particular case.

• [34] As to the difference between ‘the nature of the dispute’ (which can be reported) and ‘the substance of the matters’ (which cannot) see, e.g. X v Dempster [1999] 1 FLR 894.
• [35] Following Re B, S.12 was amended with the introduction of S.12(4) which in effect allows for the disapplication of S.12 by rules of court (“…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)”.

• [36] The prohibition established by S.12 remains in force after the conclusion of proceedings (see Clayton v Clayton [2006] EWCA Civ 878).

• [37] S.97(2) of the Children Act 1989 provides that:

“(2) No person shall publish to the public at large or any section of the public any material which is intended, or likely, to identify –

(a) any child as being involved in any proceedings before the High Court or the family court in which any power under this Act or the Adoption and Children Act 2002 may be exercised by the court with respect to that or any other child; or

(b) an address or school as being that of a child involved in such proceedings.”

• [38] Finally, S.39 of the Children and Young Persons Act 1933 provides that:
• In relation to any proceedings in any court… the court may direct that

(a) No newspaper report of the proceedings shall reveal the name, address, or school, or include any particulars calculated to lead to the identification, of any child or young person concerned in the proceedings, either as being the person by or against or in respect of whom proceedings are taken, or being a witness therein;

(b) No picture shall be published in any newspaper as being or including a picture of any child or young person so concerned in the proceedings as aforesaid; except in so far (if at all) as may be permitted by the direction of the court.”

• [39] The relationship between these statutes and the right, post April 2009, of the Press to attend hearings was considered in Re Child X (Residence and Contact: Rights of Media Attendance) [2009] EWHC 1728 by Sir Mark Potter P at [97]

“The net result of all this is that, while the press are entitled to report on the nature of the dispute in the proceedings, and to identify the issues in the case and the identity of the participating witnesses (save those whose published identity would reveal the identity of the child in the case), they are not entitled to set out the content of the evidence or the details of matters investigated by the Court. Thus the position has been created that, whereas the media are now enabled to exercise a role of “watchdog” on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.” (emphasis added)

Reporting Restrictions Order

[40] In a children case, a reporting restriction order can only be made in the High Court. If the need for an order arises, the case should be transferred to the High Court, or the Family Division Liaison Judge should be consulted (PD 12I).

[41] The High Court may lift reporting restrictions, pursuant to s.12(4) of the 1960 Act, and s.97(4) of the 1989 Act, in which case the court must undertake a balancing exercise, taking into account ECHR Articles 6 (right to a fair trial), 8 (respect for private and family life) and 10 (freedom of expression).  See Re J (A Child) [2013] EWHC 2694 (Fam), and Re Al-M [2020] EWHC 122 (Fam) at [25]. The High Court may also use its inherent jurisdiction to extend reporting restrictions: see PD 12I[9]

[42] Where an application is making affecting rights of free expression, s. 12(4) of the Human Rights   Act requires the court to have particular regard to the importance of the Convention right to freedom of expression and, where the material in question is journalistic in nature, to the extent to which that information is already in the public domain or the extent to which it is, or would be, in the public interest for the material to be published.

[43] Any restriction upon the media’s right to report court proceedings, and the public’s right to receive such reports, engages their right to freedom of expression under Article 10. However Art 10(2) recognises that restrictions on the right to freedom of expression may be necessary “…for preventing disclosure of information received in confidence.”

[43] The relationship between articles 8 and 10 was considered by Lord Steyn in Re S (A child) [2004] UKHL 47 at [17]

“…The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions.          

First, neither article has as such precedence over the other.

Secondly, 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. This is how I will approach the present case.”

1. [46] In Appleton v Gallagher (cited above), Mostyn J reflected that, albeit in the context of financial proceedings:

“…the privacy side of the scales starts with heavy weights on it. But there are at least two situations where the balancing exercise will lead to a judgment being fully public. One is where there has been proof of iniquity, as happened in Lykiardopulo. In such a case the delinquent party will lose the benefit of his “pact with the court” (as Stanley Burnton LJ put it). The other is the McCartney situation. That was best explained by Ryder J in Blunkett v Quinn [2004] EWHC 2816 (Fam), [2005]1 FLR 648, at para 22:

“In considering the competing rights [under Articles 6, 8 and 10], I have come to the clear conclusion that having regard to the quantity of material that is in the public domain, some of it even in the most responsible commentaries wholly inaccurate, it is right to give this judgment in public. The ability to correct false impressions and misconceived facts will go further to help secure the Art 6 and Art 8 rights of all involved than would the court’s silence which in this case will only promote further speculation and adverse comment that will damage both the interests of those involved and the family justice system itself.”

In such a case higher interests justify the overreaching of the confidentiality assured by the implied undertaking.”

President’s Guidance

[47] An application to lift reporting restrictions is generally made by a member of the press. Such an application can be made informally (i.e. without the issue of an application) and the recent President’s Guidance on Reporting in the Family Courts, dated 3 October 2019, sets out nine points of guidance, which is set out in full below:

[8]        First, an application to vary or lift reporting restrictions can be made by way of an application to the High Court in Form C66, accompanied by a draft Order and served in accordance with the procedure for a RRO. However, such a procedure (which will usually need to be accompanied by payment of the requisite fee) should not be necessary in many cases. It is a time-consuming and expensive process and may generate additional unnecessary public expense or delay in a straightforward case. In particular:

(a) No formal application is required for the court to consider whether to publish its judgment which it must consider in every case, whether a request is made or not (Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230, para 16).

Where a reporter has attended a hearing pursuant to FPR, r. 27.11, an application to vary the automatic statutory reporting restrictions can be made orally, whether or not notice has been given in advance to the court that is hearing the case. Although such notice is encouraged it can, for example, be given by way of an email to the court office or the judge’s clerk, which has been copied to the parties.

Where a reporter wishes to apply for reporting restrictions to be lifted after the hearing is over, this, too, may be done without a formal application being made, for example by way of an email to the court or the judge’s clerk (copied to the parties). In such cases the court must ensure that all parties are notified of the application and given an opportunity to respond.

Courts should be astute to assist reporters seeking to attend a hearing, or to relax reporting restrictions, and should provide them with relevant contact details of the court office, the judge’s clerk and the parties where requested (unless there is good reason not to do so).

Any documents disclosed to reporters are covered by the provisions of AJA 1960, s 12 and CA 1989, s 97 and remain confidential.

A reporter may be unsure at what stage to indicate an intention to make an application to vary reporting restrictions. At the start of a hearing attended by a reporter the judge should enquire if such an application is to be made and, if there is none at that stage, invite the reporter to alert the court if the situation changes, either at a convenient stage during the hearing or at its conclusion.

[9]  Second, where a reporter has given an indication that they wish to make an application to vary the automatic reporting restrictions, in all cases the court should adjourn for a short period to allow the parties to discuss the terms of a proposed order. In many, if not most, cases agreement will be possible without the need for any formal application at all: see Bodey J’s remarks in Tickle v North Tyneside BC [2015] EWHC 2991 at [7]. In all cases it will be helpful for a written copy of the order that is sought to be prepared by the parties, highlighting any wording that is contentious and upon which a ruling is required.

[10] Third, where agreement cannot be reached, the reporter should be invited to make oral submissions. The court, and any advocate appearing for parties to the proceedings, should provide assistance in terms of the relevant law and procedure to be followed. Any party opposing the application may then make submissions. The reporter should then be given an opportunity to reply.

[11] Fourth, whenever an application to lift reporting restrictions is made the judge should also consider whether a copy of any judgment should be published, applying the Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230 and the guide to anonymisation set out in the Practice Guidance of December 2018.

[12] Fifth, in deciding whether to lift automatic reporting restrictions and/or to publish the judgment, the court may need to consider whether, in order to allow such reporting, additional reporting restrictions need to be imposed under the inherent jurisdiction (for example, anonymising any children and their parents after the conclusion of the proceedings, when CA 1989, s 97(2) no longer applies). In such cases, consideration should be given to transferring the issue for determination by a judge with High Court jurisdiction.

[13] Sixth, consideration should be given to the need to adjourn the application to allow further evidence and/or submissions and to provide other media organisations with an opportunity to make representations.

[14] Seventh, having considered the relevant evidence and submissions the court should conduct the balancing exercise between privacy and transparency by balancing ECHR, Article 8 and Articles 6 and 10 and by having regard to the best interests of any child as a primary consideration.

[15] Eighth, the court should give a reasoned judgment on the application to vary reporting restrictions and on the question of publication of its judgment(s). While this need not be a ‘full detailed and compendious judgment’ (Re C (A Child) [2015] EWCA Civ 500 at para [23]; H v A (No. 2) [2015] EWHC 2630 (Fam) at para [22]), a fuller judgment may be called for where the complexity of the facts and issues warrant it and, in any event, the reasons must be sufficient to meet the requirements of natural justice, namely (Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, per Thorpe LJ at para [11] and see also Re W [2014] EWCA Civ 1303 at para [49]):  ‘… does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings and then his conclusions.’

[16] Finally, in seeking to vary/lift reporting restrictions, the standard approach as to costs in children cases will apply and a reporter, media organisation or their lawyers should not be at risk of a costs order unless he or she has engaged in reprehensible behaviour or has taken an unreasonable stance.

Further Reading

• The following will hopefully be of assistance by way of further reading:

President’s Guidance on Transparency in the Family Courts: Publication of Judgments: 16 January 2014	https://www.judiciary.uk/wp-content/uploads/2014/01/transparency-in-the-family-courts-jan-2014-1.pdf
CAFCASS Practice Note on Reporting Restriction Orders, 18 March 2005 (amended 25 March 2015)	https://www.cafcass.gov.uk/about-cafcass/policies/
Transparency Project Guide for the Media: March 2017	http://www.transparencyproject.org.uk/press/wp-content/uploads/Media-Guide-Mar-17.pdf
Practice Guidance: Anonymisation and Avoidance of the Identification of Children and the Treatment of Explicit Descriptions of the Sexual Abuse of Children in Judgments Intended for the Public Arena: December 2018	https://www.judiciary.uk/wp-content/uploads/2018/12/anonymisation-guidance-1-1.pdf
President’s Guidance on Reporting in the Family Courts: 3 October 2019	https://www.judiciary.uk/announcements/president-of-the-family-division-guidance-as-to-reporting-in-the-family-courts/
Sir James Munby Submission to the President’s Transparency Review, 14 May 2021	https://www.transparencyproject.org.uk/munby-2-0-revised-version-of-sir-james-submissions-to-the-transparency-review/

Alexander Chandler

30 May 2021

 

 

 

I don’t think I’ve ever had a client who wasn’t surprised to hear it might take the judge an hour or two to read out judgment, or that in writing, it would likely be much longer.

As lawyers we become used to the conventions at play when a judge hands down judgment:

• the terrible portent of the early compliment (“…X should be assured that counsel has argued every conceivable point with tenacity”, often met by thumbs up from the back row, as the lamb is led to slaughter);
• the ability of some judges to maintain neutrality and suspense until almost the very last paragraph;
• above all, the futility of trying to take a written note.

My own handwriting is barely legible at the best of times; after an hour’s furious scribbling it looks like I’ve invented my own version of shorthand. It isn’t easy making out grounds of appeal from a selection of dashes, question marks and words which could be able, apple or appal. There is of course the option of typing on a laptop, except for lawyers who type like frantic woodpeckers, hitting the keys so hard it’s almost impossible to hear the judge.

But what is the point of a judgment anyway?

There are of course several sensible answers to this question. A judgment should, as Lord Hoffman once put it, tell the story; it should identify the issues, summarise the law, explain what findings of fact the court has reached and (the difficult bit) set out the evidential basis for those findings.

A judgment should explain the judge’s reasoning in the same way that a candidate sitting a maths exam should set out the workings and not just write ‘42’. And it’s this stage, setting out the reasons, which is most difficult, building a bridge between the facts (as you have set them out) and the outcome (as you are going to order). It is more difficult to write a judgment than it is to write a skeleton arguments . It isn’t a matter of jotting down “it was bluebell time in Kent” and hoping the rest will flow.

It’s a feature of human nature that, unlike in sport, the successful party isn’t particularly interested in knowing why he has won. By contrast, every losing litigant wants to understand why they’ve lost, and to understand if they have received a fair hearing. Sir Robert Megarry put it brilliantly in a 1982 talk:

“…the most important person in court is the litigant who is going to lose. When the end comes, is he going to feel that he has had a fair run and a full hearing? One of the most important duties of any court is to send away a defeated litigant who feels no justifiable sense of injustice in the operation of the judicial process. It is to him that the judgment of the court must primarily be addressed”

But why are judgments so long?

Earlier this year I wrote an article about a 2020 High Court decision involving financial relief for a child which ran to 42,000 words, just shy of the length of The Great Gatsby.

Before his retirement, Mr Justice Charles was famous for his erudite but extremely long judgments: J v J [2009] EWHC 2654 (Fam) ran to 61,000 words, almost exactly the average length of the modern novel (64,000 words according to Amazon). I have recently been preparing a talk on non-matrimonial assets which has involved wading through similar magnum opuses (magnum opi?), which conclude with the court reaching a broad brush outcome (e.g. 60/40 split).

There may be a postgraduate study somewhere which analyses the issue scientifically (‘Inflation in the Length of Civil Judgments From 1870 to date’). I can’t provide any evidence to back this up but I maintain the firm belief (beliefs should be firm where there’s no evidence) that over the span of the last 150 years, judgments have progressively got longer: Victorian judgments (or at least the reports of Victorian judgments) rarely took up more than a dozen pages and, as the 1970s and 1980s, even complex litigation resolved in judgments of at most 20 pages.

Famously, in the House of Lords tax case of Brumby v Milner [1976] 1 WLR 1096, Lord Wilberforce’s opinion ran to a single page. The entire report is about three pages long. Anyone who has considered the nuances of the contrasting opinions of the modern House of Lords in Miller; McFarlane [2006] UKHL 24 and Stack v Dowden [2007] UKHL 17 (to take the leading cases in financial remedies and TLATA) will yearn for such economy and clarity.

This trend towards longer and more discursive judgments may reflect a number of things: a more litigious society, parties who come to court (often unrepresented) with greater expectations of what the judge should deal with, with less deference, or appreciation of the judge’s position? In my field of financial remedies, taking the long view of the last 50 years, there is generally speaking more to fight about in terms of home ownership, investments in shares and other more risky instruments (e.g. crypto-currency). The law post-White has become fundamentally more complicated.

But it also boils down to is the increased reliance on written submissions, together with judges becoming computer literate, whereby judgment writing has developed from oral advocacy and a fountain pen, to Word documents cutting and pasting from Adobe bundles. Also, to adapt the famous epigram of Blaise Pascal, judges today do not have the time to write shorter judgments.

At an appellate level, there have been some moves to reverse this trend, in recognition of the fact that judgments have to be read, instructions have to be taken, and this all costs money. In Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916 Lord Justice Mummery gave the lead judgment of the Court of Appeal, suggested a way that the Court of Appeal could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible.

[39] … It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment. “

[40] One aim is to stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.”

A product of this appellant self-restraint is BS (Congo) v The Secretary of State for the Home Department [2017] EWCA Civ 53 where Lady Justice Raffety succinctly dealt with an immigration appeal.

Plainly, different considerations arise at first instance, when the court does not have the option of applying such a broad brush. I do not suggest that trial judges should try to ape their Victorian ancestors and hold to fewer than ten pages, but that it might be time to check the tendency of judgments to increase in length. Particularly so, bearing in mind the impact of COVID: as the President of the Family Division noted in ‘The Road Ahead’

If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.

Alexander Chandler

26 April 2021

AS v CS [2021] EWFC 34

The rise of the private FDR is something extraordinary to behold. While arbitration has proven a hard sell in family law, comparable to rolling a large boulder up a hill, private FDRs have taken flight, to the extent that in London and the South East, the decision to have a PFDR (or ‘pFDR’) has almost become the default in financial remedy claims involving more than modest assets.

This tendency towards privatisation has rapidly accelerated during lockdown as lawyers have been catapulted from the 19th into the 21^st century, and become aware of the advantages of what Richard Susskind described as ‘ODR’, while court delays and backlogs have only grown.

Encouragement of the PFDR

Successive Presidents of the Family Division have encouraged the development of PFDRs. On 27 July 2018, Sir James Munby observed that:

I hope that the lead and other judges will take the opportunity to develop and encourage the use of “private” FDRs locally. A private FDR is a simple concept. The parties pay for a financial remedy specialist to act as a private FDR judge. That person may be a solicitor, barrister or retired judge. No additional qualification is required. The private FDR takes place at a time convenient to the parties, usually in solicitors’ offices or barristers’ chambers, and a full day is normally set aside to maximise the prospects of settlement. It takes the place of the in-court FDR.

Anecdotal evidence suggests that private FDRs have a very high settlement rate. Of course, each settlement frees up court resources to deal, sooner and more fully, with those interim and final hearings that demand a judicial determination.

On 24 February 2021, Sir Andrew McFarlane announced the successful completion of the Financial Remedies Court pilot, whereby England and Wales is now divided up into 18 FRC zones, and observed that:

I have noted that an increasing number of litigants are choosing to have their FDR conducted privately. I very much welcome this development. Private FDRs appear to have very high rate of success. Their successful use frees up more judicial time for the earlier hearing of those cases that are to be dealt with in court.

For what its worth, my own experience chimes with these views. I have appeared as counsel in several PFDRs and regularly sit as a PFDR judge. It is always an honour to be asked for an indication, and it is a great professional satisfaction where this leads to settlement, particularly in highly contentious cases.

But it only now that a judgment has been handed down (albeit a judgment on the papers, reminiscent of Munby P’s decision about arbitration in Re S [2014] EWHC 7) which considers the jurisdictional basis of the private FDR.

Facts of AS v CS

In AS v CS, Mostyn J dealt with a paper application to convert a First Appointment into an in-court FDR.

The factual background was as follows: (1) on 20 May 2020, the court made a preliminary order which provided for the First Appointment to be arbitrated, and a private FDR to take place on 23 October 2020; (2) the date for this PFDR was put back by agreement to 3 March 2021, as recorded in an order; (3) on 8 February 2021 a single joint expert’s report was received which caused the wife’s solicitors to propose a further adjournment of the PFDR so that questions should be answered; (4) the Husband’s solicitors disagreed and wrote to the court inviting Mostyn J to convert an adjourned First Directions Appointment (already in the diary for 10 June 2021) to be converted to a court FDR.

Mostyn J decided that he did not agree with the approach of either side.

Jurisdictional basis for FDR

At [7] Mostyn J commented that:

there is no specific power in Part 9 of the Family Procedure Rules to order that the parties should attend a private FDR. However, there is unquestionable power to disapply FPR 9.15(4). The court is empowered by FPR 4.1(4)(a) to make any order subject to conditions. Therefore, the order made by me on 20 May 2020 requiring the parties to attend a private FDR should be seen as a condition attaching to the order disapplying the standard in-court procedure. That condition can be expressed as an order. FPR 4.1(3)(o) empowers the court to “take any other step or make any other order for the purpose of managing the case and furthering the overriding objective”.

Support for the PFDR

At [14] Mostyn J repeats the judicial support for private FDRs which

“…are to be strongly encouraged. They seem to have a higher success rate than in-court FDRs. This may be a result of more time being available to the judge both for preparation and in the hearing itself. Private FDRs take a lot of pressure off the court system which is highly beleaguered at the present time. They free up judicial resources to hear cases that must be heard in court.

However, the following warning note was sounded:

[15] …the private FDR system must not be abused. Parties cannot expect to be in a better position if they decide to take the private option than if they remain in the court system [AC comment: one might observe that this is the entire raison d’etre of the private FDR] If they were in the court system they would not be allowed unilaterally to pull out of an FDR even if they felt that there was a deficiency of disclosure likely leading to a barrier to negotiation and an ultimately fruitless outcome. If such a party were in the court system, and felt that way, then it would be incumbent on her to apply to the court for an adjournment of the FDR.

[16] The position cannot be any different if the parties are in the private sector. Therefore, if the wife felt that the SJE report was so deficient that the FDR on 3 March 2021 had to be adjourned for further disclosure to take place, then it was incumbent on her to apply to the court for an adjournment in the absence of agreement. Yet she did not do so. She just assumed that she could pull out. She was clearly wrong about that. Thus, she made no application. Instead, the husband, seemingly accepting the entitlement of the wife to pull out unilaterally, has made what my mind is a completely misconceived application to convert an important directions appointment into an in-court FDR.

[17] The action of the husband and the inaction of the wife are both wrong in my opinion. There is an order in place for a private FDR on 3 March 2021. I have not had a duly constituted application from the wife to adjourn that private FDR. Therefore, I confirm the order that it will take place.

…

Commitment to PFDR date

[20] For the future, where an agreement is reached that a private FDR will be held then an order should be made which (a) disapplies the in-court FDR process, (b) requires the parties to attend a private FDR on a specified date, and (c) provides that the date may only be altered by an order of the court (which may, of course, be made by consent).

Practice points

1. Firstly, there is no question that a private FDR is an extremely useful – form of dispute resolution. While the evidence remains anecdotal, the success rates (in terms of the parties reaching settlement following a PFDR indication) seem to be consistently high;
2. Secondly, in AS v CS the court for the first time considered the jurisdictional foundations of ordering a PFDR, and also the problem that can arise when one party gets cold feet, for good reason or bad, and seeks to pull out. The decision of Mostyn J, which may surprise some, is that this should not be an option, any more than it is an option for a party to cancel a court-FDR;
3. Thirdly, what this will likely mean in practice is that when the parties have agreed to a private FDR date (and assuming that this is recorded in an order), the court’s permission (or the parties’ consent) will be required before such a date is changed.
4. Fourthly, it is plainly necessary that some common sense has to be applied here. Where one party legitimately requires further information, there might be little point in seeking to compel the listing of a PFDR before this information is available. After all when it comes to negotiation you can lead a horse to water etc.

Alexander Chandler

19 April 2021

Compensation under TLATA, post Rowland v Blades [2021] EWHC 426(Ch)

Like all good things in life, law can sometimes be just a little boring. Even the more interesting areas of law have their dull sides. Criminal lawyers have shoplifters; matrimonial lawyers have chattels disputes, and commercial lawyers have delightful second homes in Provence.

The most boring aspect of TLATA, which I appreciate is quite a statement in itself, relates to something which is so uninspiring lawyers can’t agree on what to call it: ‘equitable accounting’, ‘occupation rent’, or ‘compensation’. For the purposes of this opinion, I’m going with the word compensation, to cover the court’s power to order payments separate to a declaration of beneficial ownership.

These claims have all the hallmarks of an evening spent in the company of an especially stultifying bookkeeper. They involve a lot of detail. They often don’t involve very much money. The law is opaque, and they have a tendency of going on and on. In some cases, where the parties’ beneficial shares are fixed at the time of purchase, the only thing left to argue about is compensation, which has the effect of thickening the (witch’s) brew. That isn’t to say claims for compensation are not important or valid. But they often involve a huge amount of detail in the pursuit of a relatively minor issue.

In the circumstances, this blog is going to be short: If you can’t make it interesting, at least make it short, as Dorothy Parker might have said. For a recent case which considered the law in relation to compensation, which isn’t in any way boring, see Rowland v Blades [2021] EWHC 426 (Ch)

Here are six short points about compensation:

1. This is a discretionary remedy

A co-owner who has been unreasonably excluded from property can seek compensation (TLATA s.14(2), s.13(6)) but there is no right to any award. The court exercises a discretion which will be fact sensitive: see Wilcox v Tait [2006] EWCA Civ 1867 per Jonathan Parker LJ at [64]:

“…it is in any event risky, in my judgment, to attempt to formulate general principles to be applied in carrying out an equitable accounting exercise in any given case, if for no other reason than that, as the judge put it in the instant case, equitable accounting, is ‘fact sensitive’. What can at least be said is that an exercise of equitable accounting is not to be confused with an enquiry as to the extent of the parties’ respective beneficial interests in the property in question. Questions of equitable accounting only arise once the extent of the parties’ beneficial interests has been determined, since the requirement to account (where it exists) is a reflection of and derives from those beneficial interests.”

2. As between cohabitants, the law is contained in the statute (TLATA)

Any issue of compensation that might arise between cohabitees should be resolved by reference to ss.12 to 15 of TLATA, which include the right of a trustee of land to occupy the land if that was the the trusts’ purpose (s.12(1)), the power of a trustee to exclude that entitlement, which must be exercised reasonably (s.13(1), (2)), and the power of a trustee to impose obligations to include compensation to a person whose right has been excluded (s.13(6)). Finally there is the checklist of factors at s.15 which must be taken into account where the court exercises a power under s.14. In Stack v Dowden [2007] UKHL 17 at [94] Baroness Hale explained that this supplanted the earlier case law on equitable accounting:

“These statutory powers replaced the old doctrines of equitable accounting under which a beneficiary who remained in occupation might be required to pay an occupation rent to a beneficiary who was excluded from the property. The criteria laid down in the statute should be applied, rather than in the cases decided under the old law, although the results may often be the same”

In Murphy v Gooch [2007] EWCA Civ 603, Lightman J confirmed at [14] that:

“The wider ambit of relevant considerations means that the task of the court must now be, not merely to do justice between the parties, but to do justice between the parties with due regard to the relevant statutory considerations”.

3. In cases of bankruptcy cases, apply earlier case law

The provisions of ss. 12-15 apply between trustees of land. They do not apply in a claim brought, eg, by a trustee in bankruptcy, where the court may apply earlier corpus of case law in relation to the court’s equitable jurisdiction: re Basham (A Bankrupt) [2008] EWHC 1505 (Ch). In Rowland v Blades the court concluded that Basham was ‘very much directed to bankruptcy cases’

4. Compensation can be ordered without proof of ouster

There is no need for actual ouster (i.e. physical exclusion). Compensation can be awarded hwere there was constructive exclusion from a property: see Murphy v Gooch [2007] EWCA Civ 603 at [18], which reflects the position under the earlier authorities on equitable accounting

‘…it was open to the judge and it is open to this court to order credit for an occupation rent if it was or is just to do so, whether or not there was proof of any ouster.’

5. The normal inference is compensation post-dates separation

Unless there is evidence that the parties intended to account to each other for, e.g. costs of improvements during the relationship, the court’s normal inference (which is of course rebuttable) is that issues of compensation arise after cohabitation comes to an end: see Wilcox v Tait

“[65] That said, I agree with His Honour Judge Behrens in Clarke v Harlowe that in the ordinary cohabitation case it is open to the court to infer from the fact of cohabitation that during the period of cohabitation it was the common intention of the parties that neither should thereafter have to account to the other in respect of expenditure incurred by the other on the property during that period for their joint benefit. Whether the court draws that inference in the given case will, of course, depend on the facts of that case.” Jonathan Parker LJ, Wilcox v Tait, at [65], [66]

6. Where the exercise is disproportionate, the court may refuse to deal with compensation (eg. See Laskar v Laskar [2008] EWCA Civ 347)

Rowland v Blades [2021]

As a worked example, in Rowland v Blades, the court accepted that there should be an occupation rent holiday home over nine years, presented with figures £83 per day or £650 per day, £288,800 or £36,000: concluded around £60,000. The conclusion of Deputy Master Hansen is at [156]:

I remind myself that having found that Ms Blades should pay an occupation rent to Dr Rowland, my task in ascertaining the amount of such rent is to do justice between the parties with due regard to the relevant statutory considerations and having regard to my findings of fact above. It seems to me that the fairest way to arrive at the appropriate figure in the particular circumstances of this case, dealing as we are with a holiday home (albeit a very grand one) and an exclusion at weekends (including a Monday or a Friday) only, and having regard to the principles on which mesne profits are calculated by way of analogy, is to ascertain a daily rate for such weekend usage that reflects the open market value of such usage.

Alexander Chandler

18 March 2021

Ten Years On From Jones v Kernott

It may come as a surprise to discover that it is now nearly ten years since the Supreme Court handed down its decision in Jones v Kernott [2011] UKSC 53, a case which in many ways epitomises this area of law. It related to a modest bungalow in Thundersley, Essex and involved the sort of questions only Chancery lawyers could devise: ‘Can a constructive trust be ambulatory?’, ‘Should the court impute to the parties a common intention which was neither expressed nor could be implied?’

And, like all good TLATA cases, no one in Jones could agree on the law. The Supreme Court reversed the Court of Appeal ([2010] EWCA Civ 578), which by a 2:1 majority allowed an appeal from the deputy High Court judge, Nicholas Strauss QC ([2009] EWHC 1714(Ch), who had dismissed an appeal from the trial judge, HHJ Dedman in Southend on Sea.

The conclusion of this monumental litigation was that the Supreme Court restored the judgment of first instance (i.e. that the parties held the property in 90% / 10% shares), but were unable otherwise to reach agreement on the legal principles. Four Justices gave their own judgments and the question of whether a common intention can be imputed was narrowly allowed (3:2).

In reading this, family lawyers may already be breaking out in hives, or recalling the elegant description of this area of law as a ‘witch’s brew’, by Carnwath LJ (as he then was) in Court of Appeal in Stack v Dowden [2005] EWCA Civ 857:

But what has happened in the intervening decade? What cases should occasional travellers in this area of law, be aware of since the Supreme Court decisions in Stack v Dowden [2007] UKHL 17and Jones v Kernott? The following is offered as a swift canter through the last decade, along the lines of ‘essential TLATA for the family lawyer’

Express trusts

Pankhania v Chandegra [2012] EWCA Civ 1438, is an important CA decision which confirms that the law in relation to express trusts has not changed since Goodman v Gallant [1986] Fam 106, i.e. that an express declaration in signed writing, e.g. contained on a Transfer Form, conclusively declared co-owner’s beneficial shares, save in cases of fraud or mistake etc. There is no room to run a constructive trust analysis. Per Patten LJ:

“[28] … reliance on Stack v. Dowden and Jones v. Kernott for inferring or imputing a different trust in this and other similar cases which have recently been before this court is misplaced where there is an express declaration of trust of the beneficial title and no valid legal grounds for going behind it.”

Constructive trust

Curran v Collins [2015] EWCA Civ 404: the CA put to bed a similar misreading of Stack v Dowden, to the effect that detrimental reliance remained an essential part of any constructive trust analysis (see Lewison LJ at [78])

In Graham-York v York [2015] EWCA Civ 72 the CA provided guidance on the quantification of share in a sole ownership case, i.e. (1) there was no presumed starting point of equality; (2) the judicial evaluation of a fair share involved a discretion and there was no right answer; (3) the court was not concerned with some form of ‘redistributive justice’; (4) a ‘fair share’ is decided only by considering the parties’ dealings in relation to the property

Barnes v Phillips [2015] EWCA Civ 1056: The court may only consider imputation (where it arises) at the stage of quantifying interests; not the primary stage of establishing whether a party has an interest or whether there has been a change of intention

Resulting Trust

Marr v Collie [2017] UKPC 17, an appeal from Bahamas to the Privy Council, confirmed that where co-owners within the ‘domestic consumer context’ buy a property as an investment, ‘it did not follow inexorably’ that the court would apply a resulting trust analysis (cf. Laskar v Laskar [2008] EWCA Civ 347)

Court Powers

Begum v Hafiz [2015] EWCA Civ 801 confirms that court’s powers under s.14 of TLATA does not include an order to transfer property (a common misconception with family lawyers), but does extend to a limited discretion to give one beneficiary the first opportunity to purchase the other’s share at market value. In the event that this was not paid within a set period of time, the property would go to the open market. (Also see Kingsley v Kingsley [2020] EWCA Civ 297, which confirms that ‘Begum orders’ are not governed by any valuation threshold

Engaged couples

Dibble v Pfluger [2010] EWCA Civ 1005, which is not an unpublished story by Dickens, casts (not very much) light into a long ignored area of law, i.e. the court’s powers under the Law Reform (Miscellaneous Provisions) Act 1970, which extended s 37 of the Matrimonial Proceedings and Property Act 1970 to cohabitees, whereby the court can take into account any contribution made in money or money’s worth in acquiring a beneficial interest

Procedure

‘Ch FDR’: The Chancery Guide now makes reference to the availability of a ‘Chancery Financial Dispute Resolution’ hearing: see Chancery Guide (2019) at § 18.16

Civil Procedure generally: The shockwaves from the Jackson Reforms and Mitchell v News Group Newspapers [2013] EWCA Civ 1537 have subsided, and the leading case is now Denton, Decadent and Utilise [2014] EWCA Civ 906 (another brilliantly named case) which provides for a three-stage test (per Dyson MR and Vos LJ)

“[24] … A judge should address an application for relief from sanctions in three stages.  The first stage is to identify and assess the seriousness and significance of the “failure to comply with any rule, practice direction or court order” which engages rule 3.9(1).  If the breach is neither serious nor significant, the court is unlikely to need to spend much time on the second and third stages.  The second stage is to consider why the default occurred.  The third stage is to evaluate “all the circumstances of the case, so as to enable [the court] to deal justly with the application including [factors (a) and (b)]”.

Part 36 offers: be aware of the pro forma template at Form N242

Arbitration: a TLATA claim can be arbitrated under the IFLA scheme, with the presumption (subject to the parties’ agreement) that there will be order as to costs. Following the CA decision in Haley v Haley [2020] EWCA Civ 1369, the court may decline to turn an arbitral award into an order where the decision was wrong, whereas previously it was thought that the routes of challenge were narrow and limited to those under the Arbitration Act (see BC v BG [2019] EWFC 7). Query if this broader route of challenge also applies to TLATA claims arbitrated under IFLA where the court has no supervisory jurisdiction in terms of approving an order.

Magiera v Magiera [2016] EWCA Civ 1292, considered the jurisdiction of English courts, in the context of Article 22 of Brussels I: was the TLATA claim made in personem or in rem, and did the EU State have exclusive jurisdiction?

Watch this space

Bear in mind the imminent change to Civil Procedure Rules with respect to witness statements at the Business and Property Courts. From 6 April 2021, Practice Direction 57AC (Witness Evidence at Trial) in claims before the Business and Property Courts – still in draft – which seek to further control the content of statements, with a certificate of compliance signed by the party’s lawyer.

Finally, at some point it will hopefully be possible to deal with a TLATA claim in the family court. This prospect was recommended as long ago as 2016 by Briggs LJ in his final report on the Structure of Civil Courts. However until primary legislation is brought forward, this remains some way off.

Alexander Chandler

8 March 2021

This article seeks to answer what should be a simple but important question: Which costs rules apply at any given financial remedy hearing?

Non-family lawyers may be surprised how often this issue arises in practice, and that the answer isn’t always straightforward.

Does the court start with the presumption of each party paying their own costs, or does it exercise a wider discretion? Having determined the application, can the court see any ‘without prejudice as to costs’ (i.e. Calderbank) letters, or are these inadmissible?

The two costs regimes

By way of overview, there are two main costs regimes that apply in financial remedy litigation:

(1) the ‘General Rule‘, i.e. presumption of no order as to costs. This is set out at FPR 28.3, and covers ‘financial remedy proceedings’ as defined at FPR 28.4(b). Under the general rule, each party pays their own costs, save where, applying the checklist of factors at FPR 28.3(7), a party’s conduct warrants that he should pay the other side’s costs. Only open offers are admissible on costs, save at the FDR: FPR 28.3(8);

(2) the ‘Clean Sheet‘, i.e. application of a broader discretion, which arises in situations not covered by either (a) the ‘General Rule’ at FPR 28.3 (i.e. presumption of no order) or (b) the ‘General Rule’ in civil litigation at CPR 44.2(2) (i.e. unsuccessful party pays the successful party’s costs). In these cases, which fall between two stools, the court exercises what might be better described as a ‘soft costs-following the event’ approach (i.e. one party’s success is the first thing written down on the ‘clean sheet’). Calderbank offers are admissible.

So, which costs regime applies when ?

(1) First Appointment: General Rule

– The normal order at a First Appointment will be costs in the application.
– Where a party’s default (eg late service of Form E) has caused the First Appointment to be ineffective/ adjourned, costs may be ordered. In addition to the factors at FPR 28.3(7), bear in mind FPR 9.15(6) which requires the court to have “…particular regard to the extent to which each party has complied with the requirement to send documents with the financial statement and the explanation given…”

(2) Discrete hearing to consider Part 25 application: General Rule (probably)

Where an application to instruct an expert is heard as part of a First Appointment, the General Rule would apply;
– Query which costs rules would apply if the court was only dealing with a discrete Part 25 application?
– No authority directly on point, but (I suggest) probably still general rule.

(3) Maintenance Pending Suit: CLEAN SHEET

– FPR 28.3(4)(b)(i) expressly disapplies MPS/ LSPO applications from the ‘general rule’, whereby the ‘clean sheet’ applies;
– Accordingly, Calderbank offers are admissible (hence, invariably do send a Calderbank offer, especially when on the defending side).
– In most LSPO applications, the costs of the application are normally included in the sum sought for legal services, whereby a separate costs order might amount to double-counting.

(4) Interim relief, e.g. freezing order, interim injunctions, declarations etc.: CLEAN SHEET

– FPR 28.3(4)(b)(i) disapplies “any other form of interim order for the purposes of rule 9.7(1)(a), (b), (c) and (e)” from the ‘general rule’ FPR 9.7(1)(a), (b) and (c) cover different forms of interim maintenance application.
– FPR 9.7(1)(e) refers to ‘any other form of interim order’, i.e. as set out at FPR 20, notably at 20.2(f) a freezing injunction. The normal order at a without notice freezing application hearing is costs reserved (see template attached to UL v BK [2013] EWHC 1735 (Fam)

(5) Section 37 applications: CLEAN SHEET

– Logically, the same rules apply to a Section 37 application (ie an application to restrain or set aside a reviewable transaction) as would apply to a freezing order; hence, clean sheet. See Solomon v Solomon [2013] EWCA Civ 1095, per Ryder LJ at [19]-[25]

(6) FDR appointments: General Rule

– An ineffective FDR might conclude with a costs order, e.g. where there has been a failure to disclose or directions have not been complied with, e.g. applying FPR 28.3(7)(a);
– The editors of Family Court Practice suggest that it is possible that a costs order could be made after an effective FDR (no authority given) – presumably where one party fails to use his best endeavours to reach agreement (9.17(6)). In practice, this possibility can be discounted in all but the most exceptional cases. Any application for costs would also involve a range of difficult questions: How should a court assess ‘best endeavours’ to settle as relevant conduct? Would this arise where one party plays hard ball, refusing to budge from an initial proposal, or negotiating downwards? Or might it cover a failure to respond to an indication?

(7) Final hearing: General Rule

– With the recent revision to PD 28A § 4.4 in relation to open offers, bear in mind the need to send open offers after FDR in addition to the open offers before the final hearing. The importance of these provisions have been underlined by Mostyn J in OG v AG [2020] EWFC 52:

[30] The revised para 4.4 of FPR PD28A is extremely important. It requires the parties to negotiate openly in a reasonable way. To take advantage of the husband’s delinquency to justify such an unequal division is not a reasonable way of conducting litigation. And so, the wife will herself suffer a penalty in costs for adopting such an unreasonable approach.

[31] It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.

(8) Variation Applications: General Rule**

General rules applies: FPR 28.3(4)(b) includes ‘financial orders’ which is defined to include a ‘variation order’: FPR 2.3

**However, PD 28A § 4.4 directs that a consideration of the overriding objective “…may be of particular significance” in a variation case. (Although, query what precisely that is supposed to mean in practice)

(9) Set Aside applications: CLEAN SHEET

– FPR 28.3(9) expressly disapplies the general rule in set aside applications (i.e. under FPR 9.9A) Also see Judge v Judge [2008] EWCA Civ 1458, per Wilson LJ:

[51] .. her application for an order setting those orders aside was not itself an application for ancillary relief, as defined in r 1.2(1) of the Rules of 1991. So, although the proceedings before the judge were in connection with ancillary relief, they were not for ancillary relief… [53] there was no ‘general rule’ in either direction for the judge to apply to his decision. He had before him a clean sheet; but by reference to the facts of the case, and in particular, the wife’s responsibility for the generation of the costs of a failed application, he remained perfectly entitled to record upon it, as he did, that he would start from the position that the husband was entitled to his costs.  

(10) Intervenor claims: CLEAN SHEET

– Bearing in mind the nature of an intervenor claim (typically to assert an interest in property owned by a spouse) it might be argued that the family court’s approach should not differ materially from the county court’s (which might also have jurisdiction to entertain the issue by way of a TLATA claim), ie the starting point of costs following the event)
– Baker v Rowe [2009] EWCA Civ 1162, per Ward LJ at [35]: “…The orders might well have been made in ancillary relief proceedings but they were not orders for nor even in connection with ancillary relief. The rule must be construed purposively as my Lord explained in Judge v Judge … and in his judgment above. Proceedings between interveners do not come within the ambit of the rule. The judge making the costs order has, therefore, a wide discretion”.

Hence, in A v A (No. 2) (Ancillary Relief: Costs) [2007] EWHC 1810 (Fam) W was responsible for a proportion of the trustee’s costs where she had failed to establish her sham case.

(11) Appeals: CLEAN SHEET

– “…an appeal is in my judgment in connection with and not in financial remedy proceedings and therefore is not subject to FPR 28.3(5)… it starts with a clean sheet” H v W (No. 2) [2015] 2 FLR 161 at [21]

Calderbank offers are admissible in an appeal, relating to the costs of the appeal: WD v HD [2017] 1 FLR 160 at [69]

(12) Schedule 1 applications: CLEAN SHEET

This is an important point to note. It is often overlooked that the presumptive order in Schedule 1 is not ‘no order as to costs’ and that Calderbank offers can be sent.

See KS v ND (Schedule 1: Appeal: Costs) [2013] EWHC 464 (Fam) per Mostyn J

[17] Schedule 1 Children Act 1989 proceedings have, since 6 April 2011, been excepted – along with certain other proceedings (of which the most prominent is maintenance pending suit) – from the “general rule of no order as to costs principle” introduced for almost all family financial proceedings with effect from 3 April 2006 by the insertion of rule 2.71 into the then Family Proceedings Rules 1991 (and which now is found in FPR 2010 rule 28.3).

[18] These, and the other specified proceedings, have thus been restored to the position in which all family financial proceedings were before 3 April 2006. Then, the position was that the general rule in RSC Ord 62 rule 3(5) of costs following the event was formally disapplied, but by virtue of the decision of the Court of Appeal in Gojkovic v Gojkovic (No. 2) [1991] 2 FLR 233, [1992] 1 All ER 267 an equivalent, but perhaps less unbending, principle should prima facie apply, at least to ancillary relief proceedings between husband and wife.

For a recent case in which costs were ordered (against the Applicant for her litigation misconduct in pursuing an entirely ‘misconceived’ application): see PK v BC (Financial Remedies: Schedule 1)  [2012] 2 FLR 1426.

Alexander Chandler, 10 February 2021

Mostyn J in CB v EB: Practice Directions etc.

You know you’ve lost a case when the judgment begins with a compliment.

When a judge describes your argument as ‘elegant’, you’re in trouble. In CB v EB [2020] EWFC 72, an interesting recent decision of Mostyn J, the judgment starts by describing the argument of H’s leading counsel as “bold but eloquent”. To the lay client this seems like a judicial thumbs-up; to a lawyer, it’s time to bookmark the costs rules.

In CB v EB the husband sought to set aside two consent orders made in 2010. He put forward two main arguments: the first (that the orders remained executory/ Thwaite v Thwaite [1982] Fam 1) was abandoned before the hearing; the second involved the argument (the ‘bold’ one) that the family court exercised an almost unfettered power to set aside any order.  

This argument was based on Section 31F(6) of the Matrimonial and Family Proceedings Act 1984, which was amended by the Crime and Courts Act 2013, as part of the legislation that paved the way for the family court which came into existence on 22 April 2014.

H argued that the language of S.31F(6) was framed more widely than the old Order 37 r.1 of the County Court Rules (remember them, older lawyers?), and amounted to break from the past, whereby previous case law did not apply. In support of the contention that the family court’s powers were new, wider and more flexible, H prayed in aid the following passage from FPR PD9A para 13.5:

“An application to set aside a financial remedy order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.” 

Mr Justice Mostyn disagreed:  

[54] I do not agree with Mr Feehan QC. Unsurprisingly, I agree with the editors (of whom I am one) of Financial Remedies Practice 2020/21 (Class Publishing 2020) who wrote at para 4.32:

“The terms of rule 4.1(6) or rule 9.9A or section 17(2) of the Senior Courts Act 1981 or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 do no more than to enable an application to set aside to be made under a ground of challenge recognised by the law as capable of being made at first instance rather than by way of appeal”

The status of a Practice Direction

An interesting part of the judgment is the court’s reflection of the status of a Practice Direction. Mostyn J asked rhetorically:

[59] What is the status of practice directions? In Godwin v Swindon Borough Council [2002] 1 WLR 997, decided before the changes made by the 2005 Act, May LJ stated at [11]:

“Practice directions are subordinate to the rules: see paragraph 6 of Schedule 1 to the 1997 Act. They are, in my view, at best a weak aid to the interpretation of the rules themselves.”

Similarly, in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, again decided before the changes made by the 2005 Act took effect, Brooke LJ stated at [48]:

“Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

[60] In my judgment the changes made in 2005 do not alter the status of practice directions. U v Liverpool City Council was cited with approval by Lord Wilson in Re NY (A Child) [2019] UKSC 49, [2020] AC 665 at [38]. He found that the practice direction in question in that case (FPR PD 12D para 1.1) went too far and was therefore wrong. In CS v ACS Sir James Munby P referred to section 81 of the 2003 Act but concluded at [36] that where there is a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, the latter is required to yield to the former. He found that the practice direction in question in that case (FPR PD 30A para 14.1) was wrong in law and had been made ultra vires the powers of its maker.

[61] So here. The language of para 13.5 of FPR PD 9A must yield to the limitations set by the law to the scope of the set aside grounds.  

In summary, a Practice Direction has no legislative force but provides guidance as to practice. On occasion the Family Procedure Rule Committee oversteps the mark and a higher court calls no ball, leading to the revision of the PD: as happened notably in Wyatt v Vince [2015] UKSC 14 in relation to PD 4A § 2.4 (striking out), Sharland v Sharland [2015] UKSC 60 on PD 30A § 14.1 (appeals) and which may now happen in CB v EB in relation to PD 9A § 13.5 and setting aside.

The Judicial Pyramid

Mostyn J’s review of the status of a Practice Direction calls to mind earlier guidance which reminded practitioners of things we all once knew but which may over the years have faded in the fog of battle.

The late Mrs Justice Baron heard Radmacher at first instance, except at that stage it was anonymised as NG v KR [2008] EWHC 1532. Some might say that Baron J’s decision in Radmacher (awarding £5.56m to H from W’s fortune of £100m) was a far fairer decision than that which was ultimately imposed by the Supreme Court. Others might say that the outcome in Radmacher would never happened in a million years if the genders of the parties had been reversed; I couldn’t possibly comment. In any event that is a matter for a different article. In NG v KR, Baron J gave the following pithy summary of the law, including reference to the judicial pyramid, at para 82:

“At the outset I remind myself that I decide this case in accordance with English law and tradition. In terms of financial relief upon divorce I am bound by the terms of the Matrimonial Causes Act 1973 (the Act) as it has been interpreted in the House of Lords and the Court of Appeal. Decisions of my fellow first instance judges may also be persuasive and/or illuminating. Under statute my first consideration is the two children of the family whilst they are minors. I must also take account of all the circumstances of the case and the factors set out in s 25 of the Act to produce a result which is fair, just and does not discriminate against either party on the grounds of gender or for any other reason. Although fairness has been stated to be in the ‘eye of the beholder’ and I am conscious that I must apply the law carefully and clearly.”  (My italics)

The difference between the decision (ratio) and guidance (obiter)

Finally, there is the difference between ratio and obiter which we all remember from law school but which in practice is often difficult to separate out. Here, we have the magisterial judgment of Moore-Bick LJ sitting in the Court of Appeal in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793:

86.  I accept, of course, that the decision in Payne v Payne [2001] Fam 473 is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles. I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice. None the less, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance. In my view Wilson LJ was, with respect, quite right to warn against endorsing a parody of the decision. As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted. Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them. It also plays a valuable role in promoting consistency in decision-making. However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child. As Hedley J said in In re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 , the welfare of the child overbears all other considerations, however powerful and reasonable they may be. I do not think that the court in Payne v Payne intended to suggest otherwise. 

Conclusion

In summary, when citing the law, bear in mind the natural order of things, and separate out the decision from the guidance, bear in mind the judicial pyramid and keep practice directions in their proper place.

Alexander Chandler

29 December 2020

Since the watershed of White v White, and the establishment of London as the ‘divorce capital of the world,’ (see Lord Collins in Agbaje at [37])  the leading cases in financial remedies have invariably involved substantial assets, with all of the trappings that come with High Net Individual status: trusts, foreign property, liquidity of shareholdings and tax efficiency etc.

Those who might think this observation is trite (i.e. financial cases that reach the Supreme Court necessarily do involve substantial wealth) might compare and contrast the leading cases in TOLATA, which concern a terraced house in Willesden (Stack v Dowden) and a bungalow just outside Canvey Island (Jones v Kernott). Not that there is anything wrong with living in Willesden or Thundersley, but those disputes inhabit a very different world from the Supreme Court decisions in Miller; McFarlane Prest v Petrodel Ltd and Wyatt v Vince.

The proverbial alien flicking through the financial remedy case law might be surprised to discover that Britain is not a nation of multi-millionaires engaged in sophisticated tax avoidance, and that the vast majority of financial remedy claims that reach the family court involve modest assets and considerable debt. All the more so as we hurtle towards the economic impact of COVID 19 and lockdown.

No law for the rich

As we all know, the legal principles outlined in cases such as White and Miller; McFarlane apply as much to modest asset cases as they do to big money disputes. In A v L Departure from Equality: Needs), Mr Justice Moor confirmed at [49] that:

“The law in relation to financial remedy cases, as set out in the MCA is, of course, exactly the same for everyone, whether rich or poor. Following White v White… , the obligation in all cases is to be fair but, insofar as there is to be a departure from equality, there has to be good reason for so doing”

But the focus in many modest asset cases is not upon assets, and the increasingly ingenious arguments of counsel as to why they should not be divided equally, but debt. And here there are a number of problems.

The problem with debt

Firstly, the court has no power to re-distribute debt between parties. Any ‘property’ in a debt is held by the creditor, who generally speaking will not be a party to the proceedings. The court cannot make a property adjustment order to adjust indebtedness, just as it cannot transfer the burden of a mortgage. In the time-honoured case of Burton v Burton and Another [1986] 2 FLR 419, Butler Sloss J remarked at p.422 that:

“There is no jurisdiction in the court to order one party to pay out of the proceeds of sale of the matrimonial home the debts of that party or of the other party to the marriage”,

Accordingly, the Family Orders Project’s Standard Precedents include provisions for the discharge of liabilities as undertakings (see § 35, 37), but not as orders. One helpful (but still controversial) innovation of the Standard Precedents is the inclusion of an order to indemnify, as opposed to an undertaking to indemnify (as to the legal basis, see Mostyn J in CH v WH [2017] EWHC 2379).

Secondly, there is the widespread but nebulous concept of the ‘matrimonial debt‘. It is remarkable how often this term is bandied about without any clear explanation as to what it actually means. Does it refer to how the debts arose (i.e. were they incurred for the benefit of the family, and if so what does that even mean in practice?) or when they arose. If the latter, does some sort of presumption arise that loans and credit card debts incurred during a marriage are presumptively ‘matrimonial’ unless the contrary is proven?

There is almost no judicial consideration as to what might be encompassed by this definition (‘matrimonial debt’, as opposed, presumably, to ‘non matrimonial debt’), or whether the court’s approach should somehow be connected to the law on matrimonial/ non-matrimonial assets.

There have in the past twenty years (i.e. post-White) been a grand total of three cases in which a reported ancillary relief/ financial remedies judgment has included the term ‘matrimonial debt’. The first is Whig v Whig [2007] EWHC 1856 (Fam), in which Munby J (as he then was) heard ancillary relief and bankruptcy proceedings together. At [81] there is the following passing reference:

I am inclined to agree with Mr Brett that these were indeed matrimonial debts, insofar as they went, in significant part at least, to support the family’s standard of living. (In saying that I do not overlook the distinct possibility that some of the money was being used by the husband alone for his personal pleasures.)

The other two are in the Court of Appeal decisions in Tattershall [2013] EWCA Civ 774 and Matthews [2013] EWCA Civ 1874 both use the term ‘matrimonial debt’ without any consideration of what this term encompasses or excludes.

Thirdly, there is the problem of evidential proof. Unlike bank statements, there is no obligation to exhibit 12 months’ credit card statements to Form E. Where one party asserts that the other’s indebtedness arose because of his own selfish spending on himself, a questionnaire may be raised which seeks several years of credit card statements. This will often arise in a case where the assets do not justify the costs of what can amount to a spending audit, both in terms of poring over the disclosure, but also the prospect of a longer final hearing where evidence in relation to those debts can be challenged. In many cases, the game (in terms of the sums at issue) will not be worth the candle (in terms of the cost of embarking on this exercise).

Fourthly, there is the problem of lack of clarity over (for want of a better expression) burden and standard of proof apply when it comes to ‘matrimonial debts’. Where Mr Smith’s Form E shows that he has £30k of credit card debt, does he have to show that this was the result of expensive family holidays and costs of living, or does Mrs Smith have to show that the husband has been pursuing expensive extra-familial recreational activities? Should the court approach this issue on a straightforward balance of probabilities, or should the court adopt the higher threshold of the add-back?

In Cowan v Cowan [2001] EWCA Civ 679, Thorpe LJ famously stated the following principle [70]

“The assessment of assets must be at the date of trial or appeal. The language of the statute requires that. Exceptions to that rule are rare and probably confined to cases where one party has deliberately or recklessly wasted assets in anticipation of trial.”

The threshold to establish an ‘add back’ is notoriously high: wanton and reckless expenditure. In Vaughan v Vaughan [2007] EWCA Civ 1085, per Wilson LJ (as he then was) summarised the law at [14]

“…Norris v Norris [2002] EWHC 2996 (Fam)… is the last in a line of authority which stretches back to the decision of this court in Martin v Martin [1976] Fam 335 that, in the words of Cairns LJ, at 342H: ‘a spouse cannot be allowed to fritter away the assets by extravagant living or reckless speculation and then to claim as great a share of what was left as he would have been entitled to if he had behaved reasonably.’ The only obvious caveats are that a notional reattribution has to be conducted very cautiously, by reference only to clear evidence of dissipation (in which there is a wanton element)”

Some tentative conclusions

There are no easy answers to this problem. But I hazard the following:

1. Debts present a problem in financial remedy litigation. The court has no power to order a distribution. The best that can be done (absent agreement and undertaking) is to order an indemnity;
2. The best (i.e. only) definition of a matrimonial debt is that of Munby J in Whig, that they have been incurred in supporting the family’s standard of living. However, that is merely a passing reference which does not consider in detail what might be considered as a ‘matrimonial debt’ (or indeed its obverse, a ‘non-matrimonial debt’)
3. In many cases, attempting to prove or disprove that debts have been incurred in this way will be difficult. It may involve seeking disclosure going back several years, which the court may (legitimately) refuse at a First Appointment, bearing in mind the overriding objective and the requirement that litigation is proportionate.
4. What remains unclear in law is whether the court should approach the issue of whether debts are ‘matrimonial’ as a class of add-back (which is generally very difficult to prove, and involves a high threshold) or, where the facts justify it, a lower threshold.
5. There is however to the writer’s knowledge no authority which backs up or explains why a lower threshold should be applied.
6. As a general approach, practitioners would do well to bear in mind the Hippocratic Oath: do not make a case more difficult or intractable by pursuing an issue which, due to a cost/benefit analysis, will unlikely result in any profit for your client.

Alexander Chandler, 13 October 2020

To what extent do we apply precedent in financial remedies? Now that cases are routinely ‘reported’ on Bailii, what even counts as precedent? Can a case be cited even though it isn’t in the Official Reports or the Family Law Reports? Is there any difference nowadays between an ‘authority’ and what amounts to no more than an example of a judge’s decision in a given case on different facts?

Precedent and Family Law

As any law student knows, England and Wales has a common law legal system. Central to this is the concept of precedent, under which decisions of the higher courts are binding on the lower courts. In Willers v Joyce (re Gubay) [2016] UKSC 44, Lord Neuberger summarised the doctrine of precedent as follows:

” [4] In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability”

To what extent does this apply in family law (and more particularly, financial remedies) where the law is discretionary and a more flexible approach is taken to precedent? In B v B (Ancillary Relief) [2008] EWCA Civ 284, Wall LJ reflected that

[54] … the essence of any judicial discretion lies in its application to particular facts, and since each case requires its own particular resolution, the concept of fairness becomes, essentially a matter of judgment. In this context I am reminded of the wise words of Ormrod LJ, in Martin (BH) v Martin (D) [1978] Fam 12… spoken more than 30 years ago on 10 March 1977, but still, in my judgment, as applicable today as when they were first uttered:

‘…It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the Act of 1973, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate.’

Authorities v Examples

What this often leads to is a Cole Porter approach to the citation of case law: anything goes. Where equal weight is attached to a decision of (say) Mr Justice Mostyn as the Court of Appeal (or higher), or where any decision is relied upon, regardless of whether it is in any way authoritative (i.e. setting out new law or summarising existing principles).

Bailii is a tremendous resource, which freely makes available a huge corpus of case law. However, one downside of the availability of e even mundane High Court decisions (where even a decision to adjourn is ‘reported’) leads us to chaos where law cited in scattergun approach. A distinction is rarely drawn between a case which sets out to develop or condense the law

So, are there any rules? And if so, what are they?

The pyramid

At the risk of what Basil Fawlty would describe as stating the bleeding obvious, at the apex of the judicial pyramid is the Supreme Court, then the Court of Appeal, High Court, circuit judge, district judge and finally magistrates.

Mrs Justice Baron, whose early death was a tragedy as much for the Family Division as it was a personal one, put it best at first instance in Radmacher. (Some would argue that her decision in Radmacher was a good deal fairer than the outcome finally achieved in the Supreme Court, but that falls outside the compass of this blog). In Radmacher (which at first instance was anonymised as NG v KR [2008] EWHC 1532 (Fam), Baron J commented:

[82] At the outset I remind myself that I decide this case in accordance with English Law and tradition. In terms of financial relief upon divorce I am bound by the terms of the Matrimonial Causes Act 1973 (“the Act”) as it has been interpreted in the House of Lords and the Court of Appeal. Decisions of my fellow 1^st Instance judges may also be persuasive and/or illuminating. Under statute my first consideration is the two children of the family whilst they are minors. I must also take account of all the circumstances of the case and the factors set out in Section 25 of the Act to produce a result which is fair, just and does not discriminate against either party on the grounds of gender or for any other reason. Although fairness has been stated to be in the “eye of the beholder” and I am conscious that I must apply the Law carefully and clearly.

Accordingly, a High Court judge must yield to the Court of Appeal or Supreme Court (which The House of Lords morphed into on 30 July 2009) unless the decision of the higher court was reached through not being properly appraised of the law (i.e. per incuriam, see Mostyn J in UL v BK [2013] EWHC 1735 (Fam) at § 27-29)

What is citable as an authority?

The key Practice Direction which is often overlooked in the family court is the Practice Direction of 9 April 2001: Citation of Authorities. For reasons best known to the law reports, this appears in the Weekly Law Reports (the enjoyably binary [2001] 1 WLR 1001) but not in the Family Law Reports.

While this is directed to civil cases, there is no question that it also applies to the family court, as made clear in a recent amendment to the FPR Practice Direction 27A (emphasis added)

[4.3A.2] Attention is drawn to paragraph 6 of Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 and to Practice Direction (Citation of Authorities) [2012] 1 WLR 780 (both set out in The Family Court Practice) which must be complied with. The reference to “county court cases” in para 6.1 of the first practice direction should be read as including family court cases decided by a judge other than a judge of High Court judge level. Therefore, a judgment on an application attended by one party only, or on an application for permission to appeal, or that only decides that the application is arguable, or by the county court, or in the family court of a judge other than a judge of High Court judge level, may not be cited or included in the bundle of authorities unless either (i) the judgment clearly indicates that it purports to establish a new principle or to extend the present law or (ii) the court for good reason has specifically directed otherwise.

What cannot be cited:

The key provisions of the 2001 guidance are set out from § 6. In particular, § 6.2 provides that the following cannot be cited as authority “…unless it clearly indicates that it purports to establish a new principle or to extend the present law… that indication must take the form of an express statement to that effect.”

• “Applications attended by one party only;
• Applications for permission to appeal;
• Decisions on applications that only decide that the application is arguable;
• county court cases [extended to CJ and DJ decisions in the county court] unless: (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available.”

Does the judgment purport to create new law?

7.1 Courts will in future pay particular attention, when it is sought to cite other categories of judgment, to any indication given by the court delivering the judgment that it was seen by that court as only applying decided law to the facts of the particular case; or otherwise as not extending or adding to the existing law.

7.2 Advocates who seek to cite a judgment that contains indications of the type referred to in paragraph 7.1 will be required to justify their decision to cite the case.

State your proposition

[8.1] Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.

…

8.4 The statements referred to in paragraph 8.1 should not materially add to the length of submissions or of skeleton arguments, but should be sufficient to demonstrate, in the context of the advocate’s argument, the relevance of the authority or authorities to that argument and that the citation is necessary for a proper presentation of that argument.

Accordingly, applications for permission to appeal are not citeable. Decisions of a CJ or DJ are not citeable unless they arise in relation to an issue in respect of which no authority of a higher level is available. For the best, most flagrant breach of this Practice Direction, look no further than the “authority” of the “meal ticket for life” case of Wright v Wright [2015] EWCA Civ 201 which in truth was authority for nothing at all.

Alexander Chandler, 28 June 2020

Serafin v Malkiewicz [2020] UKSC 23

It isn’t easy being a judge. It isn’t easy getting to grips with the factual and legal complexities of a case, listening to evidence, weighing up the parties’ cases and reaching findings of fact on credibility. The task is more difficult where a case is badly or incoherently pursued, or where one or more parties acts in person. (Those two categories are not mutually exclusive). Or where a judge is faced with the pressures of an inadequate time estimate for a hearing, additional cases being added into the list or the occurrence of one or more of Sedley’s Law of Bundles.

Judges tempers occasionally snap. They are, after all, human.

However, sometimes it goes well beyond that.

Serafin was a claim for libel arising out of articles published in a Polish language newspaper (Nowy Czas/ New Time) which called into question the claimant’s reputation as a businessman.

The trial took place before Mr Justice Jay in October/ November 2017, best known for his role as leading counsel (as Robert Jay QC, prior to his appointment in 2013) for the Leveson inquiry.

By the time of the trial, the claimant (Jan Serafin) was acting in person; hardly an easy proposition in a libel claim involving considerable legal and factual complexity (the article in dispute was alleged to have had thirteen defamatory meanings/ imputations (titled ‘M1’ to ‘M13’), listed before a High Court judge in the QBD, and where the claimant’s first language was not English.

Once the wheels of justice had finished grinding, the claim was dismissed in its entirety. Mr Serafin (who re-instructed his lawyers) appealed to the Court of Appeal on three main grounds, the last being the judge’s conduct of the trial (i.e. ‘serious procedural or other irregularity’: CPR r.52.51(3)(b))

Court of Appeal

The Court of Appeal (Lewison, McCombe, Haddon-Cave LLJ) allowed the appeal, both on substantive grounds relating to the trial judge’s legal rulings (which fall outside the scope of this blog [a.k.a. defamation is not my area of law]) including that the judge was wrong to find that the statements complained of were already in the public domain. The third ground (judicial unfairness) was addressed by the Court of Appeal in its judgment, in a passage (from §108 to 118) which begins, somewhat portentously:

“[108]…It is a fundamental tenet of the administration of law that all those who appear before our courts are treated fairly and that judges act – and are seen to act – fairly and impartially throughout a trial”

The court reminded itself that it is wrong for a judge to descend into the arena and give the impression of acting as advocate (§ 110), before concluding that:

“[114]…It will be immediately apparent from reading these extracts (in particular the passages which we have underlined) that the Judge’s interventions during the Claimant’s evidence were highly unusual and troubling. On numerous occasions, the Judge appears not only to have descended to the arena, cast off the mantle of impartiality and taken up the cudgels of cross-examination, but also to have used language which was threatening, overbearing and, frankly, bullying. One is left with the regrettable impression of a Judge who, if not partisan, developed an animus towards the Claimant.“

The CA proceeded to annex extracts from the transcript, demonstrating the judge’s “serious transgressions”.

So far, so bad, from the point of view of Mr Justice Jay. While judges periodically see their decisions overturned on appeal, and on occasion find some (often veiled) criticism of their conduct in a given case, it is vanishingly rare for pages of transcript to appear, appended with criticism to a Court of Appeal judgment.

But in part due to the incoherence of the Court of Appeal’s order, the matter did not end there. On 3 June 2020, the Supreme Court weighed in.

Supreme Court

Law on unfair trials

Between §§ 37 and 46 of the court’s judgment, Lord Wilson reviewed the law relating to unfair trials:

[40] The leading authority on inquiry into the unfairness of a trial remains the judgment of the Court of Appeal, delivered on its behalf by Denning LJ, in Jones v National Coal Board [1957] 2 QB 55. There, unusually, both sides complained that the extent of the judge’s interventions had prevented them from properly putting their cases. The court upheld their complaints. At p 65 it stressed in particular that “interventions should be as infrequent as possible when the witness is under cross-examination” because “the very gist of cross-examination lies in the unbroken sequence of question and answer” and because the cross-examiner is “at a grave disadvantage if he is prevented from following a preconceived line of inquiry”.

41.              In London Borough of Southwark v Kofi-Adu [2006] EWCA Civ 281, Jonathan Parker LJ, giving the judgment of the Court of Appeal, suggested at paras 145 and 146 that trial judges nowadays tended to be much more proactive and interventionist than when the Jones case was decided and that the observations of Denning LJ should be read in that context; but that their interventions during oral evidence (as opposed to during final submissions) continued to generate a risk of their descent into the arena, which should be assessed not by whether it gave rise to an appearance of bias in the eyes of the fair-minded observer but by whether it rendered the trial unfair.

42.              In Michel v The Queen [2009] UKPC 41, [2010] 1 WLR 879, it was a criminal conviction which had to be set aside because, by his numerous interventions, a commissioner in Jersey had himself cross-examined the witnesses and made obvious his profound disbelief in the validity of the defence case. Lord Brown of Eaton-under-Heywood, delivering the judgment of the Privy Council, observed at para 31:

“The core principle, that under the adversarial system the judge remains aloof from the fray and neutral during the elicitation of the evidence, applies no less to civil litigation than to criminal trials.”

43.              The distinction, drawn expressly or impliedly in all three of the cases last cited, between interventions during the evidence and those during final submissions was stressed by Hildyard J in para 223 of his judgment in the M & P Enterprises (London) Ltd case, cited in para 38 above. He suggested at para 225 that, upon entry into final submissions, the trial had in effect entered the adjudication stage.

In relation to the previously unexplored question of how the conduct of a trial might be unfair to a litigant in person, Lord Wilson added:

“[46] … Every judge will have experienced difficulty at trial in divining the line between helping the litigant in person to the extent necessary for the adequate articulation of his case, on the one hand, and becoming his advocate, on the other. The Judicial College, charged with providing training for the judges of England and Wales, has issued an Equal Treatment Bench Book. In chapter one of the edition issued in February 2018 and revised in March 2020, the college advises the judges as follows:

“8.       Litigants in person may be stressed and worried: they are operating in an alien environment in what is for them effectively a foreign language. They are trying to grasp concepts of law and procedure about which they may have no knowledge. They may well be experiencing feelings of fear, ignorance, frustration, anger, bewilderment and disadvantage, especially if appearing against a represented party.

…

59.       The judge is a facilitator of justice and may need to assist the litigant in person in ways that would not be appropriate for a party who has employed skilled legal advisers and an experienced advocate. This may include:

…

Not interrupting, engaging in dialogue, indicating a preliminary view or cutting short an argument in the same way that might be done with a qualified lawyer.”

Training and experience will generally have equipped the professional advocate to withstand a degree of judicial pressure and, undaunted, to continue within reason to put the case. The judge must not forget that the litigant in person is likely to have no such equipment and that, if the trial is to be fair, he must temper his conduct accordingly.”

Lord Wilson concludes at § 49

[49].              What order should flow from a conclusion that a trial was unfair? In logic the order has to be for a complete retrial. As Denning LJ said in the Jones case, cited in para 40 above, at p 67,

“No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Lord Reed observed during the hearing that a judgment which results from an unfair trial is written in water. An appellate court cannot seize even on parts of it and erect legal conclusions upon them. That is why, whatever its precise meaning, it is so hard to understand the Court of Appeal’s unexplained order that all issues of liability had, in one way or another, been concluded. Had the Court of Appeal first addressed the issue of whether the trial had been unfair, it would have been more likely to recognise that the only proper order was for a retrial. It is no doubt highly desirable that, prior to any retrial, the parties should seek to limit the issues. It is possible that, in the light of what has transpired in the litigation to date, the claimant will agree to narrow the ambit of his claim and/or that the defendants will agree to narrow the ambit of their defences. But that is a matter for them. Conscious of how the justice system has failed both sides, this court, with deep regret, must order a full retrial.

As with the Court of Appeal, the Supreme Court’s judgment concludes with several pages of juicy extracts from the transcript, with the Supreme Court’s commentary which is perhaps unique in an English case (“…stops a relevant question”, “…introduces a note of sarcasm”, “… further sarcasm”, etc.)

Conclusion

So, beyond the extraordinary facts of the case, and the (possibly unique) example of a High Court judge being defenestrated in such a public way, what is the interest in the case for a family practitioner?

1. Serafin contains a helpful precis from the highest court in the land of the expected standards of judicial conduct of trials (§ 37-46)
2. In Serafin, the court considered to what extent this applied (or might be extended) to litigants in person, by reference to the Judicial College’s Equal Treatment Bench Book.
3. Most of all, Serafin is a good example of the rule of law and how the adversarial system works in practice. As Lord Denning once said (cited with approval by Lord Wilson in Serafin): “No cause is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.”

Alexander Chandler, 3 June 2020