Case management, publicity and Cooper-Hohn v Hohn
The judgement of Roberts J in Cooper-Hohn v Hohn  EWHC 2314 (Fam) raises important questions about publicity in financial remedy proceedings. The judge found herself required to give ‘a case management’ decision in a substantial money case where ‘accredited members of the press have been present, as they are fully entitled to be’ (FPR 2010 r 27.11(2)(f)). The question for her was: ‘.. the extent to which [the press] should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.’ The press were separately represented. Application was made for reporting restrictions to be lifted.
Roberts J refused to impose full reporting restrictions (as Mr Hohn wanted) but restricted the press, on terms which were less than Mrs Cooper-Hohn want, as follows (para 98 of her judgement):
The media shall be prohibited from publishing any such report that refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.
Roberts J describes her job (at para 61) on reporting restrictions as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. She concluded – looking at her decision through the prism of European Convention 1950 Art 8 (respect for private life) and 10 (press freedom); and perhaps Art 6(1) (right to a fair trial; administration of justice) – that she should make the restriction order (above). She resolved the parties and the press’s Convention rights as follows:
 I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.
A guide through ‘rocky terrain’: start from the common law
This article attempts to provide a guide through the ‘rocky terrain’ – limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. I shall suggest here that the best starting point is the common law, as summarised most succinctly in Civil Procedure Rules 1998 r 39.2.
First it is important to be clear as to the threefold categorisation of family proceedings: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960 s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960 s 12(1) are likely to be rare in financial remedy proceedings.
The starting point is the common law rule that all proceedings should be in public (Scott & Anor v Scott  UKHL 2,  AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished ‘unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally’ said Lord Scarman in Attorney General v Leveller Magazine Ltd  AC 440 at 469. This position is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’. CPR 1998 r 39.2(1) asserts: ‘The general rule is that a hearing is to be in public’.
This ‘open justice principle’ and its place in the common law was explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 as:
 The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.
Family proceedings hearings ‘in private’
Confusion in proceedings covered by FPR 2010 arises from the fact that FPR 2010 r 27.10(1) asserts that all proceedings under FPR 2010 shall be held ‘in private’. This suggests that there is a presumption of privacy for family hearings. The common law and Convention jurisprudence provides the opposite. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies. Nor is it clear on what underlying legal principle, statute or common law, the rule-makers derive their rules on attendance at private hearings (FPR 2010 r 27.11), especially of the press (‘accredited representatives of news gathering and reporting organisations’: r 27.11(1)(f)).
If tested it seems unlikely that FPR 2010 rr 27.10 and 27.11 would be found to be intra vires any established principle of law or Convention principle. Convention jurisprudence which is the starting point for any restraint on publicity (Re S (Identification: Restrictions on Publication)  UKHL 47,  2 AC 593 per Lord Steyn at ). Of the status of rules as law: rules ‘cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised’ (Jaffray v The Society of Lloyds  EWCA Civ 586, per Buxton LJ at ).
When in contempt of court?
This note therefore proceeds on the basis that, other than in proceedings covered by AJA 1960 s 12, any restriction of publicity, whether as to attendance at a hearing or of the reporting of a hearing, must be justified in law. Exceptions set up by the common law relate to the hearing of proceedings and, separately, to the documents in those proceedings and their ‘use’. These exceptions are set out in CPR 1998 rr 39.2(3) and 31.22(1). The first rule provides that a hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (r 39.2(3)(a); see eg the Leveller Magazine case (above)); the case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (r 39.2(3)(c)) which might have applied in Cooper-Hohn); and ‘the court considers this to be necessary, in the interests of justice’ (r 39.2(3)(g)).
A separate jurisdiction also arises from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides ‘use’ questions and the publication of proceedings overlap. CPR 1998 r 31.22 provides:
(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.
There is no equivalent to rr 39.2 or 31.22 in FPR 2010. The court has a separate power to restrict the use of parties’ names (CPR 1998 r 39.2(4) which was at issue in eg W v M (TOLATA Proceedings; Anonymity)  EWHC 1679 (Fam), Mostyn J.)
Publicity in financial remedy proceedings
Issues of publicity for a hearing or of documents therefore arise in financial remedy proceedings in the following contexts:
(1) Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
(2) Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
(3) Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
(4) Even if (3) applies, whether a party can be restrained from use of the document.
The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo  EWCA Civ 1315,  1 FLR 1427 provides a starting point:
 Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.
Reporting of hearings in open court
CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. A search of Family Law Online reveals references to the rule only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin  EWCA Civ 632,  FLR 1108; though in DE v AB  EWCA Civ 1064 Ryder LJ dealt with privacy without any reference to r 39(3)). In Allan v Clibbery  EWCA Civ 45,  1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at . The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).
‘Use’ of documents following the court proceedings
Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B  1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.
Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd  EWCA Civ 1109 at ). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another  1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).
Has a document has been referred to in open court proceedings
If a document has been referred to or read in open court it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd  EWCA Civ 2:
…  (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.
In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc  EWCA Civ 1781,  4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are like to be resolved (see eg Allan v Clibbery) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)) as Mr Allan tried unsuccessfully to do.
Release of documents to a third party
A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO  EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents. Each case, he emphasised, turns on its own facts (Crest Homes v Marks  AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd  1 WLR 1479 at ). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny  1 WLR 104, CA at , ; but see eg Y v Z  EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).
A number of the principles which arise here – and which arose in the Cooper-Hohn interim hearing – cross over from (say) an initial application for a case to be in private (CPR 1998 r 39.2(3); ie to lift restrictions on publicity in financial remedy proceedings) to the separate question of whether the court gives permission for use of documents otherwise restricted from release by their having been disclosed but not referred to in court. The first point for any applicant under these areas of law is to be clear into which category of publication of a hearing or release of documents the application arises, and then to apply the principles outlined above to the application in question.