MOSTYN J AND THE OPEN JUSTICE PRINCIPLE

A judicial view on open justice and ancillary relief proceedings

In DL v SL [2015] EWHC 2621 (Fam), dated 27 July 2015, Mostyn J delivered himself of his opinion on ‘the law (emphasis added) concerning the presence of the media in these private proceedings, which is contained in FPR 2010 r 27.11 and PD27B’. ‘The law’ is framed, says the judge, ‘to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them’.

This is the premise on which Mostyn J’s view is based. DL v SL is not, properly so-called, a ‘judgment’ (as it is described: http://www.bailii.org/ew/cases/EWHC/Fam/2015/2621.html). As far as I can see it decides no issue upon which the judge was asked to adjudicate.

Of rights and the open justice principle

Three features of English law are not touched upon by Mostyn J:

  • The rule in Jaffray (Jaffray v The Society of Lloyds [2007] EWCA Civ 586) – said by the Court of Appeal to be ‘trite law’ (at [6]-[7]): that rules cannot make or change the law. As will be explained it therefore follows that a rule, still less a practice direction, cannot change the common law.
  • The open justice principle – the open justice principle (OJP) is a common law construct (as explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343; approved by, amongst other Supreme Court cases, Kennedy v The Charity Commission [2014] UKSC 20: the common law and the variety of House of Lords/Supreme Court and Court of Appeal cases which explain it, was not referred to.
  • Fundamental rights: only be changed by express language or necessary implication – as Lord Hoffman explained in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien  [1999] UKHL 33; [2000] 2 AC 115:

In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document

A private court categorisation for ancillary relief proceedings

Mostyn J seeks to create the ancillary relief categorisation of private proceedings (see §[##] below). He does so by his take on JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96. In that case, a strong Court of Appeal (More-Bick, Black and Levison LJJ, including a prominent child lawyer in Black LJ) held that in the restricted circumstances of child settlement approval anonymity might be appropriate; but – as ever – on the basis that the hearing is public.

Mostyn J mentions the case, but not its conclusion, namely:

[33] An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood. Proceedings of this kind are sadly not uncommon and some or all of the issues to which this appeal gives rise regularly confront judges dealing with such applications. It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance.

[34] In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend. The court must also recognise, however, that the public and the Press have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made. If the Press or any other party wishes to contend that an anonymity order should not be made, it will normally be necessary for it to file and serve on the claimant a statement setting out the nature of its case.

[35] With that in mind we suggest that the following principles should apply:

(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;

(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;

(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;

(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;

(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;

(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.

A Court of Appeal decision like this – it was a judgment of the court – is a world away from Mostyn J’s opinionated attempts to fashion a legal system according to his reasoning, truly it is.

Order for preserving privacy: gagging order

Mostyn J went on, citing himself and others (though he does not extend the normal courtesy of reproducing his reference for all of us to read (an attempt to improve sales, perhaps?)):

[2] Accordingly, for the reasons that are set out in the book Financial Remedies Practice (Class Publishing, 2015 Edition) of which I, together with Sir Peter Singer, Lewis Marks QC and Gavin Smith are the authors, at paras 27.38 – 27.63, it is appropriate for me to make an order which preserves the privacy of the parties. Accordingly, I make an order in the following terms:

“The Media is prohibited from publishing any report of this case that –

(1) Identifies by name or location any person other than the advocates or the solicitors instructing them; or

(2) 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.”

[3] The preceding paragraphs are the reasons given by me orally on 27 July 2015, with imperfections corrected by me. However, I made it clear at the time, particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted, that I would take the opportunity of expanding my reasons when the draft transcript of judgment was received from the transcribers. This I now do.

He goes on to cite Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J; but not – perhaps unsurprisingly – my review of the case and OJP issues in August 2014 in Family Law News at http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko.

In that article I suggested that I was attempting –

… to provide a guide through the ‘rocky terrain’ [a quote of Mostyn J himself, from Roberts J]– 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. It involves a separation of family proceedings into: (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.

Common law or ‘sentiments’

Mostyn J warms to his theme; but perhaps confuses law with ‘sentiments’ (his word: see below):

[5] The principle of open justice has deep roots. Lord Bingham, writing in The Rule of Law (Allen Lane, 2010, p8), stated that at the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts [Mostyn J’s emphasis].  He was reflecting Jeremy Bentham’s famous aphorism that “publicity is the very soul of justice” (Works, Vol 4, 1843). Bentham was seeking to answer Juvenal’s famous question: quis custodiet ipsos custodes? The reason why justice should be administered openly was that “it is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”. By virtue of publicity the corrupt judge would find himself condemned in “the court of public opinion”. In this way “justice becomes the mother of security”. These sentiments were strongly endorsed by the House of Lords in Scott v Scott [1913] AC 417. In more recent times Lord Widgery CJ said much the same thing in R v Socialist Workers Printers ex parte Attorney General [1975] QB 637, as did Lord Diplock in Home Office v Harman [1983] 1 AC 280 at 303 and Lord Steyn in Re S (a child)(Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593 at para 30 (“the glare of contemporaneous publicity ensures that trials are properly conducted”). When Bentham was writing in 1843 there was, however, neither a developed appeal system (with published judgments) nor a regulated system of adjudicating complaints about judicial misconduct (the results of which are published in perpetuity on the internet). It might be thought that these developments have supplied an equally sure guard against improbity and an equally keen spur to exertion.

Mostyn J cites selectively: it is as if he is mounting an argument for a client, not giving a balanced judicial assessment. Thus, as Toulson LJ said in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 (of release of documents used by the court) the minority in Harman ultimately carried the day as the law was later changed (see CPR 1998 r 31.22):

[33] Lord Scarman, a thinker ahead of his time, said in Harman v Home Office [1983] 1 AC 280, 316:

“Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.”

[34] Lord Bingham CJ took matters further in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, 511-512:

“Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”

‘Publicity of proceedings is not an absolute principle’

I regret to say that in the next sentence – the first of §[8] – Mostyn J shows the poverty of his grasp of the common law. A skim read of  http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko or of my ICLR blog at  ‘“To be heard in the dining hall…”: Scott 100 years on’ http://www.iclr.co.uk/to-be-heard-in-the-dining-hall-scott-100-years-on/ (and of some of the House of Lords and Supreme Court cases there cited: Mostyn J does not refer to them); or indeed of the seminal trio of (say) Scott, Attorney General v Leveller Magazine Ltd [1979] AC 440 and ota Guardian News will show – alongside European Convention 1950 Art 6(1) – how solipsistic is Mostyn J’s argument:

[8] But publicity of proceedings is not an absolute principle. Surely no-one would suggest that an adoption proceeding, which is heard completely privately, is by virtue of that privacy alone robbed of justice. Or that a civil arbitration, again heard in private, was an unjust process. There are some processes which by virtue of their subject matter should be heard in private. When Bentham wrote over 170 years ago adoption did not exist and I suppose that just about the only matter then justifying secrecy would have been national security.

The majority of the House of Lords cases on the open justice principle, from Scott onwards, stress the exceptional nature of children and adoption proceedings (see italicised passage in A v BBC at §[29] below).

The modern common law may be said to be most succinctly summarised by Lord Hodge in A v British Broadcasting Corporation [2014] UKSC 25 (another case not expressly considered by Mostyn J; and where a principled exception to the OJP was allowed, as explained by the Supreme Court):

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [1913] AC 417, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor, of greater relevance to the present case, was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury considered wardship and lunacy to fall outside the scope of the general principle that justice should be administered in public, but accepted that proceedings concerning trade secrets, or to prevent the publication of private correspondence, were exceptions to that principle, observing at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:

As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

[30] A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:

But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”

After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin continued at p 239:

That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”

[31] More recently still, the importance of the common law principle of open justice was emphasised by nine Justices of this court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38;[2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society (para 2). He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.

[32] It has also been recognised in the English case law, consistently with Lord Neuberger’s requirement of the degree of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General v Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow “a much less drastic derogation from the principle of open justice”, namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press. Viscount Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively. Viscount Dilhorne gave as an example the practice of allowing a witness complaining of blackmail to withhold his identity from public disclosure in court, judicially approved in R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General [1975] QB 637. The proposition that the court had no power to allow a witness’s name to be withheld from the public had been roundly rejected in that case: such a direction, it was held, was clearly preferable to an order for trial in camera where “the entire supervision by the public is gone” (p 652).

Categories of court business

Mostyn J seeks to create new law, in a ‘judgement’ which has no ratio. There was no issue tried (§[3] … I made it clear [on 27 July 2015], particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted….’, is the nearest one gets to an issue to be tried.)

He precedes this by a brief reference to the balancing test required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593; but he then seems to be saying that this ‘ultimate test’ is not necessary here – ie again, he tells us, he at least is entitled to ignore the House of Lords and Supreme Court. He decrees that ancillary relief proceedings are:

[10] … so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression. These cases are those where the subject matter of the proceedings can rightly be categorised as “private business”. In a case of private business where the media are present (either by virtue of rules of court or a specific court order permitting that) an order for anonymisation will generally be made, if sought: see Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343[2010] 2 FLR 1290. Exceptions to this general rule are where the facts demonstrate disgraceful conduct: see Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427, or where they are so striking that anonymisation is in effect impossible: see, for example, McCartney v McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 1508. This principle, preserving privacy where the subject matter of the proceedings is private business, will be applied even where the rules provide for the hearing of the case in public: see JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, which concerned the approval of a personal injury settlement in favour of a minor, at paras 17, 29 and 35.

The judge’s insouciance is almost breath-taking. The conclusion to JX MX is cited earlier in this article. JX MX did not ‘preserve privacy’. It preserved only anonymity. The court stressed that the hearing remained in open court (see italicised passage in §[34] from JX MX (above)).

‘Protected by the anonymity principle’

Ancillary relief proceedings are ‘protected by the anonymity principle’: what anonymity principle? Mostyn J has made it up. A judge – it is trite law – cannot extend the common law save as part of a decision-making process: ie where a case is argued. And then the judicial reasoning – rather special pleading (added numbers as [7] are dealt with in the text below):

[11] Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle set out above. That they are so protected is to be deduced from a number of sources. First, and most obviously, [1] Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private. The fact that the media may attend the hearing pursuant to FPR 27.11 and PD27B does not alter the fact that the hearing is in private. Second, the process involves the extraction of highly personal and private information under compulsion which the recipient may not use save for the purposes of the proceedings: see [2] Clibbery v Allen (No 2) [2002] EWCA Civ 45[2002] 1 FLR 565, and Lykiardopulo v Lykiardopulo. Therefore, according to those authorities, the media may not report any such information without leave. Third, Article 14 of the 1966 International Covenant on Civil and Political Rights, which the UK ratified in 1976, stipulates that (a) the press or public can be excluded from all or part of the trial when the interest of the private lives of the parties so requires; and (b) that judgment is not required to be public where the proceedings concern matrimonial disputes. In my judgment [3] Article 14 creates a presumption against public judgment in matrimonial disputes, and therefore it logically follows that the proceedings should not be public either as otherwise the privacy of the judgment would be fatally undermined. It is trite law that when exercising a power a court should do so consistently with the state’s international obligations. Fourth, it is my firm opinion that the Judicial Proceedings (Regulation of Reports) Act 1926 applies not merely to the suit for divorce itself but also to the proceedings for ancillary relief. At the time it was passed ancillary relief was an intrinsic part of the divorce itself. Since it has been passed it has been extended to cover proceedings for maintenance under section 27 Matrimonial Causes Act 1973, and its civil partnership equivalent: see section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968. It would be bizarre if it applied to the now nearly obsolete form of maintenance proceedings that is section 27 of the 1973 Act but not to mainstream ancillary relief proceedings. [4] In Clibbery v Allen [2001] 2 FLR 819 Munby J (as he then was) held that the 1926 Act applied to ancillary relief (now financial remedy) proceedings. In the Court of Appeal the President thought he may well be right, although Thorpe LJ had his doubts. Since then the judges have skirted around the issue: see, for example, Rapisarda v Colladon [2014] EWFC 1406 at [31] to [35] where the President left open the question whether the 1926 Act applied to financial remedy proceedings. He described this uncertainty as a ‘truly a disturbing state of affairs’. He suggested that the 1926 Act ought to be repealed. With respect, I do not agree. The Act recognises and protects the private nature of divorce proceedings. It was amended by section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (as noted above); by section 66(1) of, and paragraph 2 of Schedule 8 to, the Family Law Act 1996; by section 280(2) and (3) of, and paragraph 7 of Schedule 26 to, the Criminal Justice Act 2003; and by section 261(1) of, and paragraph 8(1) and (2) of Schedule 27 to, the Civil Partnership Act 2004, and on each occasion Parliament must be taken to have endorsed its policy.

This passage, §[11], may be said to be the central passage of this part of Mostyn J’s view, yet in truth, it descends almost into farce:

  • ‘Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private’ – no it hasn’t (said in tones of Monty Python’s Flying Circus). Family Procedure Rules Committee has made rules, supposedly under powers delegated by Courts Act 2003 ss 75 and 76. The rules are ‘made’ by Parliament but subject only to the negative resolution procedure.

 

  • Of Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565, in the Court of Appeal: the case held precisely the opposite of what Mostyn J seems to be saying. In my ‘Open justice: the common law and exceptions to the principle: Part 1: Open justice and the common law’[2015] Family Law (forthcoming in October 2015) I explain this as follows:

The open court question and ‘private’ were considered in Allan v Clibbery  under Family Proceedings Rules 1991 (see eg paras [50] and [124]) but ‘private’ is not used in the same way in the later FPR 2010, r 27.10 as it was in that case. FPR 2010, r 27.10(2) says: ‘(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present’. In Allan v Clibbery, Dame Elizabeth defines ‘private’ as to exclude the public but not to have ‘the consequence of a ban on later publication’ (para [17]). Having considered the various applicable words – ‘private’, ‘chambers’, ‘in camera’ – she concluded:

‘[19] … I am driven to recall Humpty Dumpty: “When I use a word ‑ it means just what I choose it to mean ‑ neither more nor less.”

‘[20] I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

Originally Mr Allan had been granted an injunction restraining Miss Clibbery from publishing via the Daily Mirror. That was discharged by Munby J, but retained pending appeal. The President, with whom the other two LJJ agreed in her conclusion, discharged the injunction:

[83] In the present appeal, the Court has no information at all about the evidence which was adduced at the hearing in the county court, other than that reported in the newspapers. There is a blanket objection by the appellant to publication, based on the general premise that the case was heard in chambers and consequently must remain secret. On the information available to this Court and to Munby J. it was an issue of jurisdiction…. This appeal has to be decided on what the Court knows. Applying the principles which I have set out above, I can see no ground upon which, on the present facts, there cannot be publication of the proceedings. Although I consider, for the reasons set out above that he has expressed his general propositions too widely, I agree with the conclusions of Munby J. on the facts of the appeal

 

  • In my judgment – Mostyn J was not giving a judgment. His words are merely another comment from another lawyer; and on this evidence one with a shakey grasp of his subject.

 

  • Judicial Proceedings (Regulation of Reports) Act 1926 – this, I fear, is sophistry. The 1926 Act deals with publication, not with attendance at court, just as does Administration of Justice Act 1960 s 12(1). Mostyn J was dealing with exclusion from court, which is not the 1926 Act’s concern

Categorisation of ancillary relief proceedings

The categorisation issue is dealt with by Mostyn J thus:

[12] These considerations point powerfully to the categorisation of ancillary relief proceedings as private business entitling to the parties to anonymity as well as to preservation of the confidentiality of their financial affairs. Even if the rules provided for ancillary relief proceedings to be heard in public the parties would, in my judgment, be entitled to anonymity and preservation of the confidentiality of their financial affairs.

Mostyn J concluded the opposite in family proceedings under CPR 1998 (ie Trusts of Land and Appointment of Trustees Act 1996 proceedings:  ). Here he correctly cited CPR 1998 r 39.2 which provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice.

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

This may well represent a codification (in Lord Diplock’s words) of the common law. If so it applies to family proceedings (and on a principled basis Mostyn J could simply have said – after a proper evaluation of Human Rights Act 1998 s 12 (rights of the press) – that r 39.2(3)(c) applied).

FPR 2010 rr 27.10 and 27.11 on the evidence of r 39.2 and the common law, and on the basis of what the Court of Appeal held in Allan v Clibbery, are ultra vires the rule-makers.

Conclusion

Not allowing himself to be burdened by an application of the common law, or of Supreme Court authority which contradicted him, said Mostyn J in conclusion:

[17] In this case (the details of which are unremarkable and which are briefly discussed below) I was entirely satisfied that the general rule of anonymity and privacy should be respected and I therefore made the orders referred to above. The order itself is attached to this judgment at Annex A…. [and see his summary in his §[2] above].

David Burrows

22 September 2015

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3 thoughts on “MOSTYN J AND THE OPEN JUSTICE PRINCIPLE

  1. Pingback: THE RIGHT PRINCIPLES; BUT NOT NECESSARILY IN THE RIGHT ORDER | dbfamilylaw

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