1 INTRODUCTION AND BACKGROUND
Straws in the wind
Work has been done by the President, Sir Andrew McFarlane P, and his predecessor on publication of judgements; and ‘legal bloggers’ are allowed into courts otherwise closed by Family Procedure Rules 2010 (FPR 2010) r 27.10. A new draft practice guidance – not a practice direction? – is at large (in draft or made as guidance?) on ‘Guidance as to reporting in the family courts’.
The Family Procedure Rules Committee (FPRC) has ruled that hearings under FPR 2010 (unless otherwise stated) are to be ‘in private’ (FPR 2010 r 27.10); but what this means beyond the actual hearing of the case (eg as to release of documents and information to those attending court, anonymisation, publication of material from a hearing and so on) is not clear.
Perhaps the time is appropriate for review of the following:
- What is the position of release of court material after Guardian v Westminster (below) and Cape Intermediate v Dring (below);
- If the Supreme Court can release parties’ skeleton arguments (see in R (on the application of Miller) v The Prime Minister  UKSC 41 (24 September 2019)) cannot other courts do so, anonymised where suitably directed;
- Is it time for review of Sir James Munby P’s Transparency
Open court: the default position
The default position for all common law litigation is that it be heard in open court, unless exceptional circumstances dictate that part or all of a hearing be heard privately. In the recent R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (Guardian v Westminster) Toulson LJ explained this as:
 Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process….
In the recent Supreme Court case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38,  3 WLR 429 (29 July 2019) the court was considering the jurisdiction of the courts generally to permit release of court material ton non-parties. Of the context for their decision they said:
 …However, case after case has recognised that the guiding principle is the need for justice to be done in the open and that courts at all levels have an inherent jurisdiction to allow access in accordance with that principle. Furthermore, the open justice principle is applicable throughout the United Kingdom, even though the court rules may be different.
All courts at whatever level are subject to the open justice principle.
Family proceedings and open justice
Family Procedure Rules 2010 (FPR 2010) r 27.10 says that all hearings’ or family ‘proceedings’ should be in private save where stated otherwise (eg divorce: r 7.16(1)):
27.10 Hearings in private
(1) Proceedings to which these rules apply will be held in private, except –
(a) where these rules or any other enactment provide otherwise;
(b) subject to any enactment, where the court directs otherwise.
(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 Guardian v Westminster Lord Toulson emphasised the substantive law – the common law – source of the open justice principle:
 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.
In Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 (and see the same point in Jaffray v The Society of Lloyds  EWCA Civ 586,  1 WLR 75) Lady Hale said:
 [Court rules cannot] change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)  Ch 1210
The power to make FPR 2010 is delegated to the FPRC by Courts Act 2003 ss 75 and 76. There is no power, vested in FPRC by ss 75 or 76, to rewrite the common law in relation to open justice. It is likely that, if challenged, r 27.10 would be found to be ultra vires the rule-makers (ie outside the powers given to them by Parliament). Perhaps that is for another day….
Open justice and related issues
For the present it is necessary to recall that open justice principles apply also to other aspect of court proceedings; and to accept, for now, that FPR 2010 rule-makers have the power to alter the common law. The hearing may be ‘in private’; but what of other open justice related issues (Guardian v Westminster was about a press request for documents after a magistrates’ court extradition proceedings hearing). Such open justice related issues include:
- Release of documents prior to a hearing to help anyone one (eg a journalist under FPR 2010 r 27.11(2)(f)) to understand what is happening;
- Release of documents after a hearing (Cape Intermediate v Dring);
- Publication of a judgment anonymised or not
- Reporting restrictions orders; and – especially – for how long (and for how long are parties to be embargoed from releasing, or the press from publishing, material in the case?
- Anonymisation or parties, and of witnesses (eg witnesses, especially experts, social workers, accountants, medics and valuers)
In law, all of these topics start from open justice principles; but none are related directly to whether or not a hearing takes place in private. FPR 2010 r 27.10 does not necessarily apply.
Hearing in ‘private’
Although each of Administration of Justice Act 1960 (AJA 1960) s 12(1), FPR 2010 r 27.10 and CPR 1998 r 39.2(3) speak of hearing ‘in private’, only r 27.10 tells us that ‘proceedings held “in private”’ means the public have no right to be present. Case law tells us a lot more. This was explained in ‘Private hearing, in secret and in chambers’. So what then are the consequences of a hearing being held ‘in private’?
2 AREAS FOR REFORM
Areas for immediate review or reform
The areas referred to above for reform can be boiled down to:
- Anonymisation of parties and of witnesses.
- Release of documents prior to a hearing, with permission of the court.
- Release of documents after a hearing to non-parties (Cape Intermediate v Dring), with permission of the court.
- Publication or ‘use’ of disclosed documents.
- Publication of a judgment anonymised or not
- Reporting and other restriction orders: for how long?
This note will touch on the first to the fourth of these.
I know work is being done in other parts of the common law jurisdictions on this. I will only mention it here because, in a case which is to be dealt with privately, anonymisation on terms directed by the court, or agreed by the parties, will be important early on. Any documents – such as skeleton arguments, statements (without enclosures) etc – released to non-parties (eg to the press; under (2) in the above list) – can be suitably anonymised from an early stage in proceedings.
By the way, calling parties first, second etc ‘respondent’ does not anonymise them: it just confuses the reader, especially when the case may be entitled Re x. And then in the Court of Appeal the parties may all be something different. Please give the parties names, or – if anonymised – false names or letters. (One case I was involved in recently the judge just took all the initials and moved them one place in the alphabet: I am not sure that was much by way of anonymisation.)
(2) Release of material prior to hearing
Because a hearing is in private does not mean material cannot be release from, or in relation, to it. FPR 2010 r 29.12 says:
29.12 Access to and inspection of documents retained in court
(1) Except as provided by this rule or by any other rule or Practice Direction, no document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without such permission.
In Appleton & Gallagher v News Group Newspapers Ltd & PA  EWHC 2689 (Fam),  2 FLR 1, Mostyn J said – obiter (ie it was not part of his decision, and is not therefore law) – that
 … the press are not allowed any access to documents whatsoever – see FPR 2010, r 29.12. This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly. Further still, PD 27B paras 2.4 and 5.2(b) confirm the ‘unaffected’ continuance of the existing reporting restrictions for such proceedings held in private….
 … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.
This comment is open to three main criticisms:
- Parliament does not ‘pass’ rules. They do not have the weight of statute. They are made by delegated authority under Courts Act 2003 (as explained above) and by the negative resolution procedure: Courts Act 2003 s 79(6))
- It is impossible to see that r 29.12(1) says what Mostyn J says. It specifically says that with permission ‘any person’ (ie including a non-party such as the press) with permission can inspect documents and can take copies.
- FPR 2010 r 29.12(1) must be looked at alongside CPR 1998 r 5.4C.
The nearest equivalent in civil proceedings to r 29.12(1) is CPR 1998 r 5.4C(1) and (2) (though this rule deals with non-party access, specifically, which would – of course – include the press):
Supply of documents to a non-party from court records
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of [a statement of case etc; any judgment etc].
(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.
The working of this rule is dealt with in Cape Intermediate v Dring (see the next part of this note); but it is important to mention it here because its reach goes to all court proceedings (civil (including family) and criminal); and in principal it can apply to pre- and post-hearing documents as appropriate.
Guardian v Westminster concerned an application after the hearing for documents; but there was a helpful discussion by Toulson LJ, especially at -, of the reason for pre-hearing disclosure. He explained the need for this to bring modern practice of courts – where a lot of reading is being done alone by judges – into line with the need for an open system of justice.
(3) Release of material after a hearing; access by non-parties to court material
In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38 (29 July 2019) the issues were summarised by Lady Hale (who gave the judgment of the Supreme Court: Lord Briggs, Lady Arden and Lords Kitchen and Sales) at  as:
- What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records?
- Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
- If there is such a power, how far does it extend and how should it be exercised?
The case applies to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). The decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster.
 The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.
How does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?
The case gave the court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to non-parties’. It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department  1 AC 280,  2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc  EWCA Civ 1781,  4 All ER 498,  FSR 1 (both cited in the Supreme Court and note in - of Guardian v Westminster).
The court held that a court could give permission for release to a non-party the following (see  to ):
- The routine documents summarised in CPR5A1 para 4.2 (above); but not including, necessarily, trial bundles.
- In its inherent jurisdiction the court generally, has jurisdiction to permit non-parties to obtain certain documents (see eg GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection  1 WLR 984 at 994-5).
The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:
- skeleton arguments and other written submissions (Cape Intermediate in the Court of Appeal at ; GIO (above));
- documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd  EWCA Civ 2,  1 WLR 2253; and see CPR 1998 r 31.22);
- witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at ), but not their exhibits (Cape Intermediate at ); and
- any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at ).
If documents are suitable anonymised and to accord with principles of open justice – at least for those permitted into court: FPR 2010 r 27.11(2) – the question must be: why cannot any of these documents be released to non-parties (subject to any issue which arises under AJA 1960 s 12 and ‘the implied undertaking’)?
(4) Incidence of the ‘implied undertaking’
Alongside release of documents to non-parties must also come the question of the ‘implied undertaking’ as to release of documents which a party has been compelled to disclose (eg by the requirement for full and frank disclosure in financial relief proceedings).
The undertaking has been codified in CPR 1998 r 31.22(1)-(3) as ‘subsequent use of disclosed documents’ as follows
Subsequent use of disclosed documents…
(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.
(3) An application for such an order may be made –
(a) by a party; or
(b) by any person to whom the document belongs.
It can reasonably be assumed that this rule in this form applies to family proceedings (see discussion in Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565); but then the question is, was the hearing ‘in public’. If not and the hearing was ‘in private’ which of the definitions above applies?
CPR 1998 r 5.4C deals with application by a non-party. Rule 31.22(1)(a) deals with the extent to which a party can publish documents. The consequence of the rule in Clibbery v Allan – which has not been altered by the subsequent making of FPR 2010 – is that a party to proceedings can ‘use’ (ie publish, as did Ms Clibbery) a document disclosed in proceedings heard ‘in private’ where it has been read by the court; or otherwise with permission or agreement of her opponent (neither of which applied).
All of this is most emphatically subject to the statutory restraints of AJA 1960 s 12(1); but for most family proceedings purposes, only s 12(1)(a) (ie children proceedings) applies for open court hearings.
The party who wishes to publish following a hearing – say to pass to the press details of her husband’s financial dealings after the hearing – must decide whether the judge has ‘read’ the documents concerned. If so, the fact that a hearing was ‘in private’ – at least on the case law of 1999-2004 – suggests there is no breach of the ‘implied undertaking’. If there is the remedy is private, not the criminal contempt implied by AJA 1960 s 12 (Attorney General v Leveller Magazine Ltd  AC 440).
Proposals for reform will follow in a later article.