Open justice: when is secrecy lawful in family proceedings? – Part 2




Family proceedings: how ‘private’?


This series asks to what extent do court rules say family proceedings are permitted to be heard in secret (‘private’); and to how far does the law say such proceedings should be heard in open court (like the majority of other court proceedings). Within that question, this series will look only at hearings and publication of court documents. It will refer in particular to proceedings under FLA 1996 Pt 4 (domestic abuse injunctions) as its starting point.


The series will look at the following topics:


  • What does the law say about open court principles and about the powers of the court to permit publicity for court material (Part 1)?
  • To what extent is what is said about open justice in Family Procedure Rules 2010 (FPR 2010) within the powers of the rule-makers as defined by Courts Act 2003 (as explained in this Part)?
  • If an individual (a journalist (say), or anyone who might want to go into court: if it’s open court they don’t have to justify themselves) believes they have been wrongly excluded from court or refused permission to publish information, what can they do, and in which court.


The final topic will be considered in the next Part.


Open justice and the common law


As explained in Part 1 law is made by Parliament (statute law) and by judges at High Court, and higher, levels (the common law). Open justice is a common law principle as explained by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:


[69] 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.


Neither form of substantive law can be changed by court rules (or by other delegated legislation) unless an Act of Parliament says so. Senior Courts Act 1981 s 51(1) provides an example. It defines the law for payment of costs in civil proceedings (including in family proceedings). The award of costs ‘shall be in the discretion of the courts’; but that is always subject to the opening words of s 51(1), namely that how a judge decides on costs is ‘Subject to the provisions of this or any other enactment and to rules of the court’. And CPR 1998 r 44.2 encapsulates the long-standing common law principle that – all other things being equal – the loser pays the successful party’s costs: costs follow the event.


As already mentioned (in Part 1) Lady hale emphasised this point in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 when she said: [27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute…


Powers to make court rules for family proceedings


Rules for family proceedings are made by Family Procedure Rules Committee (FPRC) under Courts Act 2003 ss 75 and 76. The question then is: are there any statutory provisions in Courts Act 2003 which enables FPRC to alter substantive law, akin to those set out in SCA 1981 s 51(1)?


Courts Act 2003 ss 75 and 76 set up the FPRC and say what it powers are to be (delegates to it what Parliament permits it to do). There are to be court rules (namely Family Procedure Rules) made by the FPRC (ss 75(1) and (2)). But what do ss 75 and 76 say about altering existing law? As far as I can see, the only provisions which may be said to permit altering existing substantive law are:


75 Family Procedure Rules

(4)The power to make Family Procedure Rules includes power to make different provision for different areas, including different provision—

(a)for a specified court or description of courts, or

(b)for specified descriptions of proceedings or a specified jurisdiction.

76 Further provision about scope of Family Procedure Rules

(2)Family Procedure Rules may —

(a)modify or exclude the application of any provision of the County Courts Act 1984 (c. 28)…

(2A)Family Procedure Rules may, for the purposes of the law relating to contempt of court, authorise the publication in such circumstances as may be specified of information relating to family proceedings held in private.]

(3)Family Procedure Rules may modify the rules of evidence as they apply to family proceedings in any court within the scope of the rules.


Family Procedure Rules 2010 and the common law


Two rules in FPR 2010 impact on secrecy (privacy) of family court proceedings are those which restrict attendance at family court hearings and which are said to restrict release of documents.


The open justice principle is denied by the rules – I emphasise, by the rules – for family court hearings in the following terms:


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.


For release to ‘any person’ (ie including to non-parties, press etc) of any document filed in family courts, FPR 2010 r 29.12(1) says:


(1) … 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 permission.


In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J said r 29.12(1) meant: ‘[13] … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’ This is not what the law says (see eg Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) discussed most recently at ‘Release of hearings documents’).


Many readers – lawyer and non-party alike – will treat what Mostyn J says in Appleton as a statement of the law. Whether this was ever the law was always doubtful, surely? It is not what r 29.12(1) actually says. And it was not part of what Mostyn J had been asked to decide anyway (not what lawyers call part of the ratio decidendi of his decision, which he defined as: ‘[5] All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified,… It is highly important that I should exercise my powers very carefully and cautiously…’. Nothing is said here about an contested decision on non-party release of documents. Mostyn J’s comment was said by the way (obiter): it does not define legal principle or add anything to the common law.


Common law and secret family proceedings


What the common law says about hearings in open court generally was summarised in Part 1. As the Guardian v Westminster and Cape Intermediate v Dring cases (both mentioned above) confirm there may well be circumstances in any type of proceedings (criminal and civil (including family)) where court materials may be released to non-parties (such as a journalist).


The rules assertion of secrecy (‘in private’) in all cases save as otherwise permitted by the rules and any blanket ‘access to documents whatsoever’ is not what the law says; and there is no evidence that I can see that such a broad denial of the open justice principle is open to the rule-makers under the powers given to them by Parliament (Courts Act 2003 ss 75 and 76). There is nothing in ss 75 or 76 about altering or modifying the common law; still less does the 2003 Act say the FPRC can reverse the common law.


Properly considered I do not believe that either FPR 2010 rr 27.10 or 29.12 (if r 29.12 says what Mostyn J says it says) represent the law; and that the exceptions to open justice summarised by CPR 1998 r 39.2(3) (set out in Part 2) and Administration of Justice Act 1960 would be more appropriate for family courts. Save where children were the subject of proceedings (or any other aspect of r 39.2(3) apply) this would require the Family Court to hear domestic abuse proceedings in open court.


And if a family court refuses to sit in public how does a person who wants to hear the case challenge the court’s refusal. I will attempt to deal with this in Part 3…


David Burrows

3 September 2019

Release of hearings documents and open justice in the Supreme Court

20160419_173301Access by non-parties to court documents


The issues in the ‘important case’ of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) (Cape Intermediate v Dring) were summarised by Lady Hale (who gave the judgment of Court consisting of Lord Briggs, Lady Arden and Lords Kitchen and Sales) at [15] 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: see commentary on this rule and the case in the Court of Appeal in Family Court Practice 2019 at 3.2016)? Does the rule ‘give the court power to order access to all documents which have been filed, lodged or held at court’; or is it more limited, as held by the Court of Appeal in [2018] EWCA Civ 1795 (31 July 2018).
  • 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 Supreme Court upheld the decision of the Court of Appeal that, for good reason, the court can order release to non-parties of certain court material, in its inherent jurisdiction. In so doing the Court sustained the open justice principle as defined by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster)). The background to the issues in this case were looked at in the ICLR blog at ‘Release of family courts hearing documents’; and Cape Intermediate v Dring in the Court of Appeal was reviewed fully in a series of articles entitled ‘Court documents: Part 1, Part 2, Part 3 and Part 4’.


Cape Intermediate and the family lawyer


On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998 (ie not to family proceedings: CPR 1998 r 2.1(2)). But as the Supreme Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). And this plainly includes proceedings under Family Procedure Rules 2010 (FPR 2010) and in all family courts, subject to the exceptions (see in [46]) in line with where the court will order private hearing (see CPR 1998 r 39.2(3), and considered later in this article).


The Supreme Court decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster (successful disclosure of criminal proceedings documents to The Guardian). Lady Hale cites Toulson LJ:


[1] 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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.


Guardian v Westminster has been frequently referred to since 2012. Notably, it was affirmed by the Supreme Court in Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455 and A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558. The concept of open justice goes back at least to Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where the House of Lords explained the long history of the principle (and see ICLR blog: ‘To be heard in the dining hall…’: Scott 100 years on’).


The application of the principle to all common law courts – that, not just to courts which are subject to CPR 1998 – is explained clearly in Cape Intermediate v Dring where the Supreme Court says:


[41] 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.


Cape Intermediate v Dring and the family courts


Not least of all, the open justice principle applies to family courts, though with the variety of exceptions trailed in Scott (above), and now more specifically summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3) (see Part 2). A summary of these statutory provisions is provided in Dring:


[46] … There may be very good reasons for denying access [to documents]. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality….


So 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?


First, what are the rules in question here; and how do they apply to civil proceedings after Dring? CPR 1998 r 5.4C (as relevant here) provides, under the heading, ‘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) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(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.


In addition, CPR 1998 PD5A para 4.2 sets out a variety of formal ‘records of the court’ which any party to the proceedings is entitled to: for example, written evidence filed in relation to an application, judgments or orders made in public and any notices of appeal.


The parallel rule in family proceedings (not cited in Dring) is FPR 2010 r 29.12(1) which says – a little elusively, it might be thought – under the heading ‘Access to and inspection of documents retained in court’ that save where the rules or a practice direction otherwise provides ‘no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court’. In context the term ‘inspection’ (see also FPR 2010 r 21.1(2)) can be taken to mean inspection and copying for a suitable fee; though no mention is made here specifically of non-party inspection. Again perhaps that can be implied; but the law must surely be clearer on this point.


Cape Intermediate v Dring: the case and the decision in the Court of Appeal


Cape Intermediate v Dring gives the Supreme Court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to those not directly party to proceedings (ie ‘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 [1983] 1 AC 280, [1982] 2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 (both cited in the Supreme Court).


The case itself came about after an asbestos victim support group (Mr Dring was an officer of the group), not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order which had been made by a Master under the provisions of CPR 1998 5.4C (above).


The Court of Appeal ([2018] EWCA Civ 1795 (31 July 2018)) narrowed the ambit of an earlier Master’s order and held (on direct appeal from the Master) that the court could give permission for release to a non-party the following (and see summary in the Supreme Court decision at [9] to [11]):


  • The documents summarised in para 4.2 (above); but not including, necessarily, trial bundles.
  • In its inherent jurisdiction the court generally, has an inherent jurisdiction to permit non-parties to obtain certain documents (see [69]); GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 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 at [69]; 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 [2002] EWCA Civ 2, [2002] 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 [96]), but not their exhibits (Cape Intermediate at [100]); and
  • any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at [110]).
  • The Court of Appeal sent to Picken J a decision as to whether certain other specific documents fell within (2) above or otherwise required release to comply with open justice principles.


On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision. Limits remain on application of r 5.4C; but in general terms the spirit of the important Court of Appeal open justice principle decision in Guardian v Westminster has been developed by the Supreme Court and Court of Appeal and related more generally to civil proceedings.


So where does this leave the non-party in family proceedings? The next article looks at the extent to which FPR 2010 r 29.12 is compliant with the common law; and, if it is not, whether it is within the statutory powers of the rule-makers (Family Procedure Rules Committee). Subject to that, what are the powers of family judges to order release of documents from family proceedings?