What is ‘private’: a need for clarity in law
Both sets of relatively recent court rules – Civil Procedure Rules 1998 (CPR 1998) and Family Procedure Rules 2010 (FPR 2010) – use the term ‘private’ of court hearings, but without any attempt in either to define ‘private’. More seriously the earlier Administration of Justice Act 1960 s 12(1) uses ‘private’ without any attempt in the Act to define it. I say ‘more seriously’ because s 12(1), in its inscrutable way, suggests that publication of information from certain types of proceedings ‘in private’ may be a ‘contempt of court’. A person found to be in contempt may be sent to prison. But why should anyone be sent to prison if they don’t know that what they have done is wrong because ‘private’ is not defined?
Lord Bingham’s first rule of law, in his David Williams memorial lecture in 2006 concerned clarity in law:
‘First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.’
This accessibility is most obviously associated with criminal proceedings, but it applies generally to all law. In the case of contempt and imprisonment for a possible breach of court privacy, it assuredly applies. If you don’t know that a court is truly sitting ‘in private’, or – worse still – it perhaps should not be sitting in private, then can you still be sent to prison for alleged breach of the law. If you are threatened with prison the condition for that – what you may publish from a ‘private hearing’ – depends on its defining condition, that the court is ‘in private’ and what that means, in law.
Each of the statute and sets of rules have interpretation or definition sections; yet none of them say what is meant by ‘private’, save that FPR 2010 r 27.10(2) says what it is not: namely ‘proceedings at which the general public have no right to be present’. I will therefore set out the relevant provisions and then set out what the courts have said to explain ‘private’.
‘In private’: statute and rules
AJA 1960 s 12(1) under the heading: ‘Publication of information relating to proceedings in private’ says:
‘(1)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;
(b)where the proceedings are brought under the Mental Capacity Act 2005 [etc];
(c)where the court sits in private for reasons of national security…;
(d)where the information relates to a secret process, discovery or invention which is in issue in the proceedings;
(e)where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published.’
Nothing is said here about the main variety of family proceedings, save children proceedings. Such proceedings – especially financial proceedings – may be caught by another common law rule, namely that a party may not publish documents disclosed under compulsion (eg ‘full and frank disclosure’)). Subject to that publication of documents and other material from family proceedings other than children proceedings appears not to be caught by s 12(1), even though a hearing was dealt with ‘in private’. (I add, though it is of little direct relevance here, that Children Act 1989 (CA 1989) s 97 prohibits the publication of ‘material which is intended, or likely, to identify’ a child involved in proceedings; but the prohibition comes to an end once the proceedings have been concluded (Clayton v Clayton  EWCA Civ 878,  Fam 83,  1 FLR 11; Re J (A Child) (contra mundum injunction)  1 FLR 523,  2 FCR 284 Sir James Munby P).)
CPR 1998 r 39.2(1) requires that all civil proceedings be in public, save as set out in r 39.2(3), the main part of which says:
‘(3) A hearing, or any part of it, must be held in private if, and only to the extent that, the court is satisfied of one or more of the matters set out in sub-paragraphs (a) to (g) and that it is necessary to sit in private to secure the proper administration of justice –
(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;..’
And finally, FPR 2010 r 27.10(1) says:
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.
‘In private’ and the common law
In the absence of any statutory definition of ‘in private’, in secret and so on, what does the common law say, what do the judges say. The subject of what is meant by private (or in chambers) in the period since the drafting and introduction of CPR 1998, really comes alive with Forbes v Smith  1 All ER 973,  1 FLR 835, Jacob J (21 December 1997) where he gave permission to publish a judgment given in chambers in bankruptcy proceedings. In so doing he said (at FLR 836):
‘The concept of a secret judgment is one which I believe to be inherently abhorrent. Only in cases where there is a cause for secrecy, such as in a trade secrets’ case, can it in general be right that a judgment should be regarded as a secret document. Even then it may be only a part of the judgment needs to be secret. I conclude, in the absence of binding authority to the contrary, that when judgments are given in chambers they are not to be regarded as secret documents.’
Less than two months later, at a time when the Civil Procedure Act 1997 had been on the statute book for a year, and drafting of what became Civil Procedure Rules 1998 was well under way, the Court of Appeal gave judgment in Hodgson v Imperial Tobacco Ltd  1 WLR 1056 (12 February 1998). The case concerned claims against a tobacco company, on behalf of a variety of claimants. They said their cancer gave them a cause of action against the company.
Public access to chambers hearings
The court reviewed the ‘exceptional’ circumstances for hearings in camera recognised in Scott and emphasised the distinction between ‘chambers’ on the one hand and ‘secret’ and or ‘private’ hearings on the other (at 1070). The judgment of the court was given by Lord Woolf MR who was then chairing the committee which was preparing CPR 1998:
‘A distinction has to be clearly drawn between the normal situation where a court sits in chambers and when a court sits in camera in the exceptional situations recognised in [Scott] or the court sits in chambers and the case falls in the categories specified in [AJA 1960 s 12(1)] (which include issues involving children, national security, secret processes and the like).’
The difficulty the court confronted (as they put it at 1071) was that the subject of what was meant by ‘private’, in chambers etc was ‘virtually free from authority’. There was nothing in case law to guide them. They, the judges, must therefore frame the law. They did so in the light of their assertion of clear principle:
‘However it remains a principle of the greatest importance that, unless there are compelling reasons for doing otherwise, which will not exist in the generality of cases, there should be public access to hearings in chambers and information available as to what occurred at such hearings. The fact that the public do not have the same right to attend hearings in chambers as those in open court and there can be in addition practical difficulties in arranging physical access does not mean that such access as is practical should not be granted.
It is clearly stated that as far as possible public should have access to chambers hearings, and to what happened at hearings – that is publicity including of judgment. This will always be subject to the exceptions in AJA 1960 s 12(1). And this statement of principle from the Court of Appeal was re-enforced by a differently constituted court in Ex parte Guardian Newspapers Ltd  1 WLR 2130, CA (judgment on 30 September 1999)
 We would add that considerations of this kind also underlay Lord Woolf MR’s earlier important judgment in [Hodgson v Imperial], in which he said (at 1071), that it remained a principle of the greatest importance that, unless there were compelling reasons for doing otherwise, there should be public access to hearings in chambers, and information available as to what occurred at such hearings.
Clibbery v Allan
So far as there was then, or is now, any distinction between the two types of proceedings, the case law so far relates to civil proceedings. Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565 saw the Court of Appeal looking at whether documents from a family hearing ‘in private’ could, even so, be passed on for publication to the press. They held that such publication was permissible. Dame Elizabeth Butler-Sloss P considered Hodgson and provided the following definition:
‘ … 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.”
 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.
Dame Elizabeth summarised a variety of circumstances where in family proceedings – then governed still by Rules of the Supreme Court 1965 and County Court Rules 1981 alongside Family Proceedings Rules 1991 – were conducted in chambers, sometimes because the rules said so, sometimes merely out of undefined habit or practice.
In Department of Economics, Policy and Development of the City of Moscow and another v Bankers Trust Co and another  EWCA Civ 314,  QB 207 the Court of Appeal – Mance LJ – provided a synthesis of their earlier decisions in Hodgson and Clibbery v Allan. The case concerned whether a judgement in an arbitration should be published where, as a result of a mistake, a summary had been published by Lawtel. The judge said no: arbitration proceedings were generally in private. The Court of Appeal allowed publication of the summary, but said the judgment as a whole should remain private.
Mance LJ referred to what Dame Elizabeth had said, seconded by Keene LJ,
‘ Keene LJ agreed with Dame Elizabeth Butler-Sloss P and endorsed (at –), “the need to scrutinise more closely than has happened in practice in the past whether a hearing in private can be justified”, adding that “in some cases, such as in some instances of applications for occupation orders, there may be little justification for the proceedings to be heard in private”. He observed that the burden of showing that such an application falls within one of the exceptions to European Convention 1950 Article 6(1) “is likely to be particularly difficult to discharge where children are not involved”.’
Scott v Scott: no absolute rule of open court
There is no absolute rule as to when a case should be heard in private or in open court: R (Pelling) v Bow County Court  EWHC 636 (Admin) QB Div Ct reminds us of that point. Subject to that and to the constrictions of s 12(1) anyone who wants to go into a private hearing or to publish a judgment from a chambers hearing is entitled to draw attention to the fact that the statute law and rules neither of them clearly say what is meant by ‘in private’.
The common law asserts – or appears to do so – that there remains a distinction between open court hearings, hearings ‘in private’ and hearings ‘in secret’. At the very least, in the absence of any court order to the contrary (the Moscow case was an arbitration, and there was a contrary order) judgements from a hearing ‘in private’ can be published.
Such as it is, attendance at private hearings and publication of judgments from chambers hearings (subject to exclusion by AJA 1960 s 12(1) and CA 1989 s 97) is what the case law seems to say; and in the 20 years since Hodgson, its comment that the law on this subject was ‘virtually free from authority’, still applies. Authority on what is ‘private’ remains sparse.