Transparency Project, Reporting Watch: Re X – a trade off between privacy and anonymity?

12 02 2017

masksbygetdownonflickr-1024x675Two judgments have recently been published by Mr Justice Bodey in a financial remedy case. The case is interesting in terms of the law around financial remedies, and from a transparency perspective.

You can read the main decision on BAILII here : X v X (application for a financial remedies order) [2016] EWHC 1995 (Fam) (26 July 2016). You can read the anonymisation judgment on BAILII here : X v X (anonymisation) [2016] EWHC 3512 (Fam) (16 December 2016).

The Marilyn Stowe blog has a comprehensive explanation of the substantive issues (trusts and special contributions and departures from equality etc), whilst this blog post focuses on the transparency angle only.

You can read the posts on Marilyn’s blog here (both by Julian Hawkshead) : A feast of legal issues: the X v X divorce (part 1) and here : X v X: special contributions and discounted share values (part 2).

Transparency

The main judgment now appears with this rubric :

IMPORTANT:
The Judge hereby gives leave for this Judgment to be reported in this anonymised format. This is on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be directly or indirectly identified by name or location, or in any other way. In particular, the anonymity of the children and the adult members of their family must be strictly preserved. Any breach of these requirements would or may be a contempt of Court and punishable accordingly.

And with the following additional note at the start : 

[This Judgment originally contained a great deal more detail which has now been deleted or made vague in the interests of anonymity].

The explanation for the editing is contained in the second “anonymization” judgment. Although, rather unhelpfully, the second judgment does not link to the first or provide the full citation, it is clear from simply cross referencing the facts (or just the case numbers) that the X v X in the first judgment and the X v X in the second are one and the same case.

In other cases of redaction of a judgment to protect the anonymity of those involved or mentioned we have seen judges use [square brackets] to flag where words have been removed. For example, a judgment might say : “the family lived in [a small town in the North East], and were of the [ethnicity]” if the combination of ethnicity and precise location would make the family immediately identifiable. In the X v X judgment the extent or nature of the redactions is not transparently flagged. It is worth noting that, whatever detail has been deleted or “made vague”, this judgment still contains a significant amount of information about the family circumstances, the children and their medical issues, the wife’s alcohol dependence, the parties’ bad behaviour, the breakdown of the relationships between the children and their mother and between the parents.

The anonymisation judgment explains that :

“On [a date in] 2016, I decided a substantial financial remedy application by a wife against a husband.”

This is an odd redaction, because from the first judgment we can easily see that the date in question is July 2016.

The media had wanted to report the case including the parties’ names. There had been prior coverage of the case in the mainstream and financial press. The husband was a very successful businessman and there was speculation about the impact of the divorce upon various investments.

The main judgment tells us that :

In March 2016 various press reports started to appear in the online media in respect of the parties’ marriage and in respect of the husband’s relationship with his now partner, a young woman who was a model. This led to some hurtful “trolling” of the husband by the wife using false names, which after initial denial she has now admitted. 

and that at the time of trial :

the financial press ha[d already] carried numerous articles already about the likely need for the husband to realise some of his stake in the Company to fund a divorce settlement

If you are still perplexed as to why the press were keen to cover this case, you can read more about the sad detail in the main judgment – there is certainly plenty of material about how the parties behaved (rather than the interesting legal features of their financial remedy dispute) that the press would most likely find interesting to the public in a gruesome sort of way (although it seems unlikely to pass any test of genuine public interest).

We noticed in November that this first judgment, with the bracketed phrase about making vague, was momentarily uploaded to BAILII, but then almost immediately removed. This may represent the point at which the press queried whether they could properly report the names of the parties and identify them as the X’s in the judgment – the judgment had already been anonymized / edited for publication, but Bodey J tells us that “the husband says his agreement to the redactions was in the expectation of anonymity”. Presumably, the press enquiries about naming led to a request to take the judgment down whilst the issue was resolved.

The judge had not permitted daily reporting of evidence pending a decision on the question of reporting at the end of hearing, although the press had been permitted to report the fact that the hearing had begun and was ongoing.

Thus, merely the fact of the commencement of the case was reported in the way which I have indicated. There were further discussions with the media present at the end of the hearing, which had taken many days, about what could then be reported. There was effectively a consensus that the press could say that the named case had concluded before me with a Judgment to follow, after which the court would determine how much of the contents of that Judgment could go into the public domain. Reports stating that the case had concluded therefore appeared, naming the parties and myself.

So, at the time of trial, whilst reporting of the detail of the hearing was limited. there was already substantial reporting of the family’s circumstances and disputes, using the adult’s names.

Ultimately the press dropped out (possibly because by this time the story was somewhat stale?), leaving Brian Farmer of the Press Association to press the case in person. The husband opposed the application whilst the wife was neutral and not represented at the anonymity hearing.

Brian Farmer argued that in light of the prior media coverage it made no sense to anonymise now. There was, he said, a risk of jigsaw identification anyway even if the judge anonymized his judgment. The judge acknowledged the force in those submissions, although ultimately did not permit naming.

The husband relied upon FPR 27.10, saying that the starting point is privacy unless there are exceptional circumstances such as dishonest litigation conduct (which didn’t apply here). He argued that the fact that financial remedy proceedings involve disclosure of private documents under compulsion gives rise to an expectation of privacy. The husband also argued that the naming of the parties would interfere with the privacy of the parties’ teenaged children, who had already been adversely affected by press coverage.

There was some evidence from the children in the form of letters, suggesting that previous press coverage had been distressing for them and that they remained anxious about these issues.

Mr Justice Bodey said :

“Unless and until a higher court says that more transparency should be afforded at the first instance in financial remedy proceedings, this outcome seems to me, on the facts of this case, to strike the appropriate balance, even though I accept it is not perfect. It is inevitable…that there will always be some people who can and will ‘join up the dots’, although that is not to imply that they can publish their conclusion.”

He also relied upon Lord Neuberger in JIH v News Group Newspapers Limited [2011] EWCA Civ 42, who had remarked that :

“there will usually be a choice as between: (a) anonymisation with the ability to give more information to enable the public better to understand the court’s processes and thinking and (b) non-anonymisation, with the provision of a much reduced amount of what would otherwise be helpful information for the public to understand the court’s workings.”

As the Marilyn Stowe blog notes, there are some important issues dealt with in the main judgment, which anonymization has allowed to be made available to the public and to lawyers, so that they can be better understood.

What can we take from this judgment?

Firstly, the decision is squarely based on the facts of this particular case, which included the particular issues relating to the children. The judge found that there was a risk of “further intrusive and distressing media interest, not only in respect of the husband but also and particularly in respect of the children”. The decision was not based on any privacy issue around the privacy of financial documents and information and disclosure under compulsion, or upon issues of commercial sensitivity. We might characterise it as as based upon personal as opposed to financial privacy.

Secondly, the judge draws an important distinction between steps that prevent some people from working out who the family are (if they can be bothered to do the leg work) and steps that prevent the parties from publishing what they have found out. The judge pragmatically took the view that he could not (or should not try) to prevent the former, but that his order ought to ensure that the latter was not permitted. The question of privacy is not all or nothing, just as the right to free speech is not all or nothing. The press were permitted to report the case with the limited restriction on the parties names.

We haven’t carried out the exercise of trying to work out who the family are, but from the information which the judge has agreed to publish, particularly that in the first judgment, it seems likely that as the judge acknowledged, it would be pretty easy to work it out if we wanted to (and one suspects that anyone who had read the reports at the time would immediately know who the family were). But we could not publish their identity or link the reports together without breaching the rubric and committing a contempt of court. Although the first judgment does contain a clear rubric preventing identification of the family, we do wonder whether the first judgment should link to the second judgment so that those who might inadvertently make the link in online discussion can see very clearly that they must not do so. It is spelt out far more clearly in the second judgment.

Anonymity would “protect the public’s right to know the processes and computations which led to my financial remedy order and how the various arguments deployed by Counsel (pre-marriage contribution, post-separation endeavour, sharing/needs etc etc) are dealt with, including enough information to make these processes understandable; but without identifying the husband (or wife) or his partner or the children.”

This post originally appeared on the Transparency Project blog and is reproduced with permission and thanks

Feature Pic : masks courtesy of Get Down on Flickr – thanks!


Actions

Information

2 responses

12 02 2017
Transparency Project Reporting Watch Re X a trade off between privacy and anonymity - Real Media - The News You Don't See

[…] Two judgments have recently been published by Mr Justice Bodey in a financial remedy case. The case is interesting in terms of the law around financial remedies, and from a transparency perspective. You can read the main decision on BAILII here : X v X (application for a financial remedies order) [2016] EWHC 1995 (Fam) (26 […] Inforrm’s Blog […]

12 02 2017
daveyone1

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s




%d bloggers like this: