On 1 November 2021, three days after the publication of the President’s Report on Transparency, Mostyn J handed down judgment in a case called BT v CU [2021] EWFC 87; [2022] 1 WLR 1349. This has turned out to be the first in a series of six judgments in which Mostyn J has rewritten the rules governing the reporting of financial remedies cases in the family courts described in Part One of this article.

He has done so on his own initiative and largely without the assistance of adversarial argument from counsel on the relevant points. Critically, Mostyn J has decided that he was wrong in what he said about the law in his earlier judgments on the topic in several key respects, including in Appleton v Gallagher [2015] EWHC 2689 (Fam); [2016] EMLR 3. The following statement in BT v CU at [105] gives the overall flavour of Mostyn J’s new position:

“I no longer hold the view that financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over the details of the case in the court’s judgment”.

The judgments in question are these:

The new principles which emerge from these judgments are as follows:

  • The fact that a hearing which is not covered by s.12 of the 1960 Act – i.e., all hearings in financial remedy cases which are not concerned with child maintenance – is heard in private has no special significance in terms of confidentiality in relation to the facts of the case. The only legal consequence of the fact it is heard in private is that members of the public who are not journalists or legal bloggers are not allowed physically to attend the hearing. Otherwise, the proceedings in terms of ‘openness’ are virtually identical to proceedings heard in open court: Gallagher at [5(ii)] & [31]. “In my judgment, the privacy of the proceedings…is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court…”: Xanthopoulos at [115]. Insofar as Mostyn J had previously determined otherwise in cases such as DL v SL [2015] EWHC 2621 (Fam); [2016] 1 WLR 1259 and Appleton v Gallagher, he was wrong: Gallagher at [33]-[34].
  • That conclusion had “the effect of completely overturning the reasoning of the Court of Appeal [in Clibbery v Allan [2002] EWCA Civ 45; [2002] Fam 261] which carved out an exception to the general rule concerning the reportability of proceedings heard in private”: Xanthopoulos at [116]. The fact that a great deal of the information that is in issue in financial remedy claims is information about the parties, their families, and their finances which is of an inherently private and confidential character and which the parties are obliged to disclose to the court under compulsion makes no difference to the analysis: Xanthopoulos at [110]; BT v CU at [104]; Gallagher at [65]. Insofar as Mostyn J had previously concluded otherwise, including as recently as in 2021 in Villiers v Villiers [2021] EWFC 23, he was wrong: Xanthopoulos at [112]. Insofar as the President’s October 2021 Report (at §16) gives a description of the relevant principles which is consistent with the account given in Section I of this article, it too is wrong in law: Xanthopoulos at [125].
  • 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 does not apply to financial remedy proceedings, only to contested hearings of the main divorce suit. Whether this view of the law is right or wrong, it is clear that the restrictions in s.1 do not apply to the court’s judgment in a financial remedy case, which can be reported in full: Gallagher at [61]. Insofar as Mostyn J had previously concluded otherwise, for example in Appleton v Gallagher at [19], he was wrong: Xanthopoulos at [129].
  • The upshot of all of this is that journalists and legal bloggers who attend financial remedy hearings which are not concerned with child maintenance are already lawfully entitled to report anything that they see and hear at such hearings, without restriction, unless the court specifically imposes a RRO derogating from open justice, whether in the form of a grant of anonymity to the parties or an order prohibiting the publication of identified information: Xanthopolous at [115]; Gallagher at [5(iv)]. In other words, on Mostyn J’s analysis, there is no need for the principal reform heralded by the President’s October 2021 Report. The onus is squarely on a party seeking a derogation from open justice to satisfy the court that such a derogation is necessary for the administration of justice and to protect his or her legitimate interests (as per CPR 39.2), a matter to be decided by carrying out the Re S balancing exercise: Gallagher at [5(vii)]. Consideration will need to be given to the question of any appropriate derogation from open justice and the possibility of the court making an interim RRO at an early stage in the proceedings before evidence has been called at a substantive hearing, for once information has gone in the public domain, it is there once and for all: XZ v YZ and Gallagher at [63].
  • The general practice that the court has adopted of anonymising the parties to financial remedy proceedings in its public judgments is not in accordance with the law: BT v CU at [113], A v M at [104]-[106], Xanthopoulos at [119]-[121] & [140], Gallagher at [5(vi)] & [81]. The general practice ought to be that the court’s judgments are published and reportable in full and without anonymisation unless some form of RRO is justified. “…[I]f very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about. The judgment should therefore name names”: Gallagher at [36].
  • Skeleton arguments should generally be made available to accredited journalists and legal bloggers attending first instance financial remedy hearings. Disputed requests by journalists or bloggers to see other documents in the case will be addressed by reference to a Re S balancing exercise. But if a document has an important role in the proceedings, it is likely to be reasonable to give the journalist / blogger sight of it: Gallagher at [57]; Xanthopoulos at [127].

Conclusions

So, where does this leave the law? In summary, in serious need of a visit to the Court of Appeal.

The linchpin of Mostyn J’s conclusions in his recent series of judgments is

(a) that the correct interpretation of Scott v Scott [1913] AC 417 is that financial remedy proceedings which are not concerned with child maintenance are and should always have been heard in public or as if in public, and

(b) that, even if this is not right, the 2009 rule change which admitted accredited journalists to hearings of financial remedy proceedings rendered them public hearings.

On this conclusion of Mostyn J’s rests his further conclusion that the implied undertaking ceases to have effect, as it does in other forms of civil litigation (see CPR 31.22), when the information supplied by the parties to the court under compulsion is deployed at a public hearing.

The main problem with the first step in Mostyn J’s reasoning – even if he is right in law (which he may well be: certainly Sir James Munby, former President of the Family Division considers he is) – is that the Court of Appeal has decided otherwise in Clibbery v Allan, a judgment by which Mostyn J as a first instance judge is bound.

Mostyn J is correct to say in Xanthopoulos at [107] that the Court of Appeal’s reasoning on the point in so far as it relates to financial remedy proceedings is obiter: Clibbery was a case under Part IV of the Family Law Act 1996 not under the Matrimonial Causes Act 1973. But this does not seem to be an adequate reason for a first instance judge to reject it. The relevant part of the Court of Appeal’s judgment is fully reasoned. There seems to be no good reason to differentiate between financial remedies proceedings and proceedings under Part IV of the Family Law Act 1996 in terms of the applicable principles. The ‘implied undertaking’ principles have been applied by lawyers and courts for over 20 years, including by Mostyn J until his recent change of heart. The Court of Appeal in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315; [2011] 1 FLR 1427 applied the principles in Clibbery in a financial remedies case.

Further, the main problem with the second step in the reasoning is that until Mostyn J held otherwise in April this year, everyone, including Mostyn J himself (e.g., in Appleton v Gallagher) and the current President of the Family Division in his October 2021 Report (at §16), had proceeded on the basis that the consequence of the 2009 rule change was not that hearings of financial remedies proceedings became public or tantamount to public hearings. For one, the post 2009 rules do not say that. For another, the public are not admitted, only accredited journalists and more recently legal bloggers.

The hallmark of a public hearing is that any member of the public can attend and report freely what he or she has seen. What happens at a private hearing in the QBD or Ch Div may in theory be freely reported, subject to a specific order of the court (which are commonly granted), but no member of the public, journalist or otherwise, is allowed in. Then, there are many of the reasons that led Mostyn J to his original conclusion, e.g., that financial remedy proceedings are concerned with information of an inherently private and confidential nature which the parties are required to disclose to the court under compulsion: see in this regard the article by Christopher Wagstaffe KC, “Privacy and Transparency in the Financial Remedies Court”, in the Financial Remedies Journal (Issue 2, 6 July 2022), who makes many persuasive points.

In short, it is at least arguable that Mostyn J was right in Appleton v Gallagher and wrong in Xanthopoulos. It is also arguable that he was wrong in both. Only the Court of Appeal can authoritatively resolve whether Mostyn J was right on either occasion or neither.

Whether Mostyn J is right or wrong, if one of one’s own financial remedy case were to be listed before Mostyn J, Mostyn J would naturally apply the law as he has held it to be in his recent series of judgments. As the judge emphatically stated in Gallagher v Gallagher at [6]:

“I intend this to be my last judgment of substance on this subject. I leave it to others to determine if I am right or wrong. Henceforth, for as long as the law stays as it is, I will decide any applications for orders for reporting restrictions and/or anonymity on their individual merits applying these principles without further jurisprudential elaboration”.

Therefore, for as long as this remains a possibility, one would have to prepare one’s case on the footing that what Mostyn J has said may represent the law. It is highly unlikely that he would be persuaded that he has got anything fundamentally wrong, although I suspect that he would grant permission to appeal if he considered that a party’s interests had been adversely affected by the changes that his Damascene conversion has brought about.

Nevertheless, it appears that not all other judges who sit in financial remedies cases in the family courts are as keen on Mostyn J’s new view of the law as he is. So much is evident from X v C [2022] EWFC 79 (12 July 2022), a judgment of HHJ Farquhar sitting in the Financial Remedies Court in Brighton.

X v C was an application for financial remedies by a wife against a husband in a case in which the available capital either just met the needs of the parties or was not sufficient to meet the needs of the parties depending upon decisions that were made in terms of the needs of each of the parties and what assets were to be considered for distribution. In other words, it was not a high profile or ‘big money’ case but a more run-of-the-mill one, but as the judge noted at [2] that, “There is…a lack of reported Financial Remedy cases other than those that involve individuals that are either wealthy or extremely wealthy and this case does not fit into such categories”.

HHJ Farquhar – who happens to be the chair of the Financial Remedies Court Transparency Group, a sub-group of the Family Transparency Implementation Group referred to in Part 1 of this article – duly addressed himself to Mostyn J’s judgments in Xanthopoulos and Gallagher in considering whether he should anonymise the parties in his judgment. He ultimately decided that he should on the ground that protecting the Art.8 rights of the parties’ child had to be prioritised and anonymity was a proportionate way of achieving that result: [118]. But in doing so he noted at [105] that Peel J, who had succeeded Mostyn J as the National Lead Judge for the Financial Remedies Court on 26 April 2022, had not applied Xanthopoulos in his judgment in VV v VV [2022] EWFC 41, which had been handed down on 13 May 2022, about a month after the judgment in Xanthopoulos was delivered. The parties in VV were accorded anonymity in Peel J’s judgment in the conventional way even though there were findings of litigation conduct by both parties. HHJ Farquhar then went on to make the following remarks at [105]-[106] & [109]:

“[105] …It is clear from recent decisions that Peel J is not alone on the High Court Bench in continuing to provide anonymity in Financial Remedy cases.

[106] This causes difficulties for District Judges and Circuit Judges upon whom judgments from High Court judges are important binding precedents. It would be inappropriate for me to set out any view of the law, but I note that I am not aware of a single reported case at any level below High Court Judge in which anonymity has not taken place, although I accept that there may be one or two cases in which this may have occurred…

[109]…there is a lack of clarity on this issue from High Court Judges. It would be difficult for myself simply to state that there are a number of High Court cases in which the parties’ anonymity has been preserved and I will follow suit when it is not a matter that appears to have been argued in those cases and there is no judgment on the point. There is a fully reasoned judgment from Mostyn J which states the opposite. I must consider this issue in light of that decision [Xanthopoulos] and the one that has followed [Gallagher], to which I must also refer.”

One can only sympathise with HHJ Farquhar and other judges sitting in financial remedy cases below High Court level. The law is in a mess. What are they meant to do? HHJ Farquhar’s instinct was to apply the conventional rules as Peel J had done in VV, but he also felt constrained to apply Mostyn J’s rules. Hopefully, HHJ Farquhar has already raised or will raise the matter with the President himself, to seek clarification.

So far as other High Court judges of coordinate jurisdiction to Mostyn J are concerned, Mostyn J himself explained the rule in Gallagher at [34]: “High Court judges are not formally bound by decisions of other High Court judges, but they should generally follow their decisions unless there is a powerful reason for not doing so: Willers v Joyce (No.2) [2016] UKSC 44; [2018] AC 843 at [9] per Lord Neuberger PSC”. So, it will be up to the other, individual High Court judges to decide individually for themselves whether there is powerful reason for not following Mostyn J’s view of the law. It might be thought that what I have said above presents a few reasons of this kind. But unless and until there is a reasoned judgment of another High Court judge explaining in terms why Xanthopoulos and Gallagher should not be followed – and VV is not such a case: Peel J simply said nothing on the topic – parties wanting anonymity or other derogations from open justice in financial remedy cases will have to prepare to argue the matter on the footing (a) that Xanthopoulos and Gallagher are the law, (b) that the status quo ante the Mostyn J sequence of judgments is the law, and possibly also (c) that Xanthopoulos and Gallagher are the law but they are wrong.

Under these circumstances, where almost nothing is certain, arbitration conducted privately may well seem like a more attractive option in high-profile or big money cases. Likewise, if Mostyn J’s view of the law – specifically his view that private and confidential information about people’s family life and finances should routinely appear in court judgments without anonymisation – comes to prevail following the implementation of the President’s transparency reforms.

Godwin Busuttil is a barrister at 5RB in London, specialising in media and communications cases. He is also a General Editor of Gatley on Libel and Slander (13th ed., Sweet & Maxwell, 2022) and a contributor to The Law of Privacy and the Media (Oxford University Press), which is about to go into its fourth edition.  Part One of this post was published on 6 October 2022