In the divorce case of Lady Hiroko Barclay and Sir Frederick Barclay the judgment was delivered in private.
However, the judge gave leave for a limited judgment to be published. Why?
The judgment relates to the final hearing in March 2021 of the application by Lady Barclay for financial remedy orders against her husband Sir Frederick Barclay. Mr Justice Cohen handed down judgment on 30 March 2021.
The proceedings were heard in private in accordance with the Family Procedure Rules and were attended by a number of accredited media representatives as provided for in the rules. The judge imposed a reporting restriction order, and as is the normal practice, he allowed publication of the fact that the hearing was taking place and that the parties could be identified.
Often the media will be prevented from publishing any reports on cases where there is a reference to or concerns that either of the parties’ financial information, whether of a personal or business nature, may be placed in the public domain. The Judge in this case was working to a very tight timetable and felt that if he allowed arguments on whether or not information was in fact ‘the parties’ financial information’ this would have meant that the case over ran the time estimate significantly.
On this basis the Judge said that there should be no publication of the hearing at all beyond the identity of the parties and their legal representatives.
The result is that a limited judgment has been published in which it is set out what the husband argued in relation to his rights to privacy. The legal representatives acting on behalf of the husband argued as follows:
- The correct starting point is privacy. Divorce and related financial proceedings are highly personal and there should be no publication of any part of them.
- Any publication at all, even if anonymised and redacted would inevitably lead to identification. This would be inevitable by virtue of the husband’s business interests which are widely known.
- The husband is not a public figure and has never courted publicity.
- Although there are criticisms made of the husband there is no suggestion that there has been a perjury or very serious litigation misconduct.
- There were genuine concerns for other members of the family who were not party to the proceedings but may be affected by wider publication.
- There are aspects of the judgment which are highly personal, in particular matters relating to the husband’s health.
Lady Barclay argued that the judgment should be published because whilst her husband may wish to maintain his privacy, she wished to exercise her right of freedom of speech. She said that neither right trumped the other, but that she didn’t want to be silenced about the way that her husband had behaved before and during the litigation. Lady Barclay felt that the public had a right to know how her husband had behaved and that such behaviour had meant that his right to privacy had been removed. The media were also involved in this hearing, obviously wishing to be able to publish details of the judgment, and their argument was that the whole of the judgment should be published so that the public could understand how the court had reached its conclusion on the division of the assets and finances generally. Further parties to the hearing on privacy were the husband’s nephews who were concerned that publicity may affect their financial affairs. They had not seen the judgment but were concerned about privacy generally. The case law relating to this is worth summarising as follows:
In 2018, in the case of XW v XH, the Judge said that ‘open justice is a fundamental principle of our constitution. The general rule is that hearings are carried out, and judgments delivered, in public.’
‘There are, however, established exceptions to this general rule. Amongst those exceptions are proceedings in the Family Court. Such proceedings, including those concerning applications for financial remedy orders, are usually conducted in private: Family Procedure Rules, rule 27.10.
The mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings….
In financial remedy proceedings, however there is an obligation on the litigants to give full and frank disclosure of all relevant matters. The quid pro quo of this obligation is the confidentiality which attaches to all information disclosed within the proceedings. The party receiving the confidential information is subject to an implied undertaking not to use it for any purpose other than within the proceedings in which the information has been disclosed.
Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless authorised by the Judge. Deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings, and, if so, on what terms, the court has to balance the conflicting rights and interests under the European Court of Human Rights….’
One can draw a distinction between what is said in the hearing which is private and the privacy of the judgment itself. Judgments which consider points of law and practice have generally been released in law reports. In cases where there is a public interest in the publication of the judgment which explains an aspect of the law or practice the Judge will usually give permission for it to be reported. Sometimes there is anonymisation or redaction of confidential material.
In cases where one of the parties has misbehaved a Judge may authorise publication without any redaction, sometimes the court may authorise publication of the fact that certain named parties are engaged in litigation but prevent publication of any information relating to the proceedings.
In a lot of cases the parties’ confidentiality can be protected by publishing judgments in an anonymised and redacted form but there are some cases where the facts may be so unique that this is not possible.
In financial remedy proceedings connected to a divorce the starting point is privacy. This is because the parties are obliged by the rules of the court to provide full and frank disclosure of all relevant financial matters and also because the reasons for the breakdown of a relationship and its consequences are very personal matters.
There is no corresponding public benefit to acquire this knowledge.
On the other hand, it can be argued that what happens in Family courts is a matter of public concern and that open justice is extremely important. So, there is clearly tension between these two ideals and this is normally overcome by publication of an anonymised judgment. The options available to a Judge appear to be the following:
- Publication of a judgment in full;
- A direction that there be no publication at all;
- Publication with anonymisation;
- Publication with redaction; and
- Publication of a summary of the judgment.
In some high-profile cases anonymisation or redaction simply can’t protect the parties. An example of this would be the divorce of Paul McCartney and Heather Mills. In the Barclays’ case the main argument between husband and wife was the extent to which the husband’s conduct had deprived him of the right to confidentiality.
In this case the husband was criticised for his behaviour in relation to ignoring orders and failing to produce documents or answering questions. He also ignored an order controlling the sale and the use of the proceeds of sale of his luxury yacht. Sir Frederick sold the yacht and used the money himself. The Judge regarded that behaviour as reprehensible.
The Judge reached the conclusion, after balancing the right of privacy and the right of freedom of expression against one another, that he would not permit the publication of his substantive judgment. The reporting restriction order would remain in place.
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The above is accurate as at 10 May 2021. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.