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X v X [2016] EWHC 3512 (Fam)

Judgment by Bodey J in favour of anonymising a judgment he had previously handed down in a financial remedy application.

The husband in the case was a wealthy businessman who, until the divorce, had not had a particularly high profile or widespread 'celebrity' status. However, the financial remedy proceedings in the High Court had attracted a degree of media attention that was novel to the family. The media interest was focused upon the magnitude of the husband's wealth and speculation that he may have to sell part of his shareholding to fund the wife's award, but it spread to personal matters including the husband's relationship with a new partner. The parties had been photographed entering and leaving the High Court for hearings, which the press had attended, and the names of the parties, their lawyers and the judge had been widely reported in the press.

At the conclusion of the financial remedy proceedings, Bodey J made available for publication an anonymised judgment under the reported name 'X v X'. Information private to the parties and their children included in the judgment was redacted from the published report. Subsequently, the media ("responsibly" per Bodey J) sought clarification as to whether its bodies were permitted to report on the outcome of the case, specifically with reference to the parties' names or other identifying details.

The case in favour of publication was first advanced by a national newspaper; later by the Press Association. It was opposed by the husband. The wife took a neutral stance and was not represented at the hearing of this singular issue.

Bodey J considered the authorities. He observed that, as in all such cases, Article 8 (the right to respect for private and family life) and Article 10 (freedom of expression) were engaged. The court is required to undertake a balancing exercise between "…competing rights [which] pull strongly in opposite directions. Clearly every case is utterly fact specific". (para 20). On considering the facts of this case, in particular the nature of the information contained in the judgment, the previously (relatively) low public profile of the parties and the effect of press intrusion on the husband and the children of the family, Bodey J decided in favour of the husband's request for anonymisation to be preserved. Upon this being determined, the husband confirmed that he would not seek a reporting restriction order; clarification having been sought and obtained, the husband was content to rely on the 'good sense and responsibility' of the media to uphold the court's ruling.

Summary by Charlotte Hartley, barrister, 1 King's Bench Walk

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Neutral Citation Number: [2016] EWHC 3512 (Fam)

Case No: FD14D00382
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL

Date: 16th December 2016

Before :

Mr Justice Bodey
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Between :

 X Applicant
 - and - 
 X Respondent

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Mr David Sherborne for the Respondent Husband
The Applicant Wife did not appear and was not represented.
Mr Brian Farmer as an interested party advanced arguments from the perspective of the media.
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Hearing date: 14th December 2016
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JUDGMENT (ANONYMISED)
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.

MR JUSTICE BODEY

Introductory
1. This Judgment concerns an issue about the anonymisation, or not, of a financial remedy Judgment.  It arises in this way.  On [a date in] 2016, I decided a substantial financial remedy application by a wife against a husband.  The judgment gave a good deal of information private to the parties and it visited some areas of their and their children's private and family lives which anyone unlucky enough to have to litigate would prefer not to see in the public domain.  Given the current drive towards greater transparency in the family justice system, and to enable the judgment to be publicised, it was therefore subsequently edited and redacted by the parties (with some aspects of disagreement being resolved by me), and was made available for publication entitled "X v X".  The media would, however, like to be able to report the case giving the names of the parties, and have therefore responsibly asked for clarification as to whether they are permitted to do so.

2. Since the husband indicated through his solicitors that he is strongly opposed to this, I set up a short directions hearing towards the end of November 2016.  It was attended by specialist media Counsel for one particular national newspaper ("Z News Limited"), and by the solicitor advocate for the husband.  The wife was not represented, as her solicitors have said that she is neutral on the question of the anonymity of the Judgment and she has played no part in the argument.

3. It was sensibly agreed at the directions hearing that, as the issue was perfectly clear (ie anonymisation or not?) neither side need make a formal application: whether the media to be permitted to make references to the family name, or the husband to restrain such references.  I directed that I would hear the parties' arguments at a hearing on 14 December 2016, the day before yesterday, which I did.  Following the directions hearing, Z News Limited contacted the court through its legal department to say that it no longer wished to be heard on the issue concerned, and would not therefore be instructing counsel nor attending at the hearing on the 14th.

4. Therefore that hearing proceeded with Mr David Sherborne of counsel representing the husband and Mr Brian Farmer, court reporter of the Press Association (and a familiar and trusted figure in the Family Division) putting forward the media's case.  I am told that the Alerts Service of the Press Association (otherwise Copy Direct) was notified of the hearing, but Mr Farmer does not represent them and they were not represented in any formal sense by counsel or a solicitor advocate.  That said, Mr Farmer put across the media's position and point of view with charm and cogency.

Brief background
5.   Before the main hearing earlier this year, there was quite considerable media coverage of the couple's pending financial remedy hearing.  This was both in the general media and in the financial press.  It was of interest in the latter dimension because the husband was an extremely successful businessman [details of the company and the husband's role in it given].  There was press speculation as to the possibility of his having to sell parts of his shareholding in the company in order to meet what was again speculated might be a huge award.

There was further media coverage of a relationship which the husband had formed and now has with a younger woman and which led to various photographs appearing in the papers and online, with narrative which gave a certain amount of personal and business information.  Much, but by no means all, of that detail was in the public domain.  There was also social media chatter involving their marital breakdown.

6. In the result there was considerable media interest in the couple's financial remedy hearing before me, and they were both photographed, quite properly, arriving at and leaving the High Court.  When the case was due to start, Mr Farmer and a reporter from Z News Limited were in attendance in court, as they were entitled to be under Family Procedure Rules, rule 27.11(2)(f), being 'duly accredited representatives of news gathering and reporting organisations'.  Understandably, no application was made under rule 27.11(3) for them to be asked to leave the court.  Although the couple have teenage children, it could not seriously have been said that it was "necessary" in their interests to exclude the media from the hearing, when the subject matter and focus of the hearing was clearly going to be on their parents' finances.

7. In the event, it was agreed between the two representatives of the media present and Leading Counsel for both the husband and the wife respectively, that the press could report that the financial remedy case had started (naming the parties) before myself (as the named judge).  But I indicated and the media accepted, following Mrs Justice Roberts' approach in Cooper-Hohn v Hohn [2015] 1 FLR19, that there should be no daily reporting of the evidence.  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.

The Arguments
8. Against that background, the arguments, in summary, are these.  Mr Farmer says that allowing anonymity to the Judgment at this stage just does not make sense.  The public know that there has been a case heard before me about this identified couple and will want to know the outcome of it.  Otherwise, they will think it is 'very strange' and will wonder what has happened to the case.  He compared it with seeing in the media that a particular football match was due to be played on a Saturday afternoon and then not being able to find out who had won.  He suggested that the public should not be left thinking that a case can 'fall into a black hole', as this would not be a good reflection on family justice.

9. Alternatively, and in any event, Mr Farmer says that if the case is reported anonymously, ie as ("X v X") then there is ample opportunity for 'jigsaw' identification, given that the names and photographs of the parties and the name of the judge have been reported.  So why not let the case be reported with the family name? 

10. Mr Sherborne submits that, under Family Procedure Rule 27.10, financial remedy cases are held in the private, at least by the overwhelming majority of the judges of the Division.  Privacy is generally preserved for such cases, unless exceptional circumstances apply.  Such circumstances include where a party has forfeited his or her right to privacy, for example by dishonest litigation conduct, as in Lykiardopoulou [2011] 1 FLR 1427; or where the parties are of such celebrity status that anonymisation is wholly unrealistic (as in McCartney v Mills McCartney [2008] 1 FLR 1508); or where publication is desirable to correct inaccurate widespread prior reporting, as in Blunkett v Quinn [2005] 1 FLR 648.  In support of this submission for privacy, Mr Sherborne relies on a number of first instance decisions by judges of the Division, including L v L [2016] 1 WLR 1259 (Mostyn J) and Appleton v Gallagher [2015] EWHC 2689 (Fam) (Mostyn J); and I would add Cooper-Hohn (Roberts J - above) and Wyatt v Vince [2016] EWHC 1368 Fam (Cobb J).

11. Those cases explain the rationale behind the importance generally (although not unanimously) attached to privacy in these financial proceedings, namely the fact as recognised in Lykiardopoulou (above) that information which would otherwise be private has to be disclosed to the court under compulsion.  Hence it attracts an implied undertaking by those who become possessed of it that it will not be disclosed outside the court process/arena.  Public policy requires, it is argued, that litigants are not discouraged from the 'full and frank disclosure' approach required in family remedy litigation by the anxiety that private information so disclosed may later be made available for public consumption.

12. Here, Mr Sherborne submits that none of the above exceptions applies.  These parties are not 'celebrities' in any way and have never been subjected to 'wall to wall' publicity in the way that many film stars, pop stars, celebrity chefs, famous sportsmen and others are.  He points to the husband's short statement on the issue of anonymisation, where he (the husband) describes himself as not being one who has courted public interest or acclaim, being just a hard-working and successful businessman.  Mr Farmer himself told me that he had not heard of this husband until this case came on to his radar.  I imagine that the same would apply to most people in this country (outside of those who read the financial press or who are interested in business matters), unless and until his name were to be connected to the well known company.  Nor is there any question here of reprehensible litigation conduct; nor on any view is so much information already in the public domain that there is 'nothing left to protect'.  Therefore, says Mr Sherborne, the normal starting point of respect for privacy as applied by the overwhelming majority of the Judges of the Division should also be the finishing point. 

13. Mr Sherborne emphasises moreover that the right to respect for private and family life is not restricted to the issue of the provision of information into the public domain.  It includes, he says the question of intrusion and harassment causative of distress, not only to the adult parties caught up in the litigation, but also in appropriate cases to their children.  They too have Article 8 rights.  In this respect he refers me to ETK v News Group Newspapers [2011] EWCA Civ 439 (CA) per Ward LJ at paragraphs 18 to 22 and to the recent Supreme Court case of PJS v News Group Newspapers Limited [2016] 2 WLR 1253.

14. In the former case of ETK, after citing authority suggesting that the rights of children may have primacy, Ward LJ said at paragraph 19:

"…However, this learning must, with respect, be read and understood in the context in which it is sought to be applied.  It is clear that the interests of children do not automatically take precedence over the Convention rights of others.  It is clear also that in a case such as this, where the court is deciding where the balance lies between the Article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests.  Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike.  The force of the public interest will be highly material and the interests of affected children cannot be treated as a trump card."

15. This "trump card" point was taken up in the PJS case, where Baroness Hale (with whom Lord Neuberger, Lord Mance and Lord Reed agreed) said:

"I wish only to add a few words about the interests of the two children whom PJS has with YMA.  It is simply not good enough to dismiss the interests of any children who are likely to be affected by the publication of private information about their parents with the bland statement that 'these cannot be a trump card'.  Of course they cannot always rule the day, but they deserve closer attention than they have so far received in this case, for two main reasons.  First, not only are the children's interests likely to be affected by a breach of the privacy interests of their parents, but the children have independent privacy interests of their own.  They also have a right to respect for their family life with their parents.  Secondly, by section 12(4)(b) [of the Human Rights Act 1998] any court considering whether to grant either an interim or permanent injunction has to have 'particular regard' to 'any relevant privacy code'.  It is not disputed that the IPSO code which came into force in January 2016 is a relevant code for this purpose.  This, as Lord Mance has explained, provides that 'editors must demonstrate an exceptional public interest to over-ride the normal paramount interests of [children under 16]'".

16. It was in the same case of PJS that Lord Neuberger highlighted the distinction between the confidentiality aspect of a right to respect of privacy and the intrusion/distress aspect of that right.  He made the point at paragraphs 53 and 57 to 62 that PJS's case on confidentiality would have had very much an uphill struggle (because PJS's identity had been widely disclosed), but that PJS's rights and the rights of his two children not to have to suffer intrusive media interest had survived and indeed were rights to which the Court of Appeal had there given insufficient weight.

17. A further example, on unusual facts, of the court's willingness to protect the privacy interests of children where necessary is to be found in K v L (non-matrimonial property: special contributions) [2012] 1 WLR 306.  There, Wilson LJ as he then was prayed in aid the children's Article 8 rights so as to protect them from identification via the naming of their parents, who were parties to a financial appeal by the husband in the Court of Appeal.

18. In this connection (intrusiveness and children's rights) Mr Sherborne refers me again specifically to the husband's statement, which I have already mentioned.  There, the husband says:

"The media intrusion and attention [before the hearing] was very difficult and disruptive for my family.  I first discovered something was happening when members of the press were found in my neighbour's gardens at the former matrimonial home.  They then proceeded to break through the security barrier to the private road of our temporary home and, pretending they had a meeting with me, tried to gain access to it.  They also trespassed into the matrimonial home [when it was not occupied] to take a look and presumably photographs. For reasons I can only speculate on, a photographer hid outside the former matrimonial home to photograph my partner and me when we visited." 

The husband continues: 

"I became distressed and paranoid about the intrusion into our lives at the time and found myself checking the [newspaper stated] app, on my phone every ten minutes.  It affected my sleeping, and I was even checking it through the night.  More importantly, my children were very badly affected.  They are of an age where they read media reports on their computers.  They are acutely aware that their friends and peers and friends' and peers' parents, teachers and school staff all see these reports.  This is a matter of considerable embarrassment for them.  Some individuals would even approach them and want to discuss it with them, causing further humiliation and distress ... as a result, the children became anxious about leaving the home ... their results at school that term suffered.  [Other information given about the impact on one of the children]".

Last the father's statement says:

" ... preserving the anonymity of this judgment is important to allow us all, and principally the children, to move on from the divorce.  They have already been through so much ... the divorce process itself and the publicity we have endured.  I am very worried about what they will suffer from the media circus that would accompany the judgment being linked to our family."

19. The father attaches to his statement letters to me from the children.  Even allowing for an element of hyperbole, given that the children are likely to have become allied to the husband's strong feelings and point of view (since he cares for them, assisted by staff) the letters show that they have felt embarrassed and upset by the media coverage prior to the main hearing.  One of the children's letters speaks of judgmental remarks being made to him by his peers, and of journalists trying to get into the family home.  Another speaks of being afraid to leave the house because of journalists waiting at the end of the road.  [Further information given about the impact of press reports on the children].  One speaks of not wanting to leave the house because  "...people were trying to take photographs and ask us questions".  Children clearly have to accept a lot of what is thrust on them by the behaviours of their parents: it is as always a question of fact and degree.

Striking the balance
20. As in all these cases, Article 8 (the right to respect for private and family life) and Article 10 (freedom of expression, read alongside section 12(4) of the Human Rights Act 1998) are well and truly engaged here.  The balance as between (i) the strong importance of the public knowing through the media what is done in its name and (ii) the rights set out in Article 8, is often as here a difficult one to strike.  The competing rights pull strongly in opposite directions.  Clearly every case is utterly fact specific. 

21. The way to perform the necessary balancing exercise has been recently reiterated by Lord Mance at paragraph 20 of PJS (above) where, restating Lord Steyn's analysis in Re S (A child: identification: restrictions on publication), [2004] UK HL47 at paragraph 17, he referred to:

" ... authority at the highest level which establishes that even at the interlocutory stage (i) neither Article has preference over the other, (ii) where their values are in conflict, what is necessary is an intense focus on the comparative importance of the rights being claimed in the individual case, (iii) the justifications for interfering with or restricting each right must be taken into account and (iv) the proportionality test must be applied." 

That proportionality test was described by Lord Steyn in Re S as the 'ultimate balancing test'.

22. I am also assisted in this respect by Mr Sherborne's reference to the summary at paragraph 21 of JIH v News Group Newspapers Limited [2011] EWCA Civ 42, where Lord Neuberger said at paragraph 21(5):

"Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life."

There Lord Neuberger 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.

23. I accept the force of Mr Farmer's points.  It may well seem 'strange' that a case is reported as starting and finishing but that no 'de-anonymised' report ever appears of the outcome.  Mr Sherborne characterised this as 'mere public curiosity', which he submits can never outweigh solid Article 8 rights.  Further, I have to weigh against the media's case all the equally forceful points set out above in respect of (a) the privacy of much of the information remaining in the judgment, even as redacted (because the husband says his agreement to the redactions was in the expectation of anonymity) and (b) the risk, as I find exists, of further intrusive and distressing media interest, not only in respect of the husband but also and particularly in respect of the children.  I am well aware from having tried the main case that they, the children, have been through an exceptionally difficult and upsetting time.  Mr Farmer says that he would never wish to distress anyone, let alone children, and I unhesitatingly accept that.  But the husband's statement shows that not all in search of a story behave as responsibly as Mr Farmer. 

24. Performing the necessary exercise as per Re S and PJS and asking myself the question in JIH at paragraph 22 above, I have come to the conclusion that the balance comes down firmly in favour of the present anonymity ("X v X") being maintained.  This will protect the public's right to know the processes and computations which lead 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.  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, to use Mr Sherborne's metaphor, 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.

Conclusion
My decision on the issue before me is therefore that the judgment may be reported anonymously, but not naming the parties nor directly or indirectly connecting them in any way to the financial remedy case tried by me.  On instructions Mr Sherborne is content not to seek a Reporting Restriction Order, relying on the good sense and responsibility of the media to comply with the rubric which we discussed and which is now to be found at the top of this Judgment.