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Giggs v Giggs [2017] EWHC 822 (Fam)

Application by the Husband for an exclusion of the media order and a reporting restriction order. The Judge allowed the application and made a reporting restriction order; the application for exclusion of the media being withdrawn at this stage.

The Husband was a professional footballer. He has a number of business interests, as well as roles in football coaching and management. He has a high media profile. His marriage to his Wife came to an end last year. Financial remedy proceedings began in late 2016. The couple have two children.
The Husband made two applications:

(i) An application to exclude the media from attending future hearings within the financial remedy proceedings (an 'exclusion of the media order');

(ii) An application for a 'reporting restriction order' to restrict:

a. '…any report of this case that refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their disclosure (including any voluntary disclosure), answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally. For the avoidance of doubt 'financial information' shall include any of the matters referred to in the parties' forms E.'; and
b. any reporting of the names of the parties' two children.

At a previous hearing, Cobb J made provision for media organisations to be served with the Husband's skeleton argument in support of his applications. In the end, the application was not contested and no media representative chose to submit representations.

The Wife did not attend the hearing. The Wife's solicitors sent a letter setting out the Wife's position, namely:

(i) That she neither opposed nor actively supported the Husband's applications;

(ii) That she maintained that the application is 'unnecessary';

(iii) That she had different concerns regarding press coverage to those articulated by the Husband in his applications.

Exclusion of the media
At the hearing, Mr. Peel QC indicated that the Husband was no longer pursuing his application to exclude the media at this stage. He did not argue that the exceptions in FPR 2010 r.27.11(3) were satisfied at this hearing. Cobb J noted that in such an application, the burden would be on the Husband to satisfy the court of the need to exclude accredited members of the press (see Spencer v. Spencer [2009] 2 FLR 1416). [Para 6].

Reporting restriction order
In Paragraph 8, Cobb J reminded himself of the essential points to bear in mind when considering an application for a reporting restriction order:

(i) The parties have (qualified) rights to respect for their private and family life (Article 8 ECHR);

(ii) The parties' children have their own Article 8 rights which deserve protection;

(iii) Everyone has the right to freedom of expression, (which may be subject to some restrictions) (Article 10 ECHR);

(iv) When Article 8 and Article 10 rights both arise, the court must consider how these rights interact and/or collide. The court must exercise judgment based upon the individual facts of the case (see PJS v. News Group Newspapers Limited [2016] 2 WLR 1253, [20] and JIH v. News Group Newspapers Limited [2011] EWCA Civ 42, [21(5)]);(v) The children's Article 8 rights are likely to be affected by a breach of their parent's privacy interests, but the children also have independent privacy interests of their own. Exceptional public interest must be demonstrated by editors to override the normally paramount interests of children under 16 (see PJS v. News Group Newspapers Limited [2016] 2 WLR 1253, [72-74]);

(vi) Financial Remedy disputes are private proceedings under the definition of FPR 2010 r.27.10. As they concern inherently private matters, there is a strong 'starting point' that they should be conducted in private (see DL v. SL [2015] EWHC 2621 (Fam), [13]);

(vii) There is an implied undertaking in financial remedy proceedings that information provided under compulsion, for example under FPR 2010 r.9.14, will not be used for other purposes (see Clibbery v. Allen [2002] EWCA Civ 45);

(viii) Exceptions apply if information is already in the public domain. Or if the facts show such disgraceful conduct by one or more parties that they forfeit the right to such protection (see Lykiardopulo v. Lykiardopulo [2011] 1 FLR 1427; Wyatt v. Vince [2016] EWHC 1368 (Fam)).

Decision
Having considered the elements at (i)-(viii) above, Cobb J held that it is appropriate for the parties to receive the protection of a reporting restriction order in the terms sought by the Husband (above). [Para 10].
Any public interest in media access to that information was significantly outweighed by the rights of the parties, and their children, to privacy in the circumstances [Para 10].

Summary by Bethany Hardwick,  barrister, St John's Chambers,   Bristol.
____________________________

Neutral Citation Number: [2017] EWHC 822 (Fam)
Case No: ZC16D00117

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION


Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/02/2017


Before :

THE HONOURABLE MR JUSTICE COBB

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Between :

Ryan Giggs
 Applicant
- and - 
Stacey Giggs Respondent
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Robert Peel QC
and Petra Teacher (instructed by Kuit Steinart Levy LLP) for the Applicant (Husband)
The Respondent wife was neither present nor represented, but her solicitors (Hall Brown) submitted a letter to the Court setting out her position.
Brian Farmer (Press Association) and Ben Rossiter (Mirror Group) in attendance, and made oral representations.

Hearing dates: 17 February 2017
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Approved Judgment
I direct that no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
.............................

THE HONOURABLE MR JUSTICE COBB

This judgment was delivered in private.  
The judge has given leave for this version of the judgment to be published.


The Honourable Mr Justice Cobb: 
1. Within financial remedy proceedings ancillary to divorce, the Applicant (who I shall refer to as the "husband") makes two applications: (i) in relation to the press attendance at hearings, and (ii) reporting of these proceedings.  Those applications are, specifically:

i) An application to exclude the press ("the media") from attendance at future hearings of these proceedings ("the exclusion of the media order");

ii) An application for a reporting restriction order ("reporting restriction order") to restrict or prohibit the publication of:

"… any report of this case that refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their disclosure (including any voluntary disclosure), answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally. For the avoidance of doubt 'financial information' shall include any of the matters referred to in the parties' forms E".

This application was extended at the hearing today to include a request for a prohibition on the reporting of the names of the parties' two children.

2. The applications were issued on 19 January 2017 and brought before the court on the following day, on notice to the Respondent (hereafter the "wife") and on very short notice to various media organisations.  At that stage, I declined to make an 'exclusion of the media' order, but made an interim reporting restriction order, and adjourned determination of the applications to today, to give the media proper opportunity to attend and/or make representations.  I specifically directed the listing of these applications for a discrete hearing so that there would be clarity about reporting and press attendance before the proceedings are listed for substantive determinations.  The husband's solicitors have served media organisations with the order made on 20 January and with the Skeleton Arguments prepared for this hearing, as directed, but no media representative has chosen to submit representations (for which I made specific provision in my last order).

3. Given that the application has not in the end been contested, and I have not heard detailed argument, I can deal with the application reasonably shortly.

4. The husband was a professional footballer; he has a number of business interests, and has a role in coaching and management.  He played football nationally and internationally for many years, and has a high media profile.  He is now 43 years of age.  His marriage to the wife came to an end last year.  The husband and wife have two children. This information is well-known to the public at large.

5. Financial remedy proceedings were launched in the Central Family Court in late 2016, and were allocated to be dealt with by a High Court Judge, and assigned to me, last month.  The proceedings are at a very early stage; the parties have completed and exchanged Forms E (statements of financial information).  Unless the case settles, it is envisaged that there will be at least three or four hearings within these proceedings up to and including the final hearing.

6. Exclusion of the media Order: At this hearing, Mr. Peel QC has indicated that the husband no longer pursues the first limb of his application ([1](i) above), at least for the moment; he does not make a case at this stage that the exceptions in rule 27.11(3) are satisfied.  I had made clear to Mr. Wagstaffe QC (appearing on behalf of the husband at the 20 January hearing) that the husband would have a not insignificant difficulty in persuading me of the merits of a blanket exclusion provision, given the ordinary expectation (which I tend to follow) that duly accredited representatives of news gathering and reporting organisations should be permitted to attend financial remedy hearings: FPR 2010 rule 27.11(2)(f).  I reminded him that the burden remains on the husband to satisfy me of the need to exclude accredited members of the press: see Spencer v Spencer [2009] 2 FLR 1416.

7. That said, as Mr. Peel observes, and PD27A para.5.4 FPR 2010 makes clear, circumstances may arise during the hearings where the interests of justice require the exclusion of accredited members of the press, for instance if information is being considered about the parties' finances which includes price sensitive information.  If that or any other relevant situation arises, I will consider a renewed application.

8. Reporting Restriction Order: It is not necessary or desirable to rehearse the jurisprudence in relation to reporting restrictions.  I have approached my task today, by considering the following essential points:

i) These parties have rights (albeit qualified) under Article 8 ECHR to respect for their private and family life; 

ii) The parties' children also have Article 8 rights which are deserving of protection;

iii) Everyone has the right to freedom of expression. This right (which may be subject to restrictions) shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority under Article 10;

iv) Where the aforementioned Convention rights arise, I must consider carefully how they interact and/or collide, and exercise judgment on the individual facts of the case.  Lord Mance provides a valuable summary in PJS v News Group Newspapers Limited [2016] 2 WLR 1253 at [20] by referring 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: see e.g. In re S (A Child) (Identification: Restrictions on Publication) [2004] UKHL 47; [2005] 1 AC 593, para 17, per Lord Steyn, with whom all other members of the House agreed; McKennitt v Ash [2006] EWCA Civ 1714; [2008] QB 73, para 47, per Buxton LJ, with whom the other members of the Court agreed; and Mosley v News Group Newspapers Ltd [2008] EWHC 687 (QB), para 28, per Eady J, describing this as a "very well established" methodology.".

Lord Neuberger in JIH v News Group Newspapers Limited [2011] EWCA Civ 42 at [21(5)] earlier expressed the point in this way:

"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"

v) Specifically, in relation to the children of this couple, their Article 8 rights require careful consideration: see PJS again at [72-74]:

"… 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), any court considering whether to grant either an interim or a 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, 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 normally paramount interests of [children under 16].

This means that, at trial, the court will have to consider carefully the nature and extent of the likely harm to the children's interests which will result in the short, medium and longer terms from the publication of this information about one of their parents. … It is possible that, at trial, the evidence will not support any risk of harm to the children's interests from publication of the story in the English print and broadcasting media. It is possible that the evidence will indicate that the children can be protected from any such risk, by a combination of the efforts of their parents, teachers and others who look after them and some voluntary restraint on the part of the media.

On the other hand, it is also possible that the evidence will support a risk of harm to the children's interests from the invasion of their own and their parents' privacy, a risk from which it will be extremely difficult to protect them."

vi) Financial remedy proceedings are private proceedings not only within the strict definition of the rules (FPR 2010 rule 27.10), but also because they concern and focus on inherently private matters; there is therefore a strong "starting point" (DL v SL [2015] EWHC 2621 (Fam) at [13]) that they should be conducted in private;

vii) There is a particular reason for offering protection to the parties in relation to the disclosure of personal information in financial remedy proceedings because the disclosure rules (FPR 2010 rule 9.14) require such information to be disclosed to the other party and the court; (Appleton & Gallagher v NGN & PA [2015] EWHC 2689 at [8]); there is an implied undertaking in cases of this kind that the information provided under compulsion will not be used for other purposes (Clibbery v Allen [2002] EWCA Civ 45);

viii) Exceptions to the general rule apply if information is already in the public domain, or if the facts demonstrate such disgraceful conduct on behalf of one or more of the parties that they forfeit the right to protection (Lykiardopulo v Lykiardopulo [2011] 1 FLR 1427, Wyatt v Vince [2016] EWHC 1368 (Fam)).

9. The wife's solicitors have submitted a letter setting out their client's position on this application, as follows:

i) She does not oppose the applications, nor does she actively support them; she disassociates herself from the making of the applications;

ii) She has different concerns about press coverage of the divorce and these proceedings from those articulated by the husband;

iii) She refers to "other ways" of protecting the parties' privacy than by way of court injunctions;

iv) She maintains that the application is "unnecessary".

10. Reporting Restriction Order: Discussion and Conclusion: This couple have a significant profile in the media, both nationally and internationally. That they are divorcing, and that their financial remedy proceedings are being pursued in the English Courts, are pieces of information already in the public domain, and the publication of that information cannot legitimately be restrained by order.  However, having regard to the matters outlined in paragraph [8](i)-(viii) above I have concluded that in these circumstances and at this stage:

i) it is appropriate to proceed to deal with the application for financial remedy in private; as earlier indicated, accredited members of the press may, until or unless further order is made, attend such hearings;

ii) it is appropriate to afford the parties the protection of a reporting restriction order in respect of the disclosed financial information (more fully defined at [1(i)]) and of the names of their children.

In short, I do not consider that there is a sufficient public interest (under Article 10) in laying bare for inspection in the press the parties' financial circumstances or the plans for their financial futures; insofar as there is such a public interest in the media having access to that information, it is significantly outweighed by the rights which the parties, and their children, possess to privacy in these circumstances.

11. I therefore propose to grant the continuation of the reporting restriction order until further order.   This order will be kept conscientiously under review.  It will inevitably be finally reviewed no later than at the point at which judgment is delivered at the conclusion of the case, and/or a consent order submitted for judicial approval. 

12. That is my judgment.