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R v R & Anor [2017] EWCA Civ 1588

Appeal against the discharge of a reporting restriction order in proceedings for financial provision under Matrimonial Causes Act 1973, Part III, and the Children Act 1989.

The parties divorced in Russia in 2013. W claimed financial provision in this jurisdiction under Part III of the Matrimonial Causes Act 1973 and Schedule 1 to the Children Act 1989. At an early hearing, H had challenged the English court's jurisdiction to make an interim maintenance order. His appeal was dismissed, but the Court of Appeal published the judgment in an anonymised form pursuant to a reporting restrictions order.

At the conclusion of the financial proceedings, Mr Justice Moor refused H's application to extend the Court of Appeal's reporting restriction order and instead discharged it. The Court of Appeal granted H's application for permission to appeal the discharge.

Lord Justice McFarlane gave the only judgment of the Court of Appeal. He first dismissed H's submission that Moor J had found H's right to life under Article 2 of the ECHR were engaged; he had not and they were not [§7 to 15].

The Court of Appeal further dismissed H's argument based on s.97 of the Children Act 1989, which prohibited the publication of any material likely to identify any child as being involved in proceedings under the 1989 Act. The key authority was Clayton v Clayton [2006] EWCA Civ 878: s.97 was only available whilst proceedings remained live. In this case, Moor J made final orders, no further hearings had taken place and none were anticipated [§18].

The nub of the appeal was H's contention that Moor J failed to engage with the issues and fell into error as a matter of law, when conducting the Article 8 vs. Article 10 balancing exercise. The Court of Appeal accepted that there were deficiencies in the judgment of Moor J, as to its length and structure. However, these had to be looked at in the light of a number of forensic realities:

(i) The judgment was given ex tempore at the conclusion of the substantive proceedings [§21];

(ii) H had advanced his case on Article 2 grounds, so the judge focused on those principally [§22];

(iii) If H was asserting the judge gave inadequate reasons, "it was very much incumbent upon the appellant and those representing him to raise that issue squarely with the judge and invite him to clarify his reasons. Where no such request has been made, this court should be slow to construe any lack of clarity as indicating judicial error as opposed to a simple failure to spell matters out with precision in an ex tempore judgment given at the end of proceedings." [§23]

(iv) The transcript of the hearing, not just the judgment, revealed discussions about the approach in law and the relevant issues [§24 and 28].

Moor J had made his decision prior to the Court of Appeal's judgment in Norman v Norman [2017] EWCA Civ 120, [2017] 2 FCR 270, which considered the principles applicable to anonymisation of judgments. As it so happened, Moor J, "gave priority to the importance of the principle of open justice with respect to the Court of Appeal judgment, in a manner which was, as it turned out, entirely in line with the approach endorsed in Norman." [§25-26]

The Court of Appeal thus dismissed H's appeal. The result of this would be that any reporting of the appellant judgments would require care and caution so as to ensure that there was no reporting of issues still covered by an injunction from the first instance proceedings.

Summary by Thomas Dance, barrister, 1 King's Bench Walk
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Case No: B6/2016/3371
Neutral Citation Number: [2017] EWCA Civ 1588

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION

The Honourable Mr Justice Moor
[2016] EWHC 2073 (Fam)

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 17/10/2017


Before :

LORD JUSTICE MCFARLANE
LADY JUSTICE SHARP

And
LORD JUSTICE HICKINBOTTOM
- - - - - - - - - - - - - - - - - - - - -

R Appellant
and
R [1]
and
TIMES NEWSPAPERS LTD [2] Respondents
- - - - - - - - - - - - - - - - - - - - -

David Sherborne (instructed by Charles Russell Speechlys) for the Appellant
Adam Wolanski
(instructed by Times Newspapers Ltd) for the Second Respondent
The First Respondent did not appear and was not represented

Hearing date: 25th July 2017
- - - - - - - - - - - - - - - - - - - - -

Judgment
Lord Justice McFarlane:

1. This appeal relates to a reporting restrictions order made on 20 July 2016 by Mr Justice Moor sitting in the High Court Family Division at the conclusion of matrimonial proceedings. A married couple were divorced in Russia in 2013 but, after the English court gave her permission to, the wife claimed financial provision from the husband in England under the jurisdiction provided by the Matrimonial Causes Act 1973, Part III.

2. At an earlier stage the husband challenged the jurisdiction of the English court to make an interim maintenance order whilst he was subject to EU sanctions. His appeal was dismissed. The judgment in the appeal proceedings was published in an anonymised form pursuant to a reporting restrictions order made by this court (the 'Court of Appeal order').

3. At the final hearing of the Part III application and an application for financial provision under the Children Act 1989 ('CA 1989') in July 2016, the husband's application to extend the reporting restrictions order was dismissed. That dismissal is recorded in paragraph 14 of the order of that date ('the order'). 

4. By paragraph 19 of the order the judge below also discharged the reporting restriction order made by the Court of Appeal with effect from a date 21 days hence, unless either party applied to the Court of Appeal to continue that order and/or either party made an application for permission to appeal to the Court of Appeal against his refusal to make a fresh reporting restriction order (as recorded in paragraph 14 of the order – see paragraph 3 above).

5. Finally, by paragraph 22 of the order, the husband was granted permission to appeal the decision (recorded in paragraph 19 of the order) to discharge the Court of Appeal's reporting restriction order. In addition to hearing that appeal on 25th July 2017, this court also considered the husband's application for permission to appeal:

a) paragraph 12(b) of the order below which permitted reporting of the fact that the husband had made an application for a reporting restrictions order relating to certain specified information ('the first specified information'); and

b) paragraph 14 of the order which dismissed the husband's application for a order to restrain publication of other specified information ('the second specified information').

Although Times Newspapers Limited were given permission to appeal two aspects of the order (relating to paragraphs 11(A) and 11(b)) that appeal has not been pursued.

Publication of this judgment
6. It would not be possible in an open judgment to describe the evidence and findings of the judge without in some manner contravening the prohibition on the disclosure of information that remains in place. This open judgment is limited accordingly. A closed judgment however sets out the full reasoning of this Court.

The evidence and the judge's findings
Article 2:

7. The primary focus of the husband's case is to prevent publication of the second specified information. His evidential case in support of an injunction was first set out in an affidavit from his solicitor dated 15 June 2015 which was before the Court of Appeal when the reporting restriction order was made.

8. Prior to the final hearing of the Part III application before the judge below, the husband's solicitor provided a further statement, dated 11 February 2016, which was, effectively, in identical terms to her first statement.

9. The husband's injunction case before the judge below was pitched at a high level. and asserted that as a result of the second specified information, Article 2 of the ECHR, which protects the "right to life", was engaged. Article 2 is in the following terms:

"1. Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

a. in defence of any person from unlawful violence;

b. in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

c. in action lawfully taken for the purpose of quelling a riot or insurrection."

10. In the present appeal Mr David Sherborne, who appears for the appellant husband, cannot rely upon a positive finding by the judge that a right under Article 2 was established; he does not, however, wholly abandon the point.

11. Mr Adam Wolanski, appearing for Times Newspapers before this court, firmly submits that it is not possible to infer that the judge below found that Article 2 rights were engaged.

Article 2: Evidence and findings – Discussion
12. Having reviewed the relevant material it is very clear that there is no basis for an inference that the judge below found a right under Article 2 was established and that, in any event, there was no evidential basis which could have supported such a conclusion. The points made by Mr Wolanski are sound. The evidence in support of such a serious finding is slender in the extreme.

13. For my part, I would add an additional reason to those advanced by Mr  Wolanski in support of the conclusion that the judge did not make an Article 2 finding.. If the judge had so concluded it is inconceivable, to my mind, that he could have gone on to conduct the ordinary Article 8 and Article 10 balance and come down in favour of publication.

14. Finally on this point, it is wholly unsatisfactory for the husband to mount a case in a skeleton argument based upon an asserted inference in the judgment of a High Court judge on such a specific and important point one month earlier, without those acting for the husband first raising the issue with the judge and asking him to clarify his finding.

15. If My Lady and My Lord agree, our evaluation of the matters raised on appeal must, therefore, be conducted on the basis that the judge did not find that Article 2 rights were engaged.

Article 8 and Article 10
16. Moving away from Article 2, the husband's general case with respect to striking the balance between ECHR Article 8 and Article 10 is based upon two overriding submissions. Firstly, that the judge was in error in his approach to the balancing exercise.

17. The second overriding submission is that the judge's order is internally inconsistent.

18. The second ground of appeal is based upon Children Act 1989, s 97, which prohibits the publication of any material which is likely to identify any child as being involved in proceedings under that Act. Mr Sherborne accepts that this ground is only available if the Children Act proceedings are still live (see Clayton v Clayton [2006] EWCA Civ 878 paragraphs 48 to 52 and 102 to 104). It is convenient to deal with that point shortly at this stage. In Clayton it was plain that the CA 1989 proceedings had come to an end as both parties had consented to the discharge of all CA 1989 orders and the withdrawal of any pending proceedings. In the present case, whilst the position is not as clear cut as in Clayton, Moor J made final orders in relation to the only outstanding financial issues under the CA 1989 in July 2016. No further hearings (regarding financial matters under the CA have taken place) have taken place, none are planned and there are no outstanding applications under CA 1989 awaiting determination by the court. On that basis it is not possible, in my view, to contemplate that the CA 1989 proceedings are in some manner continuing. It must follow that the Appellant's arguments based upon CA 1989, s 97 must fall away.

19. Responding to the appeal, Mr Wolanski explained that his clients wish to publish a report of the Court of Appeal proceedings within permissible limits as ordered by the Court and no more.
Mr Wolanski submitted that if the judge's order is looked at as a whole there is no ambiguity and the position is clear.

Article 8 and Article 10: Discussion

20. At the centre of the appellant's case before this court is his assertion that the judge failed to engage with the issues and fell into error both in terms of his analysis of the relevant factors and as a matter of law.

21. Whilst the shortness and the structure of the judge's judgment on these matters makes it possible for the appellant to raise these arguments, care must be taken on appeal not to lose sight of a number of forensic realities. Firstly, the judge's determination relating to continuing reporting restrictions was made after the substantive financial issues between the parties had been determined.

22. Secondly, the primary issue raised before the judge with respect to continuing reporting restrictions was the husband's case based on Article 2. It was therefore understandably that issue upon which the judge principally focussed in his judgment.

23. Thirdly, insofar as the appellant's case is based upon the judge's failure to give adequate reasons, it was very much incumbent upon the appellant and those representing him to raise that issue squarely with the judge and invite him to clarify his reasons. Where no such request has been made, this court should be slow to construe any lack of clarity as indicating judicial error as opposed a simple failure to spell matters out with precision in an ex tempore judgment given at the end of the proceedings.

24. Fourthly, this court should, as Mr Wolanski submits, have regard to the transcript of the exchanges between counsel and the judge during the hearing prior to judgment, rather than simply considering the terms of the judgment itself.

25. In terms of the approach in law, it is right to note that Moor J's determination of the issue of naming the parties to the Court of Appeal judgment preceded this court's extensive consideration of the issue of anonymity in matrimonial financial provision proceedings on appeal in Norman v Norman [2017] EWCA Civ 49; [2017] 2 FCR 270 in which judgment was handed down in February 2017. The principal judgment in Norman was given by Gloster LJ, who, after extensive consideration of the relevant authorities, concluded that the principles and approach to anonymisation which are applicable to the Court of Appeal in general apply in like manner to cases relating to matrimonial financial provision and that it will be very rare for the court to order anonymisation in such a case. Whilst the balance under Article 8 and the right to freedom of expression under Article 10 still falls to be struck, on appeal the principle of open justice and its importance, together with the normal principle in favour of openness, will only be curtailed in exceptional circumstances [Norman paragraph 56].

26. It is plain that, in reliance upon the general approach of the Court of Appeal which was well known prior to Norman, Moor J, with admirable prescience, gave priority to the importance of the principle of open justice with respect to the Court of Appeal judgment in a manner which was, as it turned out, entirely in line with the approach endorsed in Norman. Mr Sherborne does not submit that Moor J's analysis was incompatible with that which is now required by Norman; his case is simply that, on the facts of the present case, it is not possible to afford priority to open justice to the Court of Appeal process whilst, at the same time, adhering to the judge's order.

27. Despite accepting, as I do, that Mr Sherborne can identify a basis for the appellant's case by applying a narrow focus upon the short passage in the judge's judgment relating to this issue, I am, conversely, entirely clear that the case is not sustainable if proper account is taken of the pre-judgment submissions and once allowance is made for the aspects of forensic reality that I have identified. The judge's approach properly balances the issues in favour of publication with respect to the Court of Appeal proceedings and he has achieved an overall outcome which rightly looks to cause minimum impairment to the principle of open justice with respect to those proceedings.

28. The pre-judgment submissions demonstrate that the judge was alive to the relevant issues. The appellant has not established that the judge was required to strike the balance in a more restrictive manner by continuing the Court of Appeal's order so as to prevent the publication of the second specified information. On the contrary, it is clear to me that the judge undertook a careful balance and had proper regard to the interests of open justice.

29. Further, I do not regard the order as being unclear; it is an order that strikes the balance where the judge had determined that it should be struck. The working out of the order will require care and caution on the part of Times Newspapers and anyone else who seeks to publish information from these judgments, but it is, as Mr Wolanski explained, not impossible to publish that which is permitted concerning the Court of Appeal proceedings, whilst, at the same time, ensuring that there is no separate publication of the matters which continue to be the subject of an injunction.

30. For the reasons that I have given, I would dismiss the husband's appeal against the discharge of the Court of Appeal's order and refuse his applications for permission to appeal against paragraphs 12(b) and 14 of the order of the judge below.

Lady Justice Sharp:
31. I agree.

Lord Justice Hickinbottom:
32. I also agree.