In a recently published case, High Court judge Mr Justice Mostyn used the occasion of a complex land trust dispute to promote the benefits of arbitration. I was delighted to see this endorsement at such high levels.
At a Family Division hearing, the judge was asked to rule on an application that proceedings launched under the Trusts of Land and Appointment of Trustees Act 1996 (TOLATA) should be anonymised, both in the hearing itself and the final judgement.
In the case of W v M, the TOLATA proceedings concerned two high value properties inSurrey. The defendant in the action applied for anonymity under the Civil Procedure Rules (CPR), claiming that his relationship with his partner and her health were threatened by the risk of publicity about the case. He also said an important witness in the case – referred to as ‘B’ – might refuse to participate if they thought there was a risk of a previous conviction coming to light.
The defendant concluded:
“I accordingly ask for an order in a form that protects my children and A [the mother of three of his children] from the threats to their health, well-being and family life I have identified above. In particular I seek an order that my own surname and my children’s surname in its full and shortened form, using either their mother’s or my own surname only, are anonymised as are the identities of all three of my properties, as they would readily be connected to A and my children now or in the near future.”
The plaintiff, referred to in the case documents as C, opposed the application, saying the case hung on the credibility of the witnesses. Mr Justice Mostyn noted in his judgement:
“The case began in 2010 and she could at any time have gone to the press if she wanted to see D pilloried, but she has not. The reason why she wants the case heard in the fullest way is that this is a case which will turn on which witnesses are believed. Each party asserts the other is a liar. Such hearings are especially well suited to being heard in public where ‘daylight is disinfectant’ and the lying witness need fear exposure more than the truthful one.”
The judge carefully considered the complexities of the case. He analysed the ways in which the TOLATA and CPR relate to each other and noted that under the latter, hearings should be held in public unless there was a “good reason” not to do so.
Mr Justice Mostyn concluded that anonymising the procedures would not prevent responsible reporting of an “area of law which is controversial” and he thought it unlikely the defendant’s children would suffer any notable adverse consequences from the case being held in the open. The judge also thought it “highly implausible” that B’s evidence would be compromised by open proceedings.
He therefore refused the application, saying:
“Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed.”
As regular readers of this blog will know, I am an arbitrator and qualified to deal with arbitration. It certainly does have benefits such as privacy and it can make a significant difference in the right circumstances, so it is very gratifying to see such a senior judge endorsing the principle.
The case of W v M did not end there. Earlier this month, the plaintiff and defendant reached a settlement on the main part of the dispute. As part of this agreement, the plaintiff agreed to support the defendant in a fresh application to anonymise the proceedings. This time the judge agreed, saying that since a settlement had now been reached, the need for an open hearing to encourage truthfulness had diminished.