As Marilyn Stowe explained here last month, the upcoming divorce between hedge fund manager Chris Hohn and his estranged wife Jamie may lead to Britain’s biggest ever financial settlement. Naturally, the case has generated considerable interest in the media.
It was interesting, therefore, to read that Mrs Justice Roberts has permitted the media to publish details from the hearings, despite Mr Hohn apparently attempting to impose a blanket ban on reporting. Unfortunately, Mrs Justice Roberts’ judgment is not yet available so the details are sparse, but it appears that the media will be able to publish everything save for financial information relating to the couple’s personal or business affairs (which is probably what is of most interest to the media!).
So, what are the rules on the media reporting family cases concerning financial settlements? It is a little complicated (it would be nice if the rules were simplified), but the following is my understanding.
The starting-point is that hearings in financial remedy proceedings are held in private. This means that the general public have no right to be present – essentially, only judges, the parties, their legal representatives and witnesses are entitled to attend.
However, members of the press are entitled to attend provided that they are accredited. To be accredited the member of the press must be a holder of a press card issued by the UK Press Card Authority. Accredited members of the press cannot attend hearings which are conducted for the purpose of ‘judicially assisted conciliation or negotiation’ (such as Financial Dispute Resolution (‘FDR’) hearings) or hearings from which they have been expressly excluded by the court for some specific reason, for example where there appears to the court to be a significant risk that a witness will not give full or frank evidence in the presence of media representatives.
The right of the press to attend hearings does not, however, entitle them to receive or peruse court documents referred to in the course of evidence without the permission of the court.
What, then, can the press report? Well, the fact that financial remedy proceedings are held in private does not, in itself, mean that the proceedings cannot be reported. The answer depends firstly upon whether one or more statutory restrictions apply to the particular case. I will not go through all of these here (some relate to other types of family proceedings, such as the prohibition against publishing material which identifies children involved in proceedings under the Children Act), but section 12 of the Administration of Justice Act 1960 is the one that is perhaps the most important.
Section 12 prohibits the publication of information relating to certain specified types of proceedings. The specified proceedings do not include financial remedy applications. However, the court can expressly prohibit the publication of information.
Section 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 also imposes restrictions upon what can be reported in certain types of family proceedings, although whether it applies to financial remedy proceedings is debateable.
So, it would appear that financial remedy proceedings can be reported by the media unless the court has said otherwise. However, there is a further restriction, known as the ‘implied undertaking of confidentiality’. Basically, this operates to ensure that confidential information and documentation produced in court by the parties will remain confidential unless it passes into the public domain. Accordingly, it will be a breach of confidence and a contempt of court to disclose such information unless the court gives permission to do so, which appears to be what happened in the Hohn case.
These are the rules that should be borne in mind before you try to get the media involved in your financial remedies case. Of course, your case may not be quite so interesting to them as Hohn v Hohn!