Publicity v privacy in financial remedy cases

Family Law|September 21st 2015

The judgment of Mr Justice Mostyn in DL v SL, published last week, has re-ignited the long-running debate regarding the issue of publicity in private family proceedings, specifically financial remedy proceedings following divorce. For what it’s worth, I thought I would add a (very) few thoughts of my own to that debate.

I have, of course, already mentioned DL v SL here, albeit in a different context. Very briefly, it was, as Mr Justice Mostyn himself said, an unremarkable financial remedies case, but the issue of the reporting of the case by the media arose, and fell to Mr Justice Mostyn for determination. He made an order prohibiting the media from publishing any report of the case that identified any person involved in the case other than the lawyers, or referring to any of the parties’ financial information, whether of a personal or business nature, save to the extent that any such information was already in the public domain.

The essential question in all of this is surely: what is the publicity for? One can imagine the reasons why a representative of the media might wish to publish details of a financial remedies case. The particular circumstances that spring to mind are that the parties in the case (or one of them) are celebrities, that the case involves assets of fantastic value or that there is some particularly sordid element to the case. However, all of those things surely amount to little more than voyeurism, which is certainly not what the public reporting of financial remedies cases should be about.

Mr Justice Mostyn began his judgment with his own explanation:

“It is my opinion that the law concerning the presence of the media in these private proceedings … is to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them.”

In other words, publicity is to ensure fairness and to educate the public about the operation of the court in very general terms, but without intruding upon the privacy of the parties, hence the restrictions that he imposed upon the reporting of the case.

However, as Mr Justice Mostyn pointed out in the course of his judgment, there are others within the judiciary, particularly Mr Justice Holman, who do not see the need for such restrictions. Mr Justice Holman requires financial remedies cases listed before him to be conducted in open court – i.e. in public, with no reporting restrictions. Whilst this is obviously the ‘ultimate’ solution to the issue of transparency, it does of course give the voyeurs carte blanche to use the case for whatever headline-grabbing purpose they wish, with little or no regard for such niceties as fairness or education.

Mr Justice Holman’s approach has the effect of saying to the parties: ‘resolve this out of court or face having all of your dirty linen washed in public’. I have to say that I am a little uneasy with such a ‘threat’, even if it is somewhat an empty threat for the vast majority of divorcing couples, whose affairs will be of no interest whatsoever to the good members of the fourth estate. Like it or not, parties do have a right to have their cases adjudicated by the court, and they shouldn’t be discouraged by such judicial blackmail.

On the other hand, I wonder just how useful it is to report financial remedy cases without disclosing details of the finances of the parties. How can the public judge fairness or gain any understanding without such information?

On that subject, I don’t agree with parties ‘buying’ privacy because they consider that their financial arrangements and connections are too important to be disclosed to the general public, as occurs in those cases where parties seek reporting restrictions to protect businesses with which they are connected. How many businesses are so frail that they will suffer significantly by being mentioned in a divorce case? Very few, I suspect. Just because a lot of money may be involved, that should not buy a ticket to privacy – if there are reasons why details of a case should be published, they should be published.

In general terms, the goals of fairness and education seem good ones to me, so I find myself sort of in the Mostyn camp, albeit with reservations. Whatever your views, I suspect that the debate will continue to run and run, at least until some clear direction is received from above.

The full report in DL v SL can be read here.

The founder of Stowe Family Law, Marilyn Stowe is one of Britain’s best known divorce lawyers. She retired from Stowe Family Law in 2017.

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Comment(1)

  1. Andrew says:

    Or of course we could impose the yardstick of equality in every case where the parties had not agreed a cast-iron prenup – and allow arbitration in the rare case where that did not settle the matter – with Calderbank brought back to encourage realism and common sense!

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