Mr Justice Mostyn: divorcing couples entitled to privacy

Divorce|September 28th 2015

Divorcing couples are entitled to privacy regarding their financial affairs, the High Court has ruled.

In a newly published judgement on the continuing financial proceedings between now divorced singers Liam Gallagher and Nicole Appleton, Mr Justice Mostyn declared:

“Information compulsorily extracted by one party from the other is subject to an implied undertaking that it will not be published or used for any purpose other than the proceedings.”

The high profile Judge had been asked to rule on this very hazy area of the law by a colleague presiding over the financial settlement proceedings which have continued since the couple officially divorced last year. They had married in 2008 after an eight year relationship and the birth of a son.

Judge O’Dwyer received an application from the parties requesting that the media be excluded from the proceedings., under Family Procedure Rule (FPR) 27.11, which governs the right of attendance at private hearings.

Mr Justice Mostyn issued an interim reporting restriction on the proceedings. Members of the press were allowed to attend but not allowed to report the details, “save that I allowed the fact that the parties were engaged in those proceedings to be made public. I also made clear that the press could photograph them arriving and leaving court.”

He received submissions from the former couple, News Group Newspapers – publisher of The Sun, and the Press Association.

Nobody who read the very same Judge’s ruling in the recent case of DL v SL will be surprised by this new ruling, which in his own words, “follows hard on [its] heels”. Mostyn’s message is clear: parties caught up in divorce proceedings are obliged to reveal confidential and highly personal information to the Judges, solicitors and barristers involved, in order to ensure that a fair settlement is reached. They are often very reluctant to do so and they entitled to privacy when they do – even their name and sells newspapers and gossip magazines. This is the “implied undertaking” to which Mostyn refers in his ruling.

In the new ruling, Mostyn is interestingly forthright about the stringent requirements of the family courts. He refers to:

“…the very fierce demands made of the parties by the process. There is an absolute duty of full frank and clear disclosure. The court exercises an inquisitorial function. The information provided by the parties is made under compulsion and extends to all aspects of their economic existence, past, present and future.”

He is equally frank about the nature of current law in this area:

“To say that the law about the ability of the press to report ancillary relief [financial settlement] proceedings which they are allowed to observe is a mess would be a serious understatement.”

The applicable law is in “a chaotic state” he insists.

However, the press has a clear ‘watchdog’ role in private hearings under FPR 27.10 and 11, he insists. They are permitted to attend such hearings, unlike the general public, but they cannot access any of the case documents.

Mostyn notes that:

“This is only consistent with a watchdog role, because without the documents the press can hardly be expected to be able to report the case intelligibly or even-handedly.”

In addition, he suggests,:

“It would have been the easiest thing to have rewritten FPR 27.10 and 11 to say that the proceedings are to be held in public, but that step, by design, was not taken.”

However, in a reflection, perhaps, of the ultimate uncertainty of the legal situation, His Lordship was more cautious when it came to the future status of the reporting restriction, ruling only that it should continue “for the time being”, until Judge O’Dwyer publishes his judgement on the particulars on the case in fact. A decision on permanency will be made on that point.

He declared:

“Most of the financial information will have been compulsorily extracted and is subject to the implied undertaking, which is the bedrock of the right to privacy, and which, as I have explained, collaterally binds the observing journalists, and where I find no good reason to release them from its effect.”

Nevertheless, he loosened some of restrictions in place, stating for example that:

“I can see no reason why the press should not be able to name not only the parties but also their partners, past and present.”

In addition, he granted News Group Newspapers permission to appeal the ruling.

It was interesting to see how often His Lordship used such phrases as “I may be wrong” or “if I am wrong” in the ruling. If even such a formidable legal brain feels a degree of doubt about the law in this complex area, then you can be sure it is indeed the mess he claims it is.

Read the ruling here.

The blog team at Stowe is a group of writers who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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