Will the details of my financial remedy proceeding be made public?

Divorce|July 11th 2018

It’s a common concern of litigants involved in financial remedy proceedings: are the details of my case going to be made public? There are many reasons why litigants are concerned about their cases being made public, but perhaps the most common are worries about the effect of publication upon a child, the revealing of details of a business that may be detrimental to that business, and simply the desire to keep personal family matters private.

Obviously, most financial remedy cases are unlikely to attract much media attention. Generally, the only ones that are likely to do so are those involving celebrities, well-known businesses, a matter of public interest, or particularly unusual or salacious facts. However, even if it does not fall into such a category, if your case goes to a final hearing, the judgment may still be published, for example on the Bailii website.

It may not then attract much attention beyond the legal profession, but it may still be found by anyone taking an interest in your affairs, or the affairs of your business.

A recent case set out a very handy summary of the principles in relation to restrictions on reporting cases and the publication of judgments in matrimonial financial remedy proceedings. XW v XH concerned a big-money financial remedy dispute. The case was heard by Mr Justice Baker over some ten days in June last year, although he did not hand down his judgment until December. There then followed a further judgment, only handed down last month, dealing with subsequent applications by both parties for a reporting restrictions order, precluding publication of information relating to the proceedings. This post is concerned with that later judgment.

The parties to the case were married in 2008. Neither is a public figure, although the husband is a successful businessman whose products are said to be “widely used by many people across the world.” The couple have one child, who sadly has a rare, life-threatening condition and also has significant disabilities. The marriage broke down in 2015 and the wife commenced divorce proceedings. The subsequent financial remedy proceedings mentioned above were heard in private.

Mr Justice Baker set out ten principles in relation to the reporting restrictions applications, as follows:

1. The general rule is that hearings are carried out, and judgments delivered, in public.

2. Proceedings in the family court, including financial remedies applications, are an exception to this general rule and are therefore usually heard in private.

3. However, the mere fact that proceedings are heard in private does not of itself prohibit publication of what happens in those proceedings.

4. In financial remedy proceedings, the parties are required to make full disclosure of all relevant matters, but the information disclosed in accordance with this obligation is confidential, and may not be used for any purpose other than within the proceedings in which the information has been disclosed.

5. Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and a contempt of court unless it is authorised by the judge.

6. In deciding whether to restrict or permit disclosure or publication of information relating to financial remedy proceedings the court has to consider the rights of the parties and children, including the right to respect for private and family life.

7. In cases where there is a public interest in the publication of the judgment which explains or illustrates an aspect of the law or practice, the judge will normally give permission for it to be reported, but subject to anonymisation and deletion of sensitive or confidential information.

8. In some cases, the judge may authorise publication of the judgment without anonymisation or deletion, for example, where a party has provided false information to the court, or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain.

9. There are some rare cases where the facts of the case are unique or so unusual that confidentiality can only be protected by withholding the judgment from publication altogether (this was argued by the husband in this case, but not accepted by Mr Justice Baker).

10. Lastly, duly accredited representatives of news gathering and reporting organisations are allowed to attend family proceedings held in private, unless the judge orders otherwise. That does not necessarily mean that they are permitted to report confidential and private information disclosed in the proceedings, although there is some disagreement amongst judges and practitioners on this issue, and as a result, the courts are not infrequently invited by the parties to financial remedy proceedings to make a reporting restrictions order.

I’m not going to go through the reasoning of Mr Justice Baker as he applied these principles to this case. Suffice to say that he considered that there was a public interest in the publication of the first judgment, but that the judgment should be amended so as to anonymise the parties, their child, other family members, as well as other pieces of private and/or confidential information.

He also made a reporting restrictions order, prohibiting the publication of various information relating to the case, if it was likely to lead to the identification of either of the parties or the child.

This post may not answer the question as to whether your financial remedy case is going to be made public, but hopefully, it will enlighten you a little. Obviously, for further information, including ways of ensuring that the case is not public by avoiding a court hearing altogether, you should consult a specialist family lawyer.

The full report of the reporting restrictions judgment can be found here.

The report of the main financial remedies judgment, all 252 paragraphs of it, can be found here.

Author: John Bolch

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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