An unwelcome intrusion?
Date: 11 June 2009
Authors: Rebecca Newitt
Issue: Vol 159, Issue 7373
Categories: Features, Family
The Family Proceedings (Amendment) (No 2) Rules 2009 (SI 2009/857) came into force on 27 April 2009. The new rules govern who may be present during a hearing in proceedings which are held in private.
The only exceptions to this, by virtue of r 10.28 (1), are hearings conducted for the purpose of judicially assisted conciliation or negotiations. This will, of course, include financial dispute resolution hearings.
In particular, the rules allow “duly accredited representatives of news gathering and reporting organisations”, in accordance with the UK Press Card Authority Scheme, to be present, subject to a power of the court to direct their exclusion from all or part of the proceedings for one of the reasons specified in r 10.28 (4). The media may be excluded where the court is satisfied that:
a) This is necessary:
i) in the interests of any child concerned in, or connected with, proceedings;
ii) for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or
iii) for the orderly conduct of the proceedings; or
b) justice will otherwise be impeded or prejudiced.
Sub-para (5) confirms that the court may exercise the power in sub-para (4) of its own motion or pursuant to representations made by any of the persons listed in sub-para (6), which does of course include the parties. However, before the court exercises its power in this way the press must also be given the opportunity to make representations.
The rules also deal with the communication of information relating to proceedings in relation to children. The media are not permitted to report or publish information relating to proceedings without the leave of the court.
A new pt XI has been inserted into the rules which provides, at r 11.1, that the new provisions apply to family proceedings which:
a) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
b) are brought under the Children Act 1989; or
c) otherwise relate wholly or mainly to the maintenance or upbringing of a minor.
It is clear that 11.1 (c) will only apply to a small minority of ancillary relief cases. The new rules apply to all levels of court, including the Magistrates’ Court and Family Proceedings Courts. Rule 10.20 (3) is unaffected in that the court file remains secret, subject to leave. The press do not therefore have access to skeleton arguments. This may lead to a great many applications by the press, on the basis that they need to better understand what they are hearing at court.
X v X
On 27 April 2009, the first day of the rule changes, Charles J gave judgment in the case of X v X (unreported). This dealt with an application by the husband in the context of ancillary relief proceedings to exclude the press.
The husband argued that publicity of the case served no useful purpose and could inflict severe damage on his property business, perhaps even bringing it to a premature end.
The judge acknowledged the husband’s worries that publication, possibly even in anonymised form, would alert, essentially, lenders to his business to take steps which could be damaging, and that it may be damaging to trade. However, he stated that this point must be balanced against general knowledge of the drop in values in the property market.
The husband also voiced concerns about what the media can and cannot publish. The judge suggested that a blanket injunction preventing any publication in relation to a particular case could be made, and “one could then move back from that and have anonymised publication and so on”.
Counsel for the husband argued that prohibiting the media from attending would remove all risk of publication, but the judge held that that argument was flawed as the basis of the change in the rules is that, generally, representatives of the media should be entitled to attend.
With that in mind the judge went on to consider whether there was anything in particular in this case, and the general circumstances, that would mean that the media should not attend. He accepted that points would be made in relation to private finances and possibly relating to the children, but the focus of the hearing would be on financial affairs and not the children.
He held that the submission that media presence might inhibit the husband from giving full and frank evidence was not compelling, particularly as serious issues in the context of a private hearing are likely to have to be reported by the court to the relevant public authority.
The judge held that there was nothing exceptional about the case by reference to the husband’s financial position, confidential trading information, trade secrets or anything else to warrant excluding the media. However, he said that that does not mean that issues will not arise in future in this case relating to what can and cannot be published. The judge gave no further guidance in this regard, stating that those are, at present, future problems.
In terms of publication, the judge noted that applications could be made by the media, to ensure that they would not be at risk of proceedings based on s 12 of the Administration of Justice Act, or by the parties for injunctive relief. He stated that this leaves the matters that can be published to, essentially, s 12 of the Administration of Justice Act 1960. It is clear that further guidance from the court will be required.
The judge indicated that there needs to be some co-operation between the courts, the parties and the media. He suggested that the media can be expected to draw to the attention of the court and the parties details of what they may publish “so that the matter could be taken forward in an appropriate way, having regard to the competing public and private interest that would invoke”. He then went on to refuse the husband’s application to exclude the press.
Practical considerations
It appears that there is nothing in the rules that requires anonymised publication of what the media hears in court, including names and addresses. However, the Judicial Proceedings (Regulation of Reports) Act 1926 (JP(RR)A 1926) states that the press may only publish: the names, addresses and occupations of the parties and witnesses; a concise statement of the charges, defences and counter-charges in support of which evidence has been given; submissions on any point of law arising in the proceedings, and the decision of the court thereon; and the judgment of the court and observations made by the judge in giving judgment.
In a talk given by Nicholas Mostyn QC he indicated that there is a strong argument that JP(RR)A 1926 should apply to ancillary relief proceedings, for it would be absurd if greater restrictions applied to an open court hearing of the main suit than to private ancillary relief proceedings that the press are entitled to attend. This point should be borne in mind when making applications on behalf of clients to limit publication.
The president gave guidance on the rules on 20 April, which must also be considered before making an application to exclude the media. Paragraph 5.4 deals with exercise of the court’s discretion in relation to exclusion in order to prevent justice being impeded or prejudiced.
The president gives two examples which may be sufficient to necessitate exclusion: a hearing related to the parties’ finances when the information being considered includes price sensitive information (eg which could affect share prices of a publicly quoted company); or any hearing at which a witness, other than a party, states for credible reasons that he or she will not give evidence in front of the media, or where it appears to the court that there is a significant risk that a witness will not give full and frank evidence.
There is no mention in the guidance, or elsewhere, of the mere fact of a party being a celebrity being enough for a successful application. The court will have to weigh up the right of the parties to private and family life against the media’s right to freedom of expression, and make a decision based on the facts of the particular case. The burden, on the balance of probabilities, to prove that one of the exclusionary criteria applies, will be on the party seeking to exclude the media.
It seems evident that a significant amount of time and legal fees will be expended on applications to exclude the media and, if unsuccessful, on potentially multiple applications in relation to publication. There may also be press applications seeking access to the court file.
This additional cost should be factored in to costs estimates provided to clients, and regularly updated as the proceedings progress. Further, with the rules in relation to exclusion being open to a great deal of judicial interpretation, and with cases being fact-specific, clients should be made aware of the uncertainty of success in respect of their applications and of the fact that case law that emerges will constantly refine and revise interpretation and application of the rules.
One outcome of the change in rules may be that parties are increasingly drawn to collaborative law and other alternative dispute resolution methods, in a bid to avoid the court structure altogether in relation to financial matters (save for approval of consent orders) in order to preserve their confidentiality. However, to date, opinions in the general press and legal publications can only be speculation.
It is clear that it will be some time before we have any real clarity in relation to the application of the rules and the outcome of cases in relation to exclusion, publication and access to the court file.
Rebecca Newitt, Manches LLP. E-mail: rebecca.newitt@manches.com
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