Rt Hon The Countess Karen Anne Spencer v Rt Hon Ninth Earl Spencer, Charles Edward Maurice Spencer

I shall refer to the parties by way of shorthand as the wife and the husband.

After the breakdown of their marriage, the parties agreed by an ARB1FS signed in September 2024 to have their financial proceedings determined by arbitration.

Shortly thereafter, proceedings in the King’s Bench Division were instituted on 11 October 2024 by the husband’s partner, Professor Jarman, in an action for alleged misuse by the wife of personal information of Professor Jarman. The wife denies the allegations and has defended the claim. Within those proceedings, Prof Jarman made a without prejudice save as to costs offer in December 2024 and a Part 36 offer in February 2025.

On 10 July 2025 the arbitrator, James Ewins KC, made an award. He included in the award a schedule of matters agreed between the parties which included:

The arbitrator saw the contents of both offers on the basis of fundamental conditions including that he would not refer to the contents of the offers in his award.

In his award, the arbitrator stated that he expected the wife to accept the Part 36 offer but that the husband must indemnify her for any sums required by her to satisfy the terms of the offer (including costs), and her own legal costs incurred in connection with the King’s Bench proceedings. The arbitrator’s working assumption was that the wife could accept the offer without an admission of unlawful conduct.

The wife’s media lawyers made a request to the arbitrator on 17 July 2025 to reconsider that part of the award which related to acceptance of the Part 36 offer. They suggested that although acceptance of the offer would not technically constitute acceptance of liability, there was potential for any statement in open court (“SIOC”) to be interpreted in that way.

In an email dated 24 July 2025, the arbitrator declined to reconsider the award because it did not amount to clarification under s57 of the Arbitration Act 1996, and fell outside the scope of the arbitration process. However, he went on to add “the following observations which may assist [the wife’s] understanding of my award in this regard”:

“My award was based upon my view that…whilst Prof. Jarman may have carriage of the SIOC, it is expressly subject to Lady Spencer’s agreement, in default of which the court would be asked to approve the final version. It was for that reason that I gave permission at 104.5 of my award to enable the relevant paragraphs of my award to be put before the King’s Bench Division in order to inform any judge who is asked to determine the unagreed contents of the SIOC as to the reasons for and context of Lady Spencer’s acceptance of the WP offer, pursuant to my award. I based my award on my view that this gives Lady Spencer sufficient protection from her concerns as to the contents of the SIOC”.

On 1 August 2025, the wife accepted the Part 36 offer.

By email dated 11 August 2025, the arbitrator gave permission for the relevant paragraphs identified above to be disclosed to the husband’s media lawyer (in addition to the wife’s media lawyer and Professor Jarman’ media lawyers, which had already been provided for).

By email dated 12 August 2025, the arbitrator gave permission for disclosure of the said paragraphs of the award into the King’s Bench proceedings.

Thus far, the wife and Professor Jarman have not been able to agree the SIOC. On 24 November 2025, Professor Jarman applied to the King’s Bench Division court for a SIOC prepared by her (but the contents of which are disputed by the wife) to be read out in court. The wife intends to contest the draft SIOC prepared by Professor Jarman’s lawyers and, if necessary, invite the judge pursuant to Part 53 of the CPR to refuse to approve the SIOC on the basis that it is not fair and proportionate, and to request that it be reformulated. A direction has been made for her to put in evidence in response to the SIOC application by Monday 8 December, a matter of only a few days away. She intends to refer in her statement to those paragraphs from the arbitration award for which disclosure provision has been authorised. As is clear from the arbitrator’s email on 24 July 2025, the disclosure made by the arbitrator was intended to equip the wife with the tools to put her case on the SIOC fairly and fully to the court.

In conventional way, the husband and wife bring before the court today a joint application for the arbitrator’s award to be converted into an enforceable court order. There is nothing controversial about the financial remedy parts of the order.

The principal matters for me to decide relate to the wife’s application for further provision to be made for disclosure from the arbitration process extending beyond the identified paragraphs. There are three main areas:

The orders sought by the wife today at least in part seem to me to go beyond what the arbitrator was asked to rule on (particularly 14(ii) and (iii) above). It follows that, in my judgment, this is a separate application made to this court for disclosure of material contained within the arbitration, and not merely an application for an order giving effect to the award. Sensibly, the wife filed an application on 24 November 2025 addressing these matters, such that in my judgment I am entitled to rule on the issues between the parties.

It is well established that arbitration proceedings are generally (i) private and (ii) confidential in that there is an obligation, implied by law and arising out of the nature of arbitration, on both parties not to disclose or use for any other purpose any documents prepared for, disclosed or produced in an arbitration; paragraphs 103-106 of Emmott v Michael Wilson & Partners Ltd [2008] Civ 184.

Further, Article 16.1 of the Family Law Arbitration Scheme Arbitration Rules provides:

“The general principle is that the arbitration and its outcome are confidential, except insofar as disclosure may be necessary to challenge, implement, enforce or vary an award (see Art.13.3(c)), in relation to applications to the court or as may be compelled by law).”

But the general principle is not absolute and is subject to exceptions. It is suggested at paragraph 107 of Emmott that those exceptions include:

I accept that the wife’s article 6 rights (right to a fair trial in the King’s Bench proceedings), article 8 rights (protection of personal reputation) and article 10 rights (freedom of expression) are engaged. So, too are, the husband’s rights, in particular articles 6 and 8 (both of which bear on the confidentiality of the arbitration which was intended to avoid publicity). No single article takes precedence over the others as was famously stated by Lord Steyn in Re S (A Child) [2005] 1 AC 593 at paragraph 17.

The wife refers me to the dicta of Ryder J (as he was) at paragraph 22 of Blunkett v Quinn [2005] 1 FLR 648: “The ability to correct false impressions and misconceived fact will go further to help secure the Art 6 and 8 rights of all concerned”. Further, she relies upon Commissioner of Police of the Metropolis v Times Newspapers Ltd [2011] EWHC 2705 (QB) in support of the proposition that in principle there might be an interference with article 6 rights if a party is prevented from relying on confidential documents in support of their defence of truth in a libel action.

The wife also prays in aid 22-039 of Toulson and Phipps on Confidentiality (4^th ed) which says, in respect of Emmott: “It would have been a perversion of justice if the respondent had been enabled by the doctrine of confidentiality to mislead other tribunals, without fear of contradiction, about the nature of its claims in the London arbitration, and any contractual term which supposedly enabled it to do so would be contrary to public policy”.

In considering where the balance of fairness lies, it seems to me that the following are material factors on the husband’s side:

On the wife’s side, the material factors seem to me to be:

My overarching view is that it is legitimate for disclosure orders to be made to the extent that they are reasonably necessary to enable the wife to present her case as to the appropriate wording of the SIOC. That was clearly envisaged by the arbitrator and set out in the award. She should not be hampered from doing so by prevention of relevant context being made available. Disclosure will enable her to correct any misleading impression in the King’s Bench proceedings to the contrary which may be made by Professor Jarman. Doing so in open court enables her to protect her reputation by reference to the disclosed material.

The disclosure adjudicated by the arbitrator is intended by him to afford her the opportunity to defend her position in the King’s Bench proceedings. It is proportionate and directed at the specific issue of being able to assert the circumstances in which acceptance of the Part 36 offer was made.

But to go beyond authorisation of the identified paragraphs, for that specific issue, in my judgment is not justified. It would disproportionately invade the essential confidentiality of the arbitration process to give the wife wide scope to rely on matters contained within the arbitration which were not authorised for disclosure and which are not obviously necessary given the disclosure which has already been provided for. It is not appropriate to enable her to disclose the contents of the arbitration proceedings (not just the specific paragraphs identified for disclosure by the arbitrator) to other persons including members of the media for reputational purposes. The balance of Articles 6, 8 and 10 falls in favour of disclosure within the King’s Bench proceedings as envisaged by the arbitrator, but no more. In my judgment, this conclusion is reinforced by the fact that the parties did not invite the arbitrator to adjudicate upon the matters now placed before me. As counsel for the husband submit, to permit expansion of disclosure as sought by the wife would drive a coach and horses through the confidentiality central to the arbitration process.

Accordingly, in my judgment disclosure should in principle be restricted to that already authorised by the arbitrator to enable the wife to defend the King’s Bench proceedings, and in particular to make representations about the SIOC, subject to paragraphs 32(iii) and 33 below.

The parties have helpfully provided a marked up draft order showing the areas of disagreement. I propose to deal with each aspect separately.

I decide the dispute on the proposed recitals at paragraph 11 as follows:

Paragraph 22b provides for payment by the husband to the wife to indemnify her in respect of acceptance of the Part 36 offer. There are, however, a number of aspects of this which are hotly disputed, such that calculation of the proper sum is not agreed, nor even the process by which the figure should be calculated. I do not consider that I can or should attempt to frame or define precisely how the arbitrator should go about that task. It is a matter for him, not least because it formed part of the overall award. The parties have agreed that this clause should be referred back for arbitration (which should be included in the order for completeness). I propose to delete 22b and instead provide:

“Within 14 days of determination by the arbitrator as to the sum to be paid by the husband to the wife in respect of her acceptance of the Part 36 offer, and pursuant to paragraph 101.1.2 of the arbitrator’s award dated 10 July 2025, the respondent shall pay the said sum to the applicant”.

At paragraph 29 of the draft order, the wife seeks a number of expanded disclosure provisions.

At paragraph 29a:

Paragraph 29c of the draft is now agreed. This seems to me to be the key provision. It permits the applicant to disclose the identified paragraphs for the purpose of the proceedings in the King’s Bench Division which was specifically approved by the arbitrator on 12 August 2025. To the identified paragraphs should be added (as set out above) paragraph 104.5 and the extracts from the email of 24 July 2025.

I reject the suggested wording within paragraph 29d that authorised disclosure may be made “to any person within, arising from, or for the purpose of discussing the Jarman claim…”. Once her witness statement is referred to in open court, she will be able to refer to these paragraphs without restriction. I do not consider it would be appropriate for me to permit her to do so before her witness statement is referred to. Professor Jarman has had no opportunity in these proceedings before me to argue to the contrary as she is not a party. It seems more logical to me for the wife to make such an application to the King’s Bench Division, entitling Professor Jarman to be on notice and make representations. Further, there is no evidence before me that the circumstances in which the acceptance of the Part 36 offer took place (which was the arbitrator’s main purpose in authorising disclosure) has been the subject of press publicity, adverse or otherwise. There is as yet no mischief requiring a remedy. The wife would, on this wording, be able to deploy the material unilaterally before any proceedings in open court have taken place to decide the terms of the SIOC. It would represent a significant, and in my judgment disproportionate interference in the confidentiality of the arbitration.

During argument, counsel for the wife went further, and sought permission for the wife to disclose to “any persons” not just the identified paragraphs of the award but:

I reject these eleventh hour suggestions. I see no justification for the wife to be able to deploy the contents of the award (containing as it does quintessentially personal details of the parties, including as to their financial affairs) in the King’s Bench proceedings or in the wider public domain. Nor am I persuaded that the additional paragraphs to which I was referred in the arbitration award should be disclosable in the King’s Bench proceedings or in the wider public domain. The arbitrator has carefully identified the paragraphs of the award which will enable the wife to be able to argue for a contextually accurate SIOC; none of the additional paragraphs mentioned seem to me to me to add matters of relevance. And, I repeat, all of this is in respect of matters covered by the confidentiality of arbitration which the parties elected.

I accede to the suggested wording at paragraph 29e that the wife should be able to disclose to her media lawyers the whole of the award. For the avoidance of doubt this is not permission to the wife or her media lawyers to disclose the award (other than the identified parts thereof) in the King’s Bench proceedings, or to any other person. It seems to me that to be able to represent the wife fully, they need sight of the award which gives an overall picture and may have a bearing on how they choose to advance the wife’s case. I observed in argument that it seemed odd to me that there could be any restrictions on her ability to provide her own papers to solicitors instructed by her, and she could, in theory, simply instruct her media lawyers in the financial remedy proceedings thereby enabling them to see all the material within the arbitration. However, the approach taken by the parties and the arbitrator was to limit that which the wife’s media lawyers can see, and following that course in my judgment disclosure of the full award shall be permitted.

Counsel for the wife hinted that once the wife’s media lawyers have had sight of the full award, the wife may make an application for further disclosure from the arbitration proceedings into the King’s Bench proceedings. That is a matter for her, but my view is that there would need to be considerable justification for me to depart from the carefully calibrated disclosure provisions of the arbitrator, as supplemented by me in this judgment.

If and insofar as the wife makes any application in respect of material which has already been authorised for disclosure (in particular the identified paragraphs), in my judgment that should logically be made to the King’s Bench Division.

Paragraph 33 relates to costs. I remind myself that this is a hearing to formalise the arbitrator’s award in a court order. The arbitrator factored into his award a sum for the wife to be able to implement the award. However, her counsel inform me that she has incurred a further £78,000 over and above that sum. It seems likely to me that the bulk of the costs relate to the dispute between Professor Jarman and the wife; certainly, that has dominated the arguments before me.

I do not accept the wife’s submission that the arbitrator intended to provide an award to meet the wife’s needs and I therefore must make an order for indemnity costs in favour of the wife. The wife is exiting this marriage with a very substantial sum and seems to me to be well able to absorb at least some costs. In general, it seems to me that each party has achieved some success in the hearing before me.

I propose to order the following:

This judgment will be published on the National Archives. For two reasons it will not be anonymised: