W v M (TOLATA Proceedings: Anonymity)

On 12 November 2010 the Claimant (“C”) commenced proceedings against the Defendant (“D”) by issue of a claim form under CPR Part 8. The claim is made pursuant to s14 Trusts of Land and Appointment of Trustees Act 1996 and concerns two valuable properties in Surrey. C claims that by virtue of their common intention, formed over the course of a long cohabitative relationship, she is a beneficial tenant in common of both properties. The case was originally fixed to last nine days in June 2012. At the PTR on 9 May 2012 it was agreed that this was an insufficient time estimate; the fixture was broken and the case was re-fixed to last 15 days in February 2013.

By agreement two of the original nine days have been used to hear an application by D dated 9 May 2012 for an order pursuant to CPR 39.2(4) that in the proceedings at the main hearing, and in my final judgment, all relevant people and places be anonymised. This application had been made just prior to the PTR and was before me on that occasion. I pointed out that pursuant to s12(3)(a) Human Rights Act 1998 reasonable notice should be given to the press. Consideration was given to the terms of FPR 2010 PD12I, which deals with this aspect where applications are made for reporting restriction orders in family proceedings governed by those rules (which these are not, so the Practice Direction is only relevant by analogy). PD12I para 3.2 states that service of applications for reporting restriction orders on the national media can now be effected via the Press Association’s Copy Direct service. Para 3.3 states that legal advisers to the media are used to participating in hearings at very short notice where necessary. This suggests that not very much notice needs to be given. Here notice was given via Copy Direct at 8.45 a.m. on the very morning of this hearing. That led to an email being forwarded to me from the Press Association which stated:

“[It] might be worth bringing to the judge’s attention the fact that the application was made on May 9 – and the decision is due today, meaning that this can hardly be called notification of an application”

The press were not represented at the hearing. It must be reasonably speculated that this was because they did not have sufficient time to arrange representation. I do not regard 105 minutes’ notice as sufficient to comply with s12(3)(a) of the 1998 Act, even though I must accept some responsibility for it in the light of remarks made by me on this topic at the PTR.

D’s application for anonymity is resolutely opposed by C.

D’s witness statement in support of his application is dated 4 May 2012. It is quite short. I now set out the relevant parts:

“2.

In view of the case law in this area, the large numbers of cohabitating couples and the parties’ professional status, I believe this case is likely to attract both reporting and potentially also media interest.

3.

The background to my application has already been referred to extensively in the correspondence and evidence in this matter. I have five children: two older children respectively are now adults and are the children of the claimant. They both carry my surname. Three aged between 9 and 1 respectively are the children of A. All my children with A bear my surname, and I am correctly named as their father on all school parents' lists, which are widely circulated by the school to parents. They each have a two name surname starting with A's surname with the last name being mine; it is not hyphenated either on their passports or elsewhere. They currently use just A's surname at school partly due to reasons associated with this case. I intend them to use my surname at all times and they have expressed a wish to do so and my son will do so.

4.

My name is unusual and distinctive in this country, even in 2012.

5.

This case has inevitably had a very detrimental impact on my children and on their mother, A, and our relationship. A is extremely ill. Her health had in fact stabilised prior to the first letter I received from Charles Russell in late September 2009, but has increasingly deteriorated since that period. A notable collapse in her health took place within two or three weeks of our holiday last year and followed the service on my solicitors of an application while I was on holiday, with the hearing listed for a few days after my return. It ruined our holiday. There had been an attempt to list it on short notice while I, and my solicitor, were away. It was in my opinion an entirely inappropriate application and was supported by what I have stated to be a misleading witness statement. It put me under considerable pressure as have these proceedings. A was very upset by it. The effect of the relapse was that A effectively ceased to be able to walk and had to be taken to hospital Her health is continuing to deteriorate and she is now once again at a point where walking at all has become extremely difficult. She cannot now cope with even simple matters without becoming overwrought.

6.

A has told me that she is thinking of leaving me and taking the children with her as she cannot take anymore of the stress or the consequences of my former relationship with the claimant. I also believe if there is any publicity over this case, or she is approached by anyone about it, or there are issues with our children arising from it, or its publication including them being teased at school, it will materially further impact on her health and result in our relationship breaking up. She will then seek to move away and go to live near her mother. A and my children have a right to be protected from a situation which is not of their making and a right to a family life. Any further serious deterioration in A's health could deprive them of their mother.

7.

I accordingly ask for an order in a form that protects my children and A from the threats to their health, well-being and family life I have identified above. In particular I seek an order that my own surname and my children's surname in its full and shortened form, using either their mother's or my own surname only, are anonymised as are the identities of all three of my properties, as they would readily be connected to A and my children now or in the near future.”

D advances a further specific reason in support of his claim for anonymity. It is described thus in his statement:

“8.

A further matter that arises is that a very important witness to my case, B , has made it clear he is not prepared to give evidence if his evidence could result in his previous conviction, which is now spent, coming out. He was a professional person and ceased to practice in circumstances within my full knowledge. Neither he nor his wife are, quite understandably, prepared to risk the life they have built since his conviction, to assist me in this case. In fact his mother was originally prepared to give evidence on my behalf and remembered the fact that she had lent me money, and that the claimant had also lent me money as a loan, to buy Blackacre. She also said in my presence that she remembered that the claimant had not wanted to be involved in buying either Blackacre or Whiteacre . However after she had recounted her memory of events, B said he was very concerned about his involvement in this case in the light of his earlier conviction and any publicity associated with the case. As soon as he said that B’s mother changed her attitude, and she has consistently refused to make a witness statement, citing her wish not to do anything that would harm C as a woman. I accordingly ask that his name is also anonymised in this case so that he cannot be identified and can give evidence freely.”

The relevant background can be shortly stated. C is a professional person . D is also a professional person. They are both in their fifties. They began an intimate relationship in 1984. They have two children - both of whom are now adults. According to C (but denied by D), although D promised to marry her, and C changed her surname to D’s in anticipation of that event, they never did. Blackacre in Surrey was bought in 1991 in D’s sole name. Whiteacre also in Surrey was bought in 1997, again in D’s sole name. C claims that their common intention was that they would be jointly owned. Among other things she claims that they ran an inseparable joint economy. According to C their relationship ended in 2009 when D told C that he was in a relationship with A and had two daughters with her; according to D, their relationship ended years earlier.

The two properties are of great value – about £12.5m in combination, although there are mortgages of around £5.5m.

Analysis of C’s claim will not only be legally complex (there being no fewer than five cases from the highest court to consider (Pettitt v Pettitt [1970] AC 777, HL; Gissing v Gissing [1971] AC 886, HL; Lloyds Bank v Rosset [1991] 1 AC 107, HL; Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, HL; and Jones v Kernott [2011] UKSC 53, [2011] 3 FCR 495, [2011] 3 WLR 1121, SC), as well as many cases in the Court of Appeal), but it will be also exceptionally challenging factually. The case has spawned a vast amount of documentation, and the court will in effect be asked to undertake a detailed audit of all the transactions of this relationship over nearly 30 years.

Mr Martin QC has described this case as “a divorce in all but name, and a very messy one at that”. That may appear true to the man (or woman) on the street, but legally this case is a world away from a proceeding for a financial remedy after divorce. That said, it will be instructive to look at the position regarding the claim for anonymisation were this in fact a proceeding for a financial remedy after divorce, if only for the sake of contrast.

The starting point or general rule, as stated in CPR 39.2(1), is that “the general rule is that a hearing is to be in public”. This means that members of the public may attend, and that the press may report the proceedings. The signal importance of hearings being held in public is traceable back (at least) to the famous decision of the House of Lords in Scott v Scott [1913] AC 417. Lord Atkinson stated at page 463:

“The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect. ”

Lord Shaw of Dunfermline expressed himself forcefully at page 477:

“It is needless to quote authority on this topic from legal, philosophical, or historical writers. It moves Bentham over and over again. “In the darkness of secrecy, sinister interest and evil in every shape have full swing. Only in proportion as publicity has place can any of the checks applicable to judicial injustice operate. Where there is no publicity there is no justice.” “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.” “The security of securities is publicity.” But amongst historians the grave and enlightened verdict of Hallam, in which he ranks the publicity of judicial proceedings even higher than the rights of Parliament as a guarantee of public security, is not likely to be forgotten: “Civil liberty in this kingdom has two direct guarantees; the open administration of justice according to known laws truly interpreted, and fair constructions of evidence; and the right of Parliament, without let or interruption, to inquire into, and obtain redress of, public grievances. Of these, the first is by far the most indispensable; nor can the subjects of any State be reckoned to enjoy a real freedom, where this condition is not found both in its judicial institutions and in their constant exercise.”

And at page 484:

“I may be allowed to add that I should most deeply regret if the law were other than what I have stated it to be. If the judgments, first, declaring that the Cause should be heard in camera, and, secondly, finding Mrs. Scott guilty of contempt, were to stand, then an easy way would be open for judges to remove their proceedings from the light and to silence for ever the voice of the critic, and hide the knowledge of the truth. Such an impairment of right would be intolerable in a free country, and I do not think it has any warrant in our law. Had this occurred in France, I suppose Frenchmen would have said that the age of Louis Quatorze and the practice of lettres de cachet had returned.”

A more contemporary rationalisation is to be found in the judgment of the President of the Court of Appeal of New Zealand, Woodhouse P, in Broadcasting Corporation of New Zealand v Attorney General [1982] 1 NZLR 120, 122:

“…the principle of public access to the Courts is an essential element in our system. Nor are the reasons in the slightest degree difficult to find. The Judges speak and act on behalf of the community. They necessarily exercise great power in order to discharge heavy responsibilities. The fact that they do it under the eyes of their fellow citizens means that they must provide daily and public assurance that so far as they can manage it what they do is done efficiently if possible, with human understanding it may be hoped, but certainly by a fair and balanced application of the law to the facts as they really appear to be. Nor is it simply a matter of providing just answers for individual cases, important though that always will be. It is a matter as well of maintaining a system of justice which requires that the judiciary will be seen day by day attempting to grapple in the same even fashion with the whole generality of cases. To the extent that public confidence is then given in return so may the process may be regarded as fulfilling its purposes.”

With the enactment of the Human Rights Act 1998 and the incorporation of the Convention Rights into domestic law applications such as this are invariably now judged by reference to the competing claims for dominance of Articles 6 (right to a fair trial), 8 (right to respect to private and family life) and 10 (right to freedom of expression). It is noteworthy that by s12(4) of the Act I am bidden to have “particular regard to the importance of the Convention right to freedom of expression”.

Article 6 of course embodies the starting point by providing that:

“In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.”

(Emphasis added)

The contest between the competing claims or rights has been the subject of no fewer than four decisions of the highest court (Campbell v MGN Ltd [2004] 2 AC 457, HL; Re S (A Child)(Identification: Restrictions on Publication) [2005] 1 AC 593, HL; Re Guardian News and Media Ltd [2010] 2 AC 697, SC; Re AP (No 2) [2010] UKSC 26, SC) and there is a wealth of other authority both in Strasbourg, in the Court of Appeal and at first instance. Fortunately for me the relevant principles stated in those cases referable to the issue which I have to decide have been gathered together and stated in a codified form by Lord Neuberger MR in H v News Group Newspapers Ltd [2011] 1 WLR 1646 at para 21:

“In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:

(1)

The general rule is that the names of the parties to an action are included in orders and judgments of the court.

(2)

There is no general exception for cases where private matters are in issue.

(3)

An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.

(4)

Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.

(5)

Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.

(6)

On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.

(7)

An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.

(8)

An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.

(9)

Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.

(10)

Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one.”

Principle No. 5 in H v News Group Newspapers Ltd derives from an observation of Lord Hoffmann in Campbell v MGN Ltd in these terms:

“56.

If one takes this approach, there is often no real conflict. Take the example I have just given of the ordinary citizen whose attendance at NA [Narcotics Anonymous] is publicised in his local newspaper. The violation of the citizen's autonomy, dignity and self-esteem is plain and obvious. Do the civil and political values which underlie press freedom make it necessary to deny the citizen the right to protect such personal information? Not at all. While there is no contrary public interest recognised and protected by the law, the press is free to publish anything it likes. Subject to the law of defamation, it does not matter how trivial, spiteful or offensive the publication may be. But when press freedom comes into conflict with another interest protected by the law, the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right. In the example I have given, there is no public interest whatever in publishing to the world the fact that the citizen has a drug dependency. The freedom to make such a statement weighs little in the balance against the privacy of personal information. ”

Therefore, once another interest protected by the law comes into play (by which I mean is positively proved, rather than merely asserted) then a fact-specific balancing exercise has to be undertaken.

That a highly fact-specific balancing exercise between the competing Convention rights or claims has to be undertaken is well-known and is traceable to the lapidary observation of Lord Steyn, in re S at paragraph [17]:

“First, neither [Articles 8 nor 10] has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.”

A very recent example of the conduct of the balancing exercise is the comprehensive decision of Tugendhat J in Trimingham v Associated Newspapers Ltd [2012] EWHC 1296 (QB). I shall return to this decision in another context later.

It should not be thought that an anonymisation order does not involve an arguably significant curtailment of the Article 10 right to freedom of expression, as Lord Rodger explained in re Guardian News and Media Ltd at para [63]:

“What’s in a name? “A lot”, the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG –v- Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell –v- MGN Ltd at para 59 “judges are not newspaper editors” … this is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report in some austere, abstract form, devoid of much of its human interest could well mean that the report would not be read and the information would not be passed on.”

And per Lord Steyn in re S at para 34:

“from a newspaper’s point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial. If newspapers choose not to contest such an injunction they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer.”

I have pointed out that I am bidden by s12(4) to bidden to have “particular regard to the importance of the [Article 10] right to freedom of expression”. Equally, by virtue of the decision of ETK v News Group Newspapers Ltd [2011] EWCA Civ 439 I must accord “particular weight” to the Article 8 rights of any children likely to be affected by publication. In that case the News of the World newspaper wished to publish details of an adulterous affair between a man and a work colleague. Both the man, his wife and the work colleague sought to prevent publication. The man and his wife relied strongly on the Article 8 rights of their children who were described as teenagers. In para 17 Ward LJ stated:

“Then there are the children. The purpose of the injunction is both to preserve the stability of the family while the appellant and his wife pursue a reconciliation and to save the children the ordeal of playground ridicule when that would inevitably follow publicity. They are bound to be harmed by immediate publicity, both because it would undermine the family as a whole and because the playground is a cruel place where the bullies feed on personal discomfort and embarrassment. ”

And at para 18:

“The rights of children are not confined to their Article 8 rights. In Neulinger v Switzerland (2010) 28 EHRC 706 the Strasbourg court observed that:

"131.

The Convention cannot be interpreted in a vacuum but must be interpreted in harmony with the general principles of international law. Account should be taken … 'of any relevant rules of international law applicable in the relations between the parties' and in particular the rules concerning the international protection of human rights. …

135.

… there is currently a broad consensus – including in international law – in support of the idea that in all decisions concerning children, their best interests must be paramount."

Support for that proposition can be gathered from several international human rights instruments, not least from the second principle of the United Nations Declaration of the Rights of the Child 1959, from article 3(1) of the Convention of the Rights of the Child 1989 (UNCRC) and from article 24 of the European Union's Charter of Fundamental Rights. For example, article 3(1) of the UNCRC provides:

"In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration."”

And at para 19:

“It is clear that the interests of children do not automatically take precedence over the Convention rights of others. It is clear also that, when in a case such as this the court is deciding where the balance lies between the article 10 rights of the media and the Article 8 rights of those whose privacy would be invaded by publication, it should accord particular weight to the Article 8 rights of any children likely to be affected by the publication, if that would be likely to harm their interests. Where a tangible and objective public interest tends to favour publication, the balance may be difficult to strike. The force of the public interest will be highly material, and the interests of affected children cannot be treated as a trump card.”

And at para 20:

“How then does this approach square with the way Lord Steyn advised in Re S that the ultimate balance should be struck …? He was confining himself to articles 8 and 10 and not ranging more widely to take note of the other Convention rights of children. He expressed his opinion long before Neulinger called for a re-appraisal of the position. In any event, the emphasis he added makes it clear that he was concerned strictly with the balance between article 10 and article 8 "as such", i.e. where the only rights in balance were those conferred by articles 8 and 10. If, as he requires, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary, then the additional rights of children are to be placed in the scale. The question then is whether the force of the article 10 considerations outweigh them given what I have said in paragraph 19”

It is noteworthy that in K v L [2011] EWCA Civ 550, [2012] 1 WLR 306, CA an anonymisation order was made by specific reference to the interests of the minor children of the parties.

In ETK the husband had made a free-standing “privacy” application against the publishers of the News of the World. Neither his wife, nor the work colleague nor the teenage children were parties to the proceedings. Yet Ward LJ in para 19 held that “the interests of the appellant's children are undoubtedly engaged” because they would be “likely to be affected by the publication, if that would be likely to harm their interests”. K v L was an ancillary relief appeal to which the only parties were the husband and wife. Neither the press nor the children (there aged between 16 and 9) were parties. The anonymisation order was made “to protect the rights of the three children under Article 8” (see para 26).

There is a danger, surely, that the principle of affording “particular weight” to the interests of children “likely to be affected by the publication, if that would be likely to harm their interests” is the thin end of a very large wedge. Where does one draw the line? The facts of ETK involved an employment dispute between the work colleague and her employer. That could have been litigated in an Employment Tribunal. Would an anonymisation order have been made in such proceedings by reference to the interests of the children of the husband and wife?

Imagine that here D had been sued for professional negligence by a client and that in those proceedings it was alleged that his carelessness derived from his confused and distracting personal life. Would an anonymisation order have been made in such proceedings by reference to the disturbance to his family life with A and his children likely to be caused by revelations in those proceedings? Yet the tenets propounded by Ward LJ are of general application and are, in principle, applicable in all litigation fields.

A difficult question is whether the court should have regard to the journalistic merit of the publication in question in the balancing exercise. At para 17 above I have cited the clear statements of Lord Hoffmann and Lord Roger that the court should not act as some kind of newspaper editor, as well as the clear statement of the Strasbourg court that Art 10 protects both the substance and form of media expressions. In similar vein in Trimingham Tugendhat J stated at para 340:

“I have emphasised that in using the word "reasonable" in this judgment I am giving it the special meaning which I have held that I am required to give it in order to interpret [Protection from Harassment Act 1997] s1(3)(c) compatibly with the right to freedom of expression. I also emphasise that I make no finding as to whether what the Defendant has done is reasonable in any other meaning of the word reasonable. It is not appropriate for the court to express opinions on matters which are not relevant to a legal issue. Matters of style, and to a large extent what is or is not relevant, are matters within a journalist or editor's field of independence, upon which the court should express no view. The Defendant is one of the most successful news publishers in the world. So there are many readers who are not offended by what it publishes. On the other hand, there are people who are very critical of what the Defendant publishes. A court cannot express a view in the way that anyone else can. All the court can do is to find whether or not it is necessary and proportionate to sanction or prohibit a particular publication on one of the grounds specified in Art 10(2).”

On the other hand, para 56 of Lord Hoffmann’s speech in Campbell v MGN Ltd (which finds expression as Principle No. 5 in H v News Group Newspapers Ltd) clearly contemplates that the court will have to make some kind of value judgment as to the reason or wish of the media to make the expression in question. As he said: “the question is whether there is a sufficient public interest in that particular publication to justify curtailment of the conflicting right”. A good example of this question being posed, and answered, is the judgment of Ward LJ in ETK v News Group Newspapers Ltd, where he stated at paras 21 and 22:

“Here there is no political edge to the publication. The organisation of the economic, social and political life of the country, so crucial to democracy, is not enhanced by publication. The intellectual, artistic or personal development of members of society is not stunted by ignorance of the sexual frolics of figures known to the public. … In my judgment the benefits to be achieved by publication in the interests of free speech are wholly outweighed by the harm that would be done through the interference with the rights to privacy of all those affected, especially where the rights of the children are in play.”

And at para 23:

“The decisive factor

The decisive factor is the contribution the published information will make to a debate of general interest. Is a debate about the reasons why X's employment terminated a matter of such public interest? Both the appellant and X will be known to a sector of the public though it is impossible to measure how large – or how small – that sector is. Certainly some members of the public will have noticed the end of her employment: a proportion of them will even have speculated why she left. But the reasons for her leaving give rise to no debate of general interest. The reasons for her leaving may interest some members of the public but the matters are not of public interest. Publication may satisfy public prurience but that is not a sufficient justification for interfering with the private rights of those involved.”

I do not shrink from saying that this is a very difficult issue indeed, particularly where one is, as here, not considering a specific proposed press report, but rather is speculating about how the press, ranging from broadsheets to tabloids, from TV to internet, might report these proceedings when they take place. Perhaps they will concentrate on the personal life of D which I have referred to, in which case it might be said that the publication is merely to satisfy public prurience. On the other hand, perhaps they will concentrate on the legal complexities that attend this case and the failure of the Government as urged both by the Law Commission and the Supreme Court to enact a fair discretionary system for disposal of these cases (as has happened in Scotland), in which case it could certainly be said that publication contributes to a debate of general interest concerning the social and political life of this country. Perhaps the motives will be mixed.

Recognising the difficulties involved I am of the opinion that the court should be very cautious before embarking on a scrutiny either of the motives for publication or of the intrinsic merit of the piece in question. As Tugendhat J has pointed out, views vary widely as to what is or is not in the public interest. If such scrutiny became commonplace the court would soon find itself operating as a secular censor librorum granting or withholding its nihil obstat.

Obviously there must be a sufficient evidential base to engage an asserted Convention right. Mere assertion will not be enough. In Kelly –v- BBC [2001] 1 FLR 197 Munby J stated at p212:

“Furthermore, says Mr Tugendhat, and I agree, if those who seek to bring themselves within para 2 of Art 10 are to establish ‘convincingly’ that they are — and that is what they have to establish — they cannot do so by mere assertion, however eminent the person making the assertion, nor by simply inviting the court to make assumptions; what is required (and this even if the case involves national security) is proper evidence: see The Zamora [1916] 2 AC 77, 108, Secretary of State for Defence and Another v Guardian NewspapersLtd [1985] AC 339, Council of Civil Service Unions and Others v Minister for the CivilService [1985] AC 374, 406F, and ex parte Guardian Newspapers Ltd [1999] 1 WLR 2130.”

Mr Todd QC argues that by parity of reasoning the same principle must obviously apply to a proposed derogation from, or curtailment of, Article 10 (or Article 6), in reliance on Article 8. I agree. Proper, convincing evidence is needed not only of a meaningful violation of the right to a private or family life but also of a causative link between the apprehended disturbance and the proposed publication.

In the skeleton arguments reference has been made to the position concerning financial remedy proceedings following divorce. As I have mentioned, Mr Martin QC has described this as a “divorce in all but name”. It might be thought illogical that a completely different set of principles should operate in relation to a domestic couple depending on whether or not they happened to be married, and that I should therefore conduct the balancing exercise so as to achieve consistency between the two types of proceedings.

The law concerning media access to, and the right to report, financial remedy proceedings following divorce is unfortunately not a model of clarity. I shall try to set it out as simply and shortly as I can.

Prior to 27 April 2009 ancillary relief proceedings (as they were then called) at first instance were heard strictly in private, although, curiously, the positive obligation to do so had only arisen as late as 1968. I set out the history in my judgment in W v W (Financial Provision: Form E) [2004] 1 FLR 494 at paras 111 – 114. By contrast, ancillary relief appeals were (and remain) heard in open court by the Court of Appeal, although, on occasion, have been made the subject of reporting restrictions: see, for example K v L per Wilson LJ (as he then was) at para 26.

The obligation to hear financial remedy proceedings in private is now contained in rule 27.10 FPR 2010.

The reasons that the proceedings were (and remain) specifically designated as private business were (and remain) manifold. One reason is that Parliament has already imposed severe restrictions on the reporting of divorce proceedings. At first instance in Clibbery v Allen [2001] 2 FLR 819 Munby J was of the opinion that the Judicial Proceedings (Regulation of Reports) Act 1926 applies to ancillary relief (now financial remedy) proceedings. On this view the press, if present and in the absence of a reporting restriction order, may only publish:

(i)

the names, addresses and occupations of the parties and witnesses;

(ii)

a concise statement of the charges, defences and counter-charges in support of which evidence has been given;

(iii)

submissions on any point of law arising in the course of the proceedings, and the decision of the court thereon;

(iv)

the judgment of the court and observations made by the judge in giving judgment.

In the Court of Appeal (Clibbery v Allen [2002] 1 FLR 565) no argument was addressed on this issue although the President expressed the view (at para 71) that ‘this may be the case’. By contrast, Thorpe LJ stated at para 90 “but it is self-evident that the 1926 Act no longer bites on the business of the courts in our modern family justice system”. Speaking for myself I incline more to the view of Munby J, supported (tentatively) by the President.

In Clibbery v Allen Butler-Sloss P and Thorpe LJ preferred to rationalise the right to privacy by reiteration of the long-standing and well-recognised implied undertaking of non-disclosure of the other party's documents obtained under compulsion. From this they extrapolated the proposition that no information about any aspect of ancillary relief (now financial remedy) proceedings could be published in the press without leave.

Thus in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 Stanley Burnton LJ held at para 76:

“Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.”

Generally speaking, a law report of an ancillary relief case would be anonymised. The judgment would be issued and either the law reporters or counsel would be expected to anonymise it. The standard rubric appended to the judgment has for a long time stated:

“This judgment is being handed down in private on [date]. It consists of [X] paragraphs and has been signed and dated by the judge. The Judge hereby gives leave for it to be reported. The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them may be identified by name or location. In particular the anonymity of the children and the adult members of their family must be strictly preserved. If reported, it shall be the duty of the Law Reporters to anonymise this judgment”

Failure to comply with the terms of the rubric amounts to a contempt of court: see Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam) [2012] 1 FLR 466 per Munby J.

However, not every ancillary relief judgment was (or is) anonymised. If non-disclosure or other litigation misconduct had been proved then a public judgment, naming and shaming, may well ensue, as there is no confidence in iniquity: see Lykiardopulo v Lykiardopulo where there had been gross non-disclosure and falsification of documents. Another example of a fully public judgment is where anonymisation would be effectively impossible because of the prominence of one of the parties. This was the case in both Sorrell v Sorrell [2005] EWHC 1717 (Fam) [2006] 1 FLR 497 and McCartney v Mills McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 1508. In the latter case the proceedings had been followed and commented on extensively by the press from outside the courtroom and it was therefore considered that full publication was necessary if only to dispel misconceptions as to the exact nature of the disposal.

Ancillary relief proceedings are not the only example of private business. An obvious additional example is a proceeding under the Children Act 1989, where by s97(2) and (3) criminal penalties await those who breach the privacy. A further example is a proceeding in the Court of Protection. In Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343, [2010] 1 WLR 2262, [2010] 2 FCR 187, [2010] 2 FLR 1290, Lord Judge CJ stated at [19]:

“The new statutory structure starts with the assumption that just as the conduct of their lives by adults with the necessary mental capacity is their own affair, so too the conduct of the affairs of those adults who are incapacitated is private business. Hearings before the Court of Protection should therefore be held in private unless there is good reason why they should not. In other words, the new statutory arrangements mirror and rearticulate one longstanding common law exception to the principle that justice must be done in open court.”

In that case the merit was extolled of “a suitably anonymised publication of the court's judgment” (see para 11).

The European Court of Human Rights has ruled that family proceedings held in private do not breach Article 6 of the Convention: see B v United Kingdom; P v United Kingdom [2001] 2 FLR 261. Further, Art 14(1) of the International Covenant on Civil and Political Rights (1966), which this country has ratified, provides that “judgment is not required to be public where the proceedings concern matrimonial disputes”.

This was the state of the law prior to 27 April 2009.

In Spencer v Spencer [2009] 1 FLR 494 Munby J (as he then was) explained with characteristic lucidity the twists and turns of the consultative history which began in July 2006 and led to the then Lord Chancellor, the Right Honourable Jack Straw MP, on 16 December 2008, issuing the Government White Paper Family Justice in View, Cm 7502. In that paper the Government announced, in a second u-turn, that accredited media representatives would be permitted access to family proceedings, subject to a power of exclusion. It is noteworthy that in its cited response to the consultation the Society of Editors stated (at p29): “There is no reason to suppose that mere attendance can cause harm – especially when combined with automatic or discretionary reporting restrictions”. In its announced intentions the Government stated (at p33):

“It is worth noting that generally speaking it is not the adult-only cases that result in media scrutiny. However, the key concern with introducing automatic rights of attendance for the media without ensuring an appropriate scheme for reporting restrictions is that violent, distressing and salacious details could be available to the media. Articles relating to domestic violence or forced marriages might be informative for the public, but could name the victims involved or provide identifying personal details. The possibility of such reporting could be to deter victims from coming forward to obtain the protection of the court.

Since we have decided to open up family proceedings to the media, we consider it essential to bring forward legislation that provides the necessary protection for children and families by preventing certain information from being published without the permission of the court. Children and families need to be confident that their privacy will be protected. We will revise the law on reporting restrictions as soon as parliamentary time allows.”

(Emphasis in original)

Changes to the then FPR 1991 were duly made (see rule 10.28). They are now to be found in rule 27.11 FPR 2010. With effect from 27 April 2009 accredited media representatives were, in principle, given access to hearings, but subject to rule 27.11(4) (and rule 27.11(1) which excepts the FDR). The press can be excluded “in the interests of any child concerned in, or connected with, the proceedings; or for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness; or for the orderly conduct of the proceedings; or where justice will otherwise be impeded or prejudiced.”

PD 27B para 5.4 gives only two examples of situations where the criterion “where justice will otherwise be impeded or prejudiced” may arise namely:

Parliament duly enacted the promised revision to the law on reporting restrictions. This was contained in Part 2 of the Children, Schools and Families Act 2010. Essentially by ss11-13, 21, and Sch 2 a contempt will be committed by an unauthorised publication by the media of a judgment or any part of the proceedings which is likely to lead members of the public to identify an individual as someone who is or has been involved in or otherwise connected with the proceedings, or which reveals certain specified sensitive personal information (principally of a medical nature). However, while other parts of the Act have been brought into force, Part 2 has not. Indeed, it seems likely that it never will be as by Clause 17(4) of the Crime and Courts Bill (introduced on 10 May 2012) Part 2 will be repealed.

Had Part 2 of the 2010 Act been brought into force then the careful balance contemplated by the White Paper would have been achieved. The point of allowing media access was to answer the old Benthamite question “Quis custodiet ipsos custodes?” As Munby J put it in Spencer at para 42:

“Viewed from the perspective of the media, and the market which the media are serving, that public interest is to be promoted and public confidence in the courts is to be maintained by justice being administered in public, or at least in a manner which enables its workings to be properly scrutinised, so that (and this is the modern European Convention version of the age-old Benthamite principle) the judges and other participants in the process remain visible and amenable to comment and criticism.”

But in the absence of implementation of the reasonable and necessary balancing provisions in the 2010 Act what can the media report in the absence of a reporting restriction order? PD 27B para 2.4 states that the law on reporting family proceedings is ‘unaffected’ by the new rules on media access. In July 2011 a paper The Family Courts: Media Access & Reporting was published. It was authored by two barristers and endorsed in a joint preface by the President of the Family Division and the Executive Director of the Society of Editors. In paras 74 – 75 it states:

“The position therefore is that the media will have considerable difficulty in reporting proceedings for ancillary relief and other cases in which reference is made to information disclosed under compulsion unless the information passes into the public domain.

A question arises as to whether information put before a court sitting in private with media representatives lawfully in attendance has entered the public domain. If so, the implied undertaking ceases to have effect in respect of that information. This is not a matter which has received judicial consideration.”

The failure to implement Part 2 of the 2010 Act does not mean that, absent a reporting restriction order, the media are definitely free to report everything that they observe and hear in court. Their freedom to do so depends on whether or not the 1926 Act applies and on whether the implied undertaking remains operative. As I have explained, these are turbid waters.

My view is that the starting point in financial remedy proceedings should be that, if sought, a reporting restriction order in equivalent terms to the standard rubric should be granted. It is my view that, generally speaking, only if the court is prima facie satisfied that the case will result in proof of iniquity in some shape or form should that starting point be departed from. As the White Paper put it “families need to be confident that their privacy will be protected”. Or in the words of Stanley Burnton LJ “parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected”. The powerful statements, referred to by me at para 17 above, warning of the danger of anonymisation leading to a curtailment of the right to freedom of expression in the reporting of public civil proceedings do not, in my opinion, militate in favour of a derogation from the core privacy that attaches to the special class of (officially private) case that is a claim for financial remedies following divorce. It would be a strange thing if the court’s undoubted power to anonymise its judgment were to be emasculated by an unfettered right to report fully the proceedings leading to the judgment.

There is a strong argument for saying that proceedings between domestic partners concerning the division of their assets should be subject to the same reporting rules whether or not they happen to be married, or whether or not one of them happens to have died (and the proceedings are under the Inheritance (Provision for Family and Dependants) Act 1975). Looked at from first principles the rights to privacy and to confidence must surely be, if not identical, then very similar whether the proceedings are under the Matrimonial Causes Act 1973, the Civil Partnership Act 2006, the Trusts of Land and Appointment of Trustees Act 1996, or the Inheritance (Provision for Family and Dependants) Act 1975.

However Parliament when making the CPR and the FPR 2010 has drawn a clear distinction between proceedings under the Matrimonial Causes Act 1973 and the Civil Partnership Act 2004 on the one hand; and the Trusts of Land and Appointment of Trustees Act 1996, and the Inheritance (Provision for Family and Dependants) Act 1975, on the other. The former are designated by the rules as private business; the latter as public business. A possible rationalisation may be that the former involve the court exercising an inquisitorial function attended by a strict duty of full and frank disclosure of confidential information which is entitled to protection; whereas proceedings under the Trusts of Land and Appointment of Trustees Act 1996, are, at least in theory, purely adversarial with disclosure limited to the issues needed for adjudication. But the rationalisation falls down when you consider that proceedings under the 1975 Act are just as inquisitorial as proceedings under the 1973 and 2004 Acts.

But whatever views I may have as to the merits of aligning the rules in all kinds of domestic proceedings it would be a step too far for me to apply a process of alignment in my conduct of the balancing exercise, particularly where the financial remedy rules on reporting are less than pellucidly clear, and where my view of what they mean and how they should be applied may be thought by a higher court to be wrong.

Ultimately it for the Government and Parliament to decide whether to extend those rules to non-marital proceedings between domestic partners.

Drawing the threads together as best I can it seems to me that the following principles inform the disposal of this application:

Mr Martin QC and Professor Bailey-Harris argue that on the evidence in D’s witness statement the Article 8 rights of D, A , and most particularly their children, are plainly and properly established. They argue that it is the duty of the court to provide adequate protection for properly established rights; and that the existence of a remedy is a fundamental part of the protection of rights conferred by the Convention.

They argue that the children have nothing to do with the current dispute; and if the connection becomes known, the collateral damage to them and to their mother (who is in very poor and deteriorating health), and to their relationship with their father, will far outweigh the interest of the press under Article 10 in being able to report the names of the parties.

They argue that by only seeking anonymisation the Article 10 interests will be protected: the proceedings will be in public, and such points of public or legal interest as arise can be reported. The sole restriction will be on the reporting of anything that will tend to identify the parties themselves.

In relation to B , the claim for his specific anonymisation is based on Article 6, namely the right to a fair trial. They argue that D regards him as an indispensable witness, and does not wish to have his chances of success at trial prejudiced by the absence, or merely enforced presence, of this witness. They suggest that his openness and candour may well be compromised if he is summoned to appear and has to give his evidence completely openly. By way of analogy they draw my attention to FPR 2010 PD 27B which gives as one instance where media representatives may be excluded from family proceedings the ground that justice will otherwise be impeded or prejudiced at any hearing at which a witness states for credible reasons that he or she will not give evidence in front of media representatives, or where there appears to the court to be a significant risk that a witness will not give full or frank evidence in their presence.

Finally Mr Martin QC and Professor Bailey-Harris ask me to ponder C’s motives for opposing this application. They suggest that her desire for a fully public trial shows that she wishes to see D pilloried: she acts as a “woman scorned”. They suggest that her opposition is a form of improper pressure designed to force D into an unfair compromise of the claim.

Mr Todd QC and Mr Wilson QC argue that neither the Article 8 claim (in relation to D and his family) nor the Article 6 claim (in relation to B) has been properly established by evidence. The “evidence” amounts to mere assertion or hearsay, and unimpressive hearsay at that. Where they ask is a statement from A giving primary evidence of her health and distress? Where is independent medical evidence concerning her health? Why is there no statement from B confirming what D says he says in para 8 of his witness statement? They say that there has been no attempt to comply with the Civil Evidence Act 1995 or with CPR rules 33.2 – 33.4. They argue that there must be a duty of promptitude in relation to such an application and that what has happened here is that the application has been cobbled together very late in the day. Therefore their first submission is that the application here simply does not get to first base; the evidence is too thin and too defective even for the Articles to be become engaged.

If they are wrong about that they realistically recognise that it is in relation to the children that D is on the strongest ground. They do not seek to down-play the fact that these are potentially serious issues for these comparatively young children. However, this must be seen against the backdrop of a situation where D’s daughters are not actually known by his surname at school. They are actually known by A’s surname. The only reason that D advances for withholding his surname so far as the children are concerned is that it will identify his daughters. This, they submit, is over-stated; it is a long way from K v L where the children’s whole life style and upbringing would be undermined by the publicity, and where they might even have been exposed to the risk of kidnapping had anonymisation not been granted. In this regard they suggest it is significant to consider the decision of the House of Lords in Re S (A Child). One might argue that the little boy there had far greater call for his article 8 rights to be upheld; but they were not.

They draw attention to a number of differences between this case and ETK. In ETK there were no existing proceedings underway between the applicant, the wife or the work colleague; rather, this was a free-standing “privacy” application which engaged Articles 8 and 10. The central issue was the fact of an adulterous relationship between the applicant and X which was over, which the children did not know about and which would be likely to cause them distress. There were absolutely no issues of public interest in the true sense of the word engaged in the case. By contrast, in this case, the children are well aware of the relationship between C and D and of the fact that they had two children, now both adults, over the span of a very long relationship; and it is a case the primary focus of which is property rights. The vast majority of these cases involve former partners and they are heard in public without any difficulty.

As regards B they argue that it is very far-fetched to suggest that the quality of his evidence will be compromised if he has to be summonsed.

They firmly dispute that C opposes the application for any improper reason. The case began in 2010 and she could at any time have gone to the press if she wanted to see D pilloried, but she has not. The reason why she wants the case heard in the fullest way is that this is a case which will turn on which witnesses are believed. Each party asserts the other is a liar. Such hearings are especially well suited to being heard in public where “daylight is disinfectant” and the lying witness need fear exposure more than the truthful one.

In reply Mr Martin QC argued that the contents of D’s witness statement were perfectly admissible under the Civil Evidence Act 1995. It stands or falls on its own terms. The contents of para 5 of the witness statement derive from his own knowledge and observations. It is adequate evidence in a perfectly understandable form.

I have not found this an easy issue to determine. The balancing exercise is close to equilibrium.

When conducting the balancing exercise the following aspects seem to me to be key:

I have concluded, after having conducted the balancing exercise on the specific facts of this case in the way set out above, that the starting point or general rule is not displaced. The application is therefore refused.

Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed.

Following the hand-down of my judgment I refused D’s permission to appeal but made a reporting restriction order pending the determination of a permission application by D to the Court of Appeal. On 24 August 2012 Hughes LJ granted permission to appeal (on the basis that the case gave rise to important issues) and continued the reporting restriction order until the hearing of the appeal, which was fixed before a constitution to be presided over by the Master of the Rolls. Pursuant to the order of Hughes LJ the press were served with the appeal papers.

However, on 12 January 2013 the parties settled the main action and signed Heads of Agreement on that day. A consent order giving effect to the compromise is in the course of being drafted. By clause 20 of the Heads of Agreement C agreed to support D in an application to me to anonymise my judgment or to prohibit its publication. Further, she agreed to notify the Court of Appeal that she would not oppose D’s appeal (if pursued) or any further appeal against a refusal by me to agree to anonymise my judgment. If the application is granted then the appeal will be withdrawn.

I address the application first putting to one side the settlement of the main action.

If the main action were proceeding then obviously the question of anonymisation of this judgment would stand and fall with the question of anonymisation of the main proceedings. Plainly if the appeal fixed for 21 January 2013 were successful and an order made imposing reporting restrictions on the main proceedings then this judgment would be anonymised. Conversely, if the appeal were dismissed then this judgment would not be anonymised.

By parity of reasoning if the parties had, following my judgment, agreed that the main action should be disposed of by confidential arbitration then in my view they would be entitled to anonymisation of this judgment in order not to destroy the very confidentiality that arbitration is intended to supply.

But the main action is not going to happen. It has been settled. And clause 13 of the Heads of Agreement provides that the terms of settlement shall be confidential.

Therefore, quite apart from any other arguments, it seems to me that in order to secure the very confidentiality which the parties have agreed it is likely to be appropriate to direct that this judgment be anonymised.

I have read an email from the Director of Editorial Legal Services, Guardian News and Media Ltd, which argues that were I to direct anonymisation this would be a derogation from open justice and should only be done if it is proportionate and necessary.

I believe that it is proportionate and necessary to make the order for anonymisation. I found the issue to be finely balanced and on the specific facts of this case a significant factor militating in favour of refusing a reporting restriction order was the “daylight is disinfectant” argument referred to at para 65 above. Now that the parties have settled the main action this aspect has fallen away and the balance has clearly shifted in favour of such an order. Of course, had the parties settled before I heard the application for a reporting restriction order then their litigation would have been known only to them and their advisers. I believe it would be unfair to all members of this family were those details to be known publicly because the parties have settled later rather than sooner.

I therefore grant the application for anonymisation of this judgment.