Cooper-Hohn v Hohn

I have to determine what is essentially a case management issue although it has absorbed an inordinate amount of time which has not been factored into the timetabling of this case. It arises in the context of a substantive hearing which is ongoing before me in respect of financial claims arising from divorce proceedings between a husband and wife. Whilst the hearing is being held in private, it is one at which accredited members of the press have been present, as they are fully entitled to be.

The issue for determination at this point is the extent to which they should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.

In circumstances to which I shall come, I have heard much argument about the issue of what I have referred to during argument as "the default position". In other words, does the court start from the point that because of the confidential and essentially private nature of these proceedings, nothing can be reported unless and until the press have secured the court's permission to make public such aspects of the proceedings as they might wish to publish (the husband's position); or is the starting point one of unrestricted licence to the press to publish whatever they wish, subject only to the court, either of its own motion or on the application of either party, making a reporting restriction (the wife's position)?

That, until very recently, it appeared that I was going to have to consider this question as a general proposition and in the absence of a specific application seemed to me to be singularly unfortunate and to place the court in an invidious position.

The position has now been resolved by an application made on behalf of the media in circumstances which I shall explain in due course.

The issue arises in the following context. Mr. Martin Pointer QC and Mr. Geoffrey Kingscote represent the wife in these proceedings. The husband has an equally distinguished legal team in Mr. Lewis Marks QC and Ms. Elizabeth Clarke. When I received the papers and began my reading in preparation to hear this case, I had before me a significant quantity of material relating to the parties' financial position and detailed and lengthy skeleton arguments from counsel instructed on both sides. Those skeleton arguments descended into considerable detail in relation to the issues arising in these proceedings as they concern computation and distribution. In particular, the central issues in the case flowed from arguments about whether a departure from a starting point of equality of division was justified on the basis of a special contribution made by one of the parties, unmatched by the other.

I record those issues here because they have been referred to openly in a recent judgment handed down by the Court of Appeal to which I shall refer shortly.

What was not before me at that stage was any reference to issues which might flow from the attendance of the press at the hearing and the fact that aspects of the case were by then, to a significant extent, within the public domain as a result of its recent journey to the Court of Appeal. It appears that there had already been significant reporting of the case in the national and international media as a result of the judgment handed down by the Court of Appeal on 18th June 2014, just over a week before this hearing commenced.

To set the issue in its proper context I need to say something at this stage about the individual parties who are involved in this litigation. The husband is Sir Christopher Hohn; the wife is Jamie Cooper-Hohn, the mother of this couple's four children born during the course of a marriage which subsisted for 17 years. I am going to refer to the parties in this judgment as "husband" and "wife"; I do so for reasons of convenience only and intend no disrespect to either.

The husband has enjoyed a long career as an extremely successful hedge fund manager. It is information within the public domain that very considerable wealth built up during the course of this marriage has been channeled by the parties into a Foundation which is one of the largest private charities in the world. It is also a matter of public record that the assets of the Foundation run to several billions of dollars. The wife, who describes herself as a "philanthropist", a description which appears to me to be wholly apt, has been involved from the outset in the operation of the Foundation. Throughout the course of the subsistence of the marriage it is common ground that she has immersed herself with the husband in the whole ethos of the Foundation and in the identification of the beneficiaries of the substantial grants it has made.

It is accepted by the parties that the underlying assets of the Foundation are not assets available to them in the context of their financial claims arising on divorce, but their personal wealth is none the less significant. As was recorded in the judgment recently handed down by the Court of Appeal, they comprise investments in a fund worth no less than $1.15 billion, corporate management entities valued by the husband at $109 million exclusive of any value to be attached to their trading activity which, on the wife's case, might have made the underlying shares worth between £513 million and £872 million. Other investments amount to about $30 million. Pensions account for about $85 million and properties, a further $36 million. Thus, in total, the assets available for distribution have a value of at least $1.3 billion.

As is further recorded in the Court of Appeal's judgment, the wife's position is that an application of the modern law post Whiteand Millerand McFarlane should lead to a position where she, as a claimant wife, can ordinarily expect to receive one half of the resources built up during the marriage. The husband's position, as set out in open correspondence referred to in the judgment, is that her award should be restricted to 25% of the total assets on the basis of an assertion that the generation of wealth of this magnitude constitutes a special contribution which justifies a departure from what might ordinarily be a starting point of equality.

Neither of these parties has hitherto attracted any particular press attention outside their roles in relation to the Foundation or its related entities although each is, to some extent, a public figure as a result of their charitable endeavours. The husband is, of course, widely acknowledged to have achieved remarkable success in his career to date as an investment manager. It is common ground that neither has up to this point attracted what might be referred to as "celebrity" status in the media world outside those roles. Such press interest as appears now to be current in these proceedings arises, as far as I can discern, from the very significant extent of the assets (which exceed any case yet to have reached these courts) and/or from the legal principles which fall to be debated in the context of how the assets should be distributed between them at the conclusion of these proceedings.

It was further common ground, as these proceedings commenced before me on Tuesday of last week, 1st July 2014, that:

In these circumstances, and having completed most of my reading on the first day of the time set aside for this hearing, I asked my Clerk to raise the issue with counsel on both sides. The relevant part of his e-mail sent shortly after midday last Monday, 30th June, was framed in these terms:-

"The Judge is currently reading the papers in preparation for starting this case tomorrow. It seems inevitable that there will be a level of media interest in the case given previous reporting and the judgment of the Court of Appeal which has just been published.

"If either of you is taking a position in relation to the attendance by the media and/or reporting restrictions in the event of such attendance, her Ladyship would like to know in advance of tomorrow morning.

"Short written submissions by 4 p.m. this afternoon would be appreciated".

This prompted a response from Mr. Marks QC and Ms. Clarke in the form of a lengthy document from counsel, Mr. Guy Vassall-Adams which is dated June 2014. It runs to 46 paragraphs over 14 substantive pages and it is entitled: "Respondent's Skeleton Argument on Privacy and Publicity Issues". It was accompanied by a bundle which originally contained 16 separate authorities (there are now 20) and a witness statement from the husband which is also dated, and appears to have been signed on, 30th June 2014. That statement, according to paragraph 1, was made for two separate purposes: (1) to resist any application made by the wife and/or the media for a public hearing; and (2) to restrict reporting.

In the context of the second limb, the statement records the husband's wish, whether the hearing is held in public or in private, to prevent reporting of both the identities of the parties' children and commercially sensitive and confidential information relating to his business. In the final paragraph of that statement he records his acceptance of the right of journalists to attend the proceedings and the fact that he had (and has) no wish to exclude them. He also accepts that the court will want to give a public judgment in which he and the wife will be identified. However, he also "invites the court to prevent publication of confidential commercially sensitive material relating to the business of TCI".

What came back from Mr. Pointer QC and Mr. Kingscote on behalf of the wife shortly after four o'clock that afternoon was a note recording, first, their intention to seek a direction from the court that there should be a restriction on the ability of the press to publish any material which might identify the children, their schools or their home addresses, and, second, vociferous complaints about the absence of any application or notice from the husband's legal team of an intention to seek an order in respect of reporting restrictions. They complained about the fact that the husband's witness statement and the skeleton prepared by Mr. Vassall-Adams, whilst received just before one o'clock that day, had in their view been prepared some time ago and withheld until the first day of the hearing. They complained about a failure to comply with the requirements as to notice set out in the 2010 Family Procedure Rules and concluded that the application by the husband would need to be adjourned and served in accordance with the requirements of the Rules with sufficient particularity of the relief sought.

That was followed by an e-mail from Mr. Marks shortly before 5.30pm on the same evening clarifying his client's position and explaining that their skeleton argument had been premised on the basis that the hearing I was about to conduct would be a private hearing with the media in attendance. In anticipation that I could expect an application on behalf of the media for permission to report the case, Mr. Vassall-Adams' skeleton argument had been sent to me in order that I might have some advance notice of the principles to be applied. Mr. Marks explained in response to Mr. Pointer's criticism that there was no obligation on the husband's legal time team to make an application for either a private hearing or for an order restricting publication. Since Family Proceedings Rule 27.10 created an expectation that a private hearing was the default position in the absence of a specific court direction for a hearing in public, and none has been made in this case, the media would need to apply to court if it wished to report any details over and above the limited matters permitted by statute or as a matter of law.

That, then, was how the position stood at 10.30am on the first day of the hearing, Tuesday of last week. Present in court on that occasion were the full teams of leading and junior counsel representing the parties in financial remedy proceedings, together with their solicitors. Also present were Mr. Vassall-Adams and Mr. Adam Wolanski, counsel instructed on behalf of the wife, who had prepared a skeleton argument in response to the skeleton argument that I received from Mr. Vassall-Adams the previous evening. Mr. Wolanski's document was delivered to me in Chambers shortly before I came into court. Also in court were various members of the press who each had in advance presented to the court evidence of their formal accreditation.

The issue of publication of information which might have led to identification of the children was dealt with in short order. The parties had agreed to the terms of an order to which the press raised no objection. I made the order which was subsequently displayed, as is the usual practice, on the door of the court and has remained so throughout the continuation of this hearing.

Mr. Pointer, at the outset, identified the remaining issues in relation to reporting in these terms. He said that what it boiled down to was a debate between the legal teams as to whether or not the press was inhibited in reporting matters that were to be ventilated in court absent a restriction order in the light of the general law. The view taken by the wife's team was that it was not the convention for me as the Judge to express an opinion about that, absent a formal application.

Mr. Vassall-Adams addressed me on the position as it appeared to the husband's team. It was this. Whilst the media were free at any time to apply to report any matter arising during the proceedings, in advance of any ruling by me in the event of such an application, members of the press were precluded by general case law (and by the Court of Appeal's (2002) decision in Clibbery v. Allanin particular, confirming as it did the implied undertakings as to complete confidentiality) from publishing anything at all which they hear during the course of the hearing.

That prohibition, contends Mr. Vassall-Adams, extends not only to financial information disclosed by the parties during the course of the proceedings to date, but also to facts and matters arising from the manner in which their family lives were led. He confirmed that the husband was not making any application to exclude the press and was content for them to remain. The fact that the proceedings were underway and they concerned these parties was information which was in the public domain and that was information which could legitimately be the subject of press report.

Over and above that, there was and need not be any application by the husband to restrict the content of press reporting because everything which took place in the context of this hearing was protected either by the implied undertaking of confidentiality or by the Judicial Proceedings (Regulation of Reports) Act 1926 (the "1926 Act") which applied to these proceedings and operated as an additional statutory basis for a specific limitation on what matters could and could not be reported by the press.

Mr. Wolanski's skeleton had made it clear that whilst the wife was adopting a position of complete neutrality on the issue, it was not accepted that the 1926 Act applied to reports of these proceedings. He further contended that the media was not in any sense constrained by an implied undertaking of confidentiality since it existed as between the parties but did not operate so as to bind the media. He accepted, however, that there remained considerable uncertainty on the point.

At that stage there was no application by or on behalf of the press. There was no application by the husband and none by the wife. Each of the parties was proceeding from the basis of their respective default positions. We had ahead of us nine days of a hearing which had been timetabled (with some slight provision for slippage) to absorb all of that time. The members of the press were clearly in a difficult position and their concerns were voiced to me by Mr. Brian Farmer one of their number from the Press Association. I had made it clear by that stage that it was not my function to provide advice to the press representatives as to what they could and could not publish or whether the 1926 Act might expose them in the event of publication to criminal sanctions.

In so doing I had very much in mind the views expressed by Munby J (as he then was) in Spencer v Spencer [2009] EWHC 152 (Fam) at paragraph 21. In the absence of an application and unless I made orders in the absence of such an application, any views which I might express would constitute no more than views which they were free to accept or reject. Advice to the press, I said, was outside the proper ambit of my function.

During the course of early exchanges with counsel about how matters should proceed, I had expressed a provisional view to the effect that, following further recent observations of Sir James Munby less than two months ago in his capacity as President of the Family Division in Rapisarda v Colladon [2014] EWFC 1406, it was certainly arguable that the 1926 Act operated to prevent publication of anything over and above the accepted matters referred to in that statute. I had warned the press that they should seek advice from their own legal departments or elsewhere before publishing any material which might engage its sanctions.

Section 1(1)(b) of the 1926 Act operates in terms to impose specific restrictions in any judicial proceedings for the dissolution or nullity of marriage or for judicial separation or for the dissolution, annulment or order for separation of a civil partnership. In these cases, it is unlawful for the press to publish anything except the following:-

(i)

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

(ii)

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

(iii)

submissions on points of law and the summing-up of the judge and findings of the jury (if any) and judgment of the court.

Both Mr. Hudson and Mr. Wolanski have taken the point in their submissions to me that the 1926 Act has no application to these financial remedy proceedings because it was enacted some 88 years ago to deal with an entirely different situation, i.e. injury to public morals arising out of the reporting of what were then deemed to be scandalous and often salacious details of divorce cases, often determined before a jury.

Its purpose in this context was to prohibit the publication of material which might offend public morals and decency. That is not a new point. The absence of modern authority on the application of the Act to the field of financial provision after divorce was the very point which the President described in the recent Rapisarda case as "a truly disturbing state of affairs".

It was considered by Munby J (as he then was) in first instance in Clibbery vAllan. He was then of the view that the 1926 Act did apply to what were then referred to as ancillary relief proceedings. When the case reached the Court of Appeal, Thorpe LJ took a different view, although he emphasised that his opinion on the matter was "provisional". It was in any event obiter.

The issue surfaced once again before Munby J in Spencer v Spencer although in that case he declined to make any ruling as to whether the 1926 Act applied to reports of the ancillary relief application which was then before the court. He made the point that the view which he had expressed at first instance in Clibberyv Allan had been obiter since he was not dealing in that case with a claim for ancillary relief.

When Bradley DJ came to consider the point in A v A(Reporting Restriction) [2013] 2 FLR 947, a case in which Mr. Wolanski appeared to represent the press, she too remarked upon the absence of any binding decision as to whether the 1926 Act applies to financial remedy proceedings. However, counsel for the husband, who was opposing publication of the report of the proceedings, made clear in his submissions that he was not relying on the provisions of the Act. On that basis the judge left to one side the aspect of whether it applied and proceeded to determine the issues on the basis of a consideration of the balance to be struck between the parties' Convention rights under Articles 6, 8 and 10.

As I have said the last word on the subject comes from the President himself in the Rapisarda case. He was able to reach his conclusions as to the existence of a discretion which arises under the terms of the section 1(4) of the 1926 Act in relation to the "publishing of any notice or report" in pursuance to directions given by the court. That section, he concluded at paragraph 39 of his judgment:

"... plainly leaves the judge free to include in or exclude from his judgment whatever material he thinks fit. In that sense the judge has a discretion – and, in my judgment, a discretion which is fettered only by the dictates of the judicial conscience."

That discretion, he concluded in paragraph 40, applied equally to the directions which the judge was empowered to give in relation to any notice or report. He said this:

"In my judgment it embraces any direction of the court, whether a direction that something is to be published or a direction that something may be published. Likewise, the other words are quite general; they are neither defined nor circumscribed. Although the word 'report' will no doubt include such things as a medical or other expert report to the court, whose publication the judge then authorises, I see nothing in the 1926 Act to limit it to such documents. In my judgment, the word 'report' is apt to include a report of the proceedings."

Rapisarda v Colladon was not a case about financial remedies. The President was dealing with an application by the Queen's Proctor to dismiss a large number of divorce petitions and set aside decrees of divorce obtained in the course of "a conspiracy to pervert the course of justice on an almost industrial scale". He was sitting in open court to hear the case. The issue arose as to the extent to which the proceedings could be published and the court had to consider the impact of the 1926 Act on the potential reporting of the case.

Having concluded that a discretion did indeed arise under the terms of section 1(4) of the Act, the President gave leave to publish the whole of the proceedings. At paragraph 31 of his judgment he went on to say this:

"Much more important in the real world is the ongoing uncertainty as to whether the 1926 Act applies to the reporting of ancillary relief (financial remedy) proceedings."

It was the absence of any clarity over this issue which he described in these terms:

"This is truly a disturbing state of affairs. Something needs to be done, and, it might be thought, done as a matter of urgency."

As to the court's ability to relax reporting restrictions in financial cases such as the one with which I am currently dealing, the President concluded his judgment with these words:

"On the assumption that the 1926 Act perhaps applies to ancillary relief (financial remedy) proceedings, judges may in future wish to consider whether to exercise discretion in such cases under section 1(4)."

As to how we might continue with the hearing in the absence of a resolution of this issue, and there was then no application by anyone before me, I suggested to counsel that in terms of case management we should proceed on the following basis. If matters arose as the case developed, I would deal at an appropriate stage with either an application to exclude the press or an application by the press for permission to report. It was at that stage that I heard Mr. Pointer's opening.

Later that day, the wife gave her oral evidence-in-chief, the principal substance of which was a narrative account of the history of her dealings with the Foundation over the years since it had been set up. On the second day of the hearing I conveyed to everyone in court an approach which had been made to me by various members of the press through my clerk for further clarification as to what they could and could not report from the previous day's hearing. I had indicated that I was not prepared to have that dialogue in the absence of counsel.

In the continuing absence of any formal application from the press, I expressed my view that consideration would have to be given as to how we were to proceed, since both Mr. Marks and Mr. Vassall-Adams continued to make it plain that they would not be making any application to exclude the press, which application would, of course, have provided the platform for a full ventilation of these issues.

Mr. Pointer proceeded to cross-examine the wife. Later that afternoon Mr. Vassall-Adams invited me to make a ruling that there should be no reporting of the evidence which was to be given by the husband in-chief or in cross-examination until I had heard full argument on whether or not the submission made on behalf of the husband as to the default position adopted was well-founded and correct.

I acceded to Mr. Pointer's request to hear argument on the point in advance of any evidence given by the husband, notwithstanding that there was at that point no substantive application before the court from the press. That position was to change as a result of an e-mail sent to the court overnight by Howard Kennedy LLP, solicitors acting on behalf of a number of media organisations.

As a result, when the case resumed on Thursday of last week, 3rd July, present in court was counsel instructed to represent various media organisations, Mr. Anthony Hudson. He summarised the position of the media which was to the effect that there were no reporting restrictions in relation to this hearing over and above those relating to the children as a result of the order that I had already made.

If he was wrong in that submission, he invited me to adopt one of two alternative courses. I should, from this point, either sit to hear the case in public or make a direction under section 1(4) of the 1926 Act giving the media liberty to report the proceedings. That, he contended, would open the way for the husband to seek specific orders restricting the publication of reports in these proceedings. He made the point that the application or otherwise of the 1926 Act may in fact be what he described as "a bit of a red herring", since any ruling I made would amount to no more nor less than guidance to the media as to whether or not they risked breaching the provisions of that Act should they go ahead and publish.

In these circumstances, and very helpfully in my view, he proposed to cut through that conundrum by making an application for a specific direction under section 1(4) of the Act on the assumption that it applies, although his primary position remained that it did not. As he put it so succinctly to me:

"It seems to us that if we make that application, then it should bring to an end, if I may say so, the jockeying for position between petitioner and respondent and will crystallize the issue for the court to determine what can and cannot be reported of this hearing in the context where the media are present during the hearing."

While Mr. Wolanski holds to his position on behalf of the wife that the 1926 Act does not apply to these financial remedy proceedings, it seems to me that his expressed neutrality on the issue of reporting relieves me of any obligation to determine the issue from the foot of any submissions raised on behalf of the wife in relation to the 1926 Act. I shall, of course, have to consider in some detail the substance of the other submissions he makes in relation to the blanket restriction on reporting which is Mr. Vassall-Adams's primary position.

It was thus from the foot of that application that I heard detailed submissions from Mr. Vassall-Adams, Mr. Hudson and, on Friday morning of last week, from Mr. Wolanski as to these difficult and as yet unresolved issues on to which I shall now come.

Before I do so, I make it plain that I am considering the position on the facts of this case. Whilst I shall inevitably have to resolve the current impasse between the diametrically opposed positions taken by Mr. Vassall-Adams on behalf of the husband and Messrs. Hudson and Wolanski (who are in basic agreement as to the correct approach) on behalf of the media and the wife, I am not in any way seeking to lay down principles of general application.

Each case, and the balancing exercise involved, is a highly fact-specific exercise. In order to resolve the issues which presently confront me in this case and in terms of effective ongoing case management of this part heard matter, I shall have to resolve the current conflict as to the default positions adopted by the parties and I do so in the context of the helpful intervention of the media, which now gives me that opportunity.

It is intended to provide clarity for the members of the press and other media representatives who may find themselves sitting in court during this hearing, as to what they can and cannot report, absent any further applications which may or may not be made either subsequent to or consequent upon this ruling.

The fundamental issue, as it seems to me, is the extent to which the legitimate entitlement of the media to attend private financial hearings introduced by the recent change in the Family Procedure Rules 2010 has impacted upon what has always been the accepted position up to that point. Private family hearings conducted away from the eyes of the media were always considered to be entirely confidential to the parties and remained so even after the conclusion of those proceedings, absent any permission to report those proceedings without the protection of anonymity or redaction and/or an appeal.

I have, over the course of more than two days, heard and read very detailed submissions as to how the law has developed and where we now stand. Because I am conscious that we are now starting the second week of this final hearing and have yet to reach the husband's evidence, I cannot in this judgment hope to do full justice to the range and breadth of counsel's industry.

The recent developments in the law on this area have been set out in much more detail than time will permit me to record this morning in two recent authorities. These trace comprehensively how we have reached where we are today in terms of the attendance by the media in private family hearings and their ability or otherwise to report what is said in the course of proceedings.

The first is a decision of Mostyn J in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam). That case concerned a claim by one of the parties to the proceedings to preserve his anonymity. In terms, his application was for the redaction from the court's final judgment of any details or information which might identify the parties, other individuals or places. The main action concerned a claim pursuant to section 14 of the Trusts of Land and Appointment of Trustees Act 1996. The parties involved had never been married to one another, and the proceedings were accordingly listed for hearing in open court as is the usual practice.

In the course of his lengthy judgment, Mostyn J considered the law as it applied to that case in some detail. Because part of the argument relied on by the litigant seeking anonymity was anchored to a comparison of the treatment of divorcing spouses and the relative privacy according to those couples, he went on to consider the development of the law in that jurisdiction and the extent to which the media then had access to attend the hearings of, and report, financial remedy proceedings following divorce. His exposition of the law led him to express certain views about where the law then stood largely as a result of observations that, far from being a "model of clarity", judges were sailing in what he described as "turbid waters". His views in this sense are strictly obiter, although I shall come back to them in due course.

What seems to me highly relevant in this context is that his description of those turbid waters was to be echoed in the clearest terms some two years later by the President in the much more recent case of Rapisarda to which I have already referred. Judgment in that case was handed down on 8th May 2014, less than three weeks before this case commenced.

The President charted a similar journey through recent developments and authorities, including Mostyn J's decision in W v M and the more recent decision of Bradley DJ in A v A. As I have said previously, in Rapisarda the President had been sitting in open court to consider applications made by the Queen's Proctor in circumstances which he had described, as I have said, as a conspiracy to pervert the course of justice on an almost industrial scale.

Despite his expressed concerns over the absence of any clarity as to the application of the 1926 Act, we are no further forward. Nothing has happened in the 2½ months since then to shed any further light on the subject, and so I have to do my best to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap.

The President was able to navigate his way through to a satisfactory solution of the particular issues which confronted him by finding that section 1(4) of the 1926 Act conferred on him the discretion to make a direction authorising the publication by the media of a report of the whole proceedings. In this context it is important to remember the situation in which that issue had arisen. Given the importance of a public judgment on the applications by the Queen's Proctor and the scale of the conspiracy involved it was hardly surprising that the President found a route which enabled him to exercise a discretion to allow full publication.

The relevance of his judgment for the present purposes lies more in the observations which he made, admittedly obiter, in the context of the extent to which reporting under the 1926 Act was permissible in the context of financial remedy and proceedings. I remind myself that I am being invited to proceed on the basis that the Act bites on the proceedings with which I am currently dealing.

It is the existence and exercise of that discretion which underpins Mr. Hudson's invitation to me to determine what can and cannot be reported in the context of this case. I pause there simply to say this. In my view it may not be quite as simple as that because the case advanced on behalf of the husband is that this is a course I may well be able to take at an appropriate juncture, but only in the event of a request by the media for permission to report a specific part of the proceedings or a specific aspect of the evidence which has been put before the court.

Mr. Hudson's very welcome intervention in this case only assists to resolve the issue if and in so far as I reject Mr. Vassall-Adams's principal submission, that in the absence of a request to publish a specific piece of evidence, the default position remains that everything is preserved by the confidentiality of the proceedings. I shall come on to consider in due course how it is said that confidence arises and the extent to which it lasts.

Mr. Vassall-Adams accepts that I can, of course, consider such an application and can make a decision on the basis of a careful evaluation of all relevant matters which will, in the usual course, involve a specific balancing exercise between all the competing rights and interests which are then engaged.

I test that proposition by asking myself how I might accede to Mr. Hudson's invitation and exercise a discretion under section 1(4) to prescribe now that which can and that which cannot be reported. As yet, all that the media has heard is Mr. Pointer's opening, the wife's oral evidence and legal argument and submissions on the issue which I am now considering. In terms of Mr. Pointer's opening and the documents to which he took me during the course of that opening, it might be said that there was little of specific interest to the general public which was either outside the parameters of what is already in the public domain, or a matter of public record as a result of (a) the judgment of the Court of Appeal and/or (b) the accounts and other financial information about the Foundation and other onshore entities lodged at Companies House.

The manner in which the wife is advancing her claims in these proceedings has already been advertised during the hearing in the Court of Appeal and is recorded on the face of the judgment. The real focus of media attention, I suspect, will be directed towards the evidence which the husband is to give. That is why I acceded to Mr. Pointer's invitation to determine the issue of reporting in advance of his entering the witness-box.

At this stage, I know not whether his evidence-in-chief or Mr. Marks' cross-examination may lead us to trespass into areas which could properly be regarded as areas of commercial sensitivity or confidence which might, for example, affect the share prices of a publicly quoted public. That is one of the grounds recognised in paragraph 5 of practice direction 27(b) as one of the reasons which might justify the exclusion of the press from court.

Thus, to my mind there are real and substantial difficulties in a course which requires me to pre-determine now what can and cannot be reported when we are still in the very early stages of the substantive application. Its resolution ultimately lies in a full consideration of the limits of this case in the nature of the confidence which flows from the observations and conclusions of the Court of Appeal in Clibberyv Allan as those have been applied and interpreted in subsequent authorities to which I have been taken during the course of arguments. Nevertheless these are matters on which I am going to have to take a view and make a ruling.

Before moving to consider the competing arguments put before me, I propose to say something about established principles over which there is no issue prior to the recent changes in the rules which permitted the press to attend financial remedy hearings.

The fundamental principle and the starting point was always and remains that of open justice. It not only promotes the rule of law. It also promotes public confidence in the legal system: see Scott v Scott [1913] AC 417. There are two aspects flowing from that principle: (1) proceedings should be held in open court to which both the public and media are admitted and (2) nothing should be done to discourage the publication to the world at large of accurate reports of what has taken place in court.

Notwithstanding the subsequent entrenchment of those principles by the coming into force of the Human Rights Act 1998 and Articles 6 and 10 of the European Convention on Human Rights, there are and always have been exceptions to that principle. English law recognises restrictions on both access to proceedings and reporting of them. Such restrictions flow from statute law and from rules of court made under statute.

For the purposes of the application before me, I shall need to consider both the Family Proceedings Rules 2010 and the 1926 Act. Whilst section 12 of the Administration of Justice Act 1960 excepts from the ambit of potential contempt proceedings the publication of certain information relating to proceedings held in private, in the context of divorce these relate in the main to proceedings concerning children. It is accepted that there is nothing in the 1960 Act which assists me with the resolution of the issue which I have to decide.

In addition, the High Court has jurisdiction either by virtue of section 6 of the Human Rights Act and/or in the exercise of its inherent jurisdiction to strengthen or relax the default position in relation to both attendance at court hearings, to documents and to the reporting of cases. In exercising such a discretion it has to conduct what has been called “the ultimate balancing exercise” in terms of the competing convention rights which are engaged in any particular case: Re: S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 FLR 591.

Before 27th April 1989 financial proceedings flowing from divorce were always heard in private at first instance. In the absence of being able to settle matters with or without the assistance of their advisers, there was always the guarantee of an entirely confidential final hearing before a judge at whatever level the proceedings were allocated. As a general rule, and because of the essentially private nature of these hearings, there was no question of an attendance at those hearings by either members of the public or members of the press.

As Thorpe LJ put it in Clibberyv Allan at paragraph 93 of his judgment, delivered in 2002, some seven years before the rule changes took effects:

"Judges, practitioners and court staff are vigilant to ensure that no one crosses the threshold of the court who has not got a direct involvement in the business of the day ... This strict boundary has always been scrupulously observed by the press."

The European Court of Human Rights has ruled conclusively that family proceedings held in private do not breach Article 6 of the Convention: B v United Kingdom; P v United Kingdom [2001] 2 FLR 261. That was where we were prior to 27th April 2009. The history of the consultations which led to the change in the law which permitted the attendance of private hearings of members of the press has been explored in detail in Spencer v Spencer and I do not repeat it here.

For present purposes it is sufficient to note that the attendance of accredited media representatives was always to be subject to a specific power of exclusion. Of significant importance, too, was the government's thinking expressed in the White Paper (Family Justice in View CM 7502) that an essential safeguard for children and families in circumstances where family proceedings were to be opened up to the media was legislation which specifically prevented certain information from being published without the permission of the court. The need for clear revision of the law was expressed in the White Paper in these terms: "Children and families need to be confident that their privacy will be protected."

As Mostyn J has explained in Re Wv M, whilst Parliament duly enacted the promised revision to the law on reporting restrictions, Part 2 of the Children, Schools and Families Act 2010 was never brought into effect. Significantly, provisions which would have made it a contempt of court to publish details which identified an individual as someone who is involved in proceedings or which revealed certain sensitive information was never enacted as had originally been envisaged as an essential counterbalance to the admission of the press to private proceedings.

The position now, and with effect from 27th April 2009, and the default position in relation to all hearings of financial remedy applications, is that the hearings take place in private, save for any discrete hearing which is listed in the course of those applications as what we commonly refer to as Financial Dispute Resolution Hearings, (described in the rules as "judicially assisted conciliation or negotiation”: rule 27.10 FPR 2010).

The change which permitted the attendance at those hearings of accredited members of the press is to be found in rule 27.11(3). Members of the press are permitted to attend because they are referred to specifically as being within an excepted category of persons who are excluded from the general provision that "no person shall be present during any hearing" other than the excepted class.

By virtue of rule 27.11(3)(b) the court can direct either on its own initiative or pursuant to an application that the press shall be excluded where it is satisfied that justice will otherwise be impeded or prejudiced. By virtue of rule 27.11(5), it is open to any party to or witness in the proceedings to make representations for orders restricting the attendance of the press (amongst others) from the hearing.  

Practice Direction 27B paragraph 5.4 gives two specific examples of a situation in which it might be said that the presence of the press gives rise to a situation where "justice will otherwise be impeded or prejudiced in the event they were to remain in court".

The first is a hearing in relation to financial matters where the information being considered by the court includes price sensitive information (such as confidential information which might affect share price of a publicly quoted company).

The second relates to a situation where a witness, other than a party, 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 and frank evidence in their presence.

As is clear from paragraph 2.3 of the Practice Direction,

"The provisions of the rules permitting the attendance of media representatives and the disclosure to third parties of information relating to the proceedings do not entitle a media representative to receive or peruse court documents referred to in the course of evidence, submission or judgment without the permission of the court."

Paragraph 2.4 continues:

"The question of the attendance of media representatives at hearings in family proceedings to which rule 27.11 and this guidance apply must be distinguished from statutory restrictions on publication and disclosure of information relating to proceedings which continue to apply and are unaffected by the rule in this guidance."

Paragraphs 3 and 5 of the Practice Direction deal with the aims of the guidance provided and the exercise of the court's discretion to exclude representatives of the media. The court has a clear duty to conduct a full and careful balancing exercise and reach a value judgment as to the conflicts which arise.

If members of the press are to be excluded, paragraph 5.2 of the Practice Direction states that the court must:

"consider whether the reporting or disclosure restrictions, which apply by operation of law or which the court otherwise has power to order, will provide a sufficient protection to the party on whose behalf the application is made or any of the persons referred to in paragraph 3(a) of the rule."

Neither the rule nor the Practice Direction provides any explicit assistance on the extent to which the press are free to report what they hear in court. They attend under the new rule as of right unless and until the court exercises a discretion to exclude them on one of the grounds listed in rule 27.11(3). They are prevented from seeing documents about which evidence is given, and it is clear that one of the factors which the court has to consider in the context of exclusion is whether or not the imposition of reporting or disclosure restrictions will provide sufficient protection to the party who seeks their exclusion.

Mr. Vassall-Adams relies upon the fact that the structure of the new rules remains the same pre - and post the changes implemented in 2009. There continues to be an embargo on access to court documents; the proceedings continue to be private proceedings. He has taken me to the decision of the then President, Sir Mark Potter in Child X (Residence and Contact Right to Media Attendance)[2009] EWHC 1278 Family. In that case the court was concerned with proceedings under the Children Act 1989 and the new rule 10.28 which permitted media representatives to be present at private hearings of children's proceedings. The President held that the new provisions did not affect any substantial change in the rights of the media, once admitted, thereafter to report the detail of the proceedings to the public who had no such right to be present.

An integral part of that decision was the application of section 12(1) of the Administration of Justice Act 1960, the effect of which was to forbid disclosure of the details of proceedings concerning children save to a very limited extent. The sanction for breach of those provisions was the threat of contempt in respect of organs of the media who transgress its terms. Those provisions were underpinned by section 97(2) of the Children Act 1989 and section 39(1) of the Children and Young Persons Act 1993 which prevented publication to the public at large, amongst other matters, of any material which was intended or likely to identify the child who was the subject matter of the proceedings or any material identifying his name, address, school or a photograph of the child. As the President said at paragraph 38 of his judgment:

"The net result is that while the press are entitled to report on the nature of the dispute in the proceedings and to identify the issues in the case, they are not entitled to set out the content of the evidence or the details of the matters investigated by the court. Thus the position has been created that whereas the media are now enabled to exercise the role of 'watchdog' on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of judges, they are unable to report in their newspapers or programmes the identities of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader viewer".

That decision does not provide a complete answer to the issues arising in this case because, in the absence of any application of the Administration of Justice Act 1960, the protection of the statutory framework here is limited to the 1926 Act. Further, nothing which the President said in Re X touched upon the implied duty of confidentiality, which is a cornerstone of the husband's case as advanced by Mr. Vassall-Adams, but which does not exist in proceedings relating to children, save in so far as they may be proceedings under section 15 and Schedule 1 of the 1989 Act.

Thus, I need to return to the rules themselves and the guidance offered in the relevant practice direction. If exclusion is the mechanism by which the press will be prevented from hearing (and thus reporting) the evidence which the court or a party wishes to remain confidential to the proceedings, does it necessarily follow that, absent an order for exclusion, they are free to report anything else they might hear during the course of proceedings?

Mr. Hudson and Mr. Wolanski would say, and do say, that is exactly the position in circumstances where there is no duty of confidence as between the media and the parties and I shall need to come on to their submissions in a little more detail shortly.

Of course, if that is the position, as a matter of law, it would be open to the husband to make an application either to exclude the press or to impose reporting restrictions. He does neither, which is why I am having to deal with this issue from the foot of an application made on behalf of the media which seeks more general clarification on what they can and cannot report of what they hear whilst they remain in court.

Because of the way in which Mr. Vassall-Adams was developing his submissions in respect of what I hope he will forgive me referring to as a "wholesale embargo" on the ability of the media to report these proceedings, I did not have before me any “fallback position” in terms of the specific categories of information or documents which the husband would say attracts the court's protection in the form of a specific restriction on publication.

At my request, and very helpfully, the husband's legal team agreed to provide me with a draft order setting out in terms the precise ambit of the restriction they would seek in the event that I declined to accept the husband's primary case that there shall be no reporting at all. I now have that draft order. Paragraph 2 says as follows:

"The media shall be prohibited from publishing any such report that refers to or concerns any of the parties' financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors' correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain".

Whilst there is nothing in the relevant rule or the practice direction to assist in relation to the extent of the media's ability to report proceedings, paragraph 5.2 of the practice direction makes it absolutely plain that what are referred to as "reporting" and "disclosure" restrictions which arise by operation of law are unaffected by the new rule. These matters were referred to in a paper produced in July 2011 which is entitled: "The Family Courts, Media Access and Reporting". In a preface to that document, the then President, Sir Nicholas Wall said this:

"There is no more difficult issue in family justice than the reporting of cases. There is a tension between concerns about 'secret justice' and legitimate expectations of privacy and confidentiality for the family. Both standpoints are valid and the question is whether they are irreconcilable. Against this background and under the wise tutelage of the Lord Chief Justice a group of lawyers and journalists, including representatives from both the print and broadcast media, have got together to talk to each other. As part of these discussions they commissioned a paper which would set out a statement of the current state of the law in this most complex area."

The reports' authors -- and it would be churlish not to mention that Mr. Wolanski was one of the two authors -- consider at paragraph 71 to 75 of the report, the limitation on general reporting which is likely to flow from the implied undertaking of confidentiality which was explained and confirmed in the Court of Appeal's decision in Clibberyv Allan and in cases decided after the change in the rules. They conclude in paragraph 74:

"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 which is disclosed under compulsion unless that information passes into the public domain".

That, of course, raises the question as to whether or not information put before a court sitting in private, with media representatives lawfully in attendance, has entered the public domain. If so it might well be argued that the implied undertaking ceases to have effect. On this particular point, the authors of the report remark that, "This is not a matter which has received judicial consideration." That remains the position, although one can legitimately look to see what views other judges have expressed, albeit that in the context they are not binding authority but simply obiter.

In Spencer the President was considering an application made jointly by a husband and wife to exclude the press from the final hearing of their ancillary relief proceedings. The rule change, which permitted the attendance of the media at that hearing, had occurred only a matter of months before the listing of that hearing. The parties, represented by Mr. Marks QC and Mr. Mostyn QC (as he then was) had argued that the high profile of the couple involved, the Earl and Countess of Spencer, justified the exclusion of the media. It was not being asserted in that case that there were considerations of commercial sensitivity in the financial information which was likely to be put before the court or other information of a confidential nature. It was acknowledged that, despite the high profile of the parties, the case would fall to be decided on ordinary principles of need, because of the fact that the vast bulk of the available wealth emanated from dynastic inheritance.

At paragraph 41-43 of his judgment Munby J (as he then was) said this:

"41.

The fact that litigants in a Family Division, as indeed elsewhere, have important rights to privacy and confidentiality protected by Article 8 is so well recognised, both in Strasbourg and domestic jurisprudence, that I need not cite authority for the point. Plainly, on the other hand, the media have their rights under Article 10. Not, in the present case, a right to receive information from the parties (because neither of the parties wishes to give them any information) but a right to receive information by sitting in court and, subject to any other restraints which there may be on their reporting of the proceedings, their right to impart that information to the world at large.

"42.

But there are also, as it seems to me, important rights protected by Article 6. There is -- again there is much Strasbourg and domestic jurisprudence, which there is no need for me to recite in detail -- a well recognised public interest, an interest of the community as a whole, in promoting the administration of justice, in maintaining the authority of the judiciary and in maintaining the confidence of the public at large in the courts. And that public interest is protected by Article 6, quite apart from Article 10. But that interest typically pulls in two different directions. Viewed from the perspective of the media, and the market in 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 Convention version of the age-old Benthamite principle) the judges and other participants in the process remain visible and amenable to comment and criticism. This is the argument that the Article 6 points in the direction of openness, specifically in this context in the direction of the media being permitted to remain in court.

"43.

On the other hand, and the Article 6 jurisprudence equally recognises this right, there is the vital importance, as viewed from the perspective of the participants in the process, that if the administration of justice is to be promoted, and public confidence in the workings of the family court is to be maintained, then, so it is said, one needs to preserve the privacy of such proceedings, there being, for example, an important public interest in preserving faith with those who have launched upon the proceedings and given evidence in the family court in the belief that the proceedings and the evidence would remain confidential."

It is important to remember in the context of this particular balancing exercise that the court had before it in Spencer a specific application to exclude the press from the entirety of the proceedings. There is no such application by anyone before me. However, in refusing the application for exclusion, Munby J said this at paragraph 63:

"Truth be told, the only circumstance put forward in the present case for excluding the media from the hearing at all is the high profile of the parties and the fact that they, unlike they and those who live less public lives, will be exposed, subject to whatever reporting restrictions there may be, to the publication of matters to which they, no doubt like all litigants in ancillary relief proceedings, would prefer not to be exposed in public. It may be that, because of their public profile, they will not merely be exposed to the publication of facts and matters which they prefer to keep private, but also be exposed to comment of the kind which they would rather not be exposed to. But is that of itself a reason for making an order different from the order which one would make were that factor absent?"

Whilst his Lordship accepted that every case would turn on its own facts, and that the public standing of the parties involved was not an irrelevant consideration, it was not enough in that case to tip the balance in favour of excluding the media.

Those passages might well suggest that the court in Spencer was of the view that, absent reporting restrictions, the press would have been free to report the proceedings entirely as they saw fit. It certainly appears from the postscript to the report that Mr. Marks had indicated upon receipt of the judgment that it was his intention to apply the following day for a contra mundum injunction to restrain in part a reporting of the proceedings. In the event the case settled and so the issue never arose.

I entirely accept, as Mr. Vassall-Adams has pointed out, that Munby J (as he then was) never heard full argument on the point and might have expressed different views if he had.

Certainly Mostyn J was of the view in W and M that the failure to implement Part 2 of the 2010 Act, which would have brought statutory restrictions on reporting into play, does not mean that, absent a reporting restriction order, the media are definitely free to report everything they hear and observe in court.

At paragraph 9 of his judgment he said that their freedom to do so depends upon two factors; first, whether or not the 1926 Act applies and, secondly, whether the implied undertaking remains operative. His view (obiter) on where we were sailing in these turbid waters is expressed in paragraph 50 of his judgment where he said this:

"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 inequity in some shape or form, should that starting point be departed from. As the White Paper put it, 'families need to be confident 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 paragraph 17 above warning of the danger of anonymisation leading to a curtailment of 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 remedy 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."

The application made by Mr. Hudson on behalf of the media now provides me with the opportunity to consider the imposition of reporting restrictions in the context of the husband's position that they have an entitlement to publish nothing.

Because the engagement of the 1926 Act is the basis upon which I am invited to proceed, I turn now to consider the second issue raised by Mostyn J as a potential restriction on the media's ability to report proceedings: the survival of the implied undertaking regarding the confidentiality of documents disclosed in financial remedy proceedings. However, because of the way in which the husband has argued his case before me, that will necessarily involve a wider consideration of the law as it currently stands in relation to the ambit of the privacy extended to parties in the context of financial remedy proceedings and, in particular, to the couple whose application for financial remedy orders is presently before me.

So I turn now to the specific submissions made to me by counsel. Mr. Hudson's case rests on six points: (1) The husband's reliance on the implied undertaking is misplaced and wrong; (2) If he is wrong about the inapplicability of the implied undertaking, there are no other restrictions on what the media can report in relation to this hearing unless the court makes a specific order; (3) The 1926 Act does not apply in relation to these proceedings because of what Thorpe LJ said in Clibberyv Allan at paragraph 108 of the judgment; (4) If he is wrong about the 1926 Act, and/or, as he invites me to proceed on the assumption that it does apply, then he makes an application for permission to the media to publish reports of these proceedings, subject to, if necessary, the publication of any material which the court was satisfied was likely to injure public morals, adopting the language of the 1926 Act; (5) The court has power to make such an order pursuant to section 1(4) of the 1926 Act following the decision in Rapisarda;(6) It is for the respondent to apply for more extensive restrictions or for any restrictions but that must be done on notice and must be supported by evidence and that has not been done.

As an alternative approach, Mr. Hudson invites me to consider sitting in public and then to consider whether any specific reporting restrictions need to be imposed in relation to any part of the hearing.

Mr. Hudson's first submission in relation to the implied undertakings is something which I shall need to consider in further detail. Before I do so, I want to deal with his second to sixth points. In the first place, I have made it clear that I am proceeding on the basis that the 1926 Act applies. That was the substance of his invitation to me. In so doing, and for the purposes of this application, I am going to assume that the 1926 Act applies to restrict the publication of information and reports of these financial remedy proceedings, save in so far as I make directions specifying that certain categories of information can or cannot be reported. I am proposing to adopt in terms the mechanism which the President employed in Rapisardato find a way through the difficulties of publication and to exercise my discretion under section 1(4), subject to whatever conclusions I reach in relation to the arguments advanced by Mr. Vassall-Adams.

In accepting Mr. Hudson's invitation to treat the Act as applying to these financial remedy proceedings, it seems to me to be artificial to confine the scope of any permission or restriction in relation to reporting the proceedings to matters which might injure public morals. He sought to persuade me that if I proceed on the basis of a literal construction of the 1926 Act, I do not even reach the foothills of the balancing exercise for which Mr. Vassall-Adams contends. He says that that approach is misconceived because the purpose of the Act is specific. It was never intended to protect privacy, but public morals.

The debate on this point was joined by the President in paragraph 17-27 of the Rapisarda case. He took the view, nevertheless, that unless and until the position was clarified by Parliament, or in some other way, judges might nevertheless consider exercising a discretion under the 1926 Act, specifically in the context of issues of reporting in financial remedy cases.

Mr. Hudson appears to accept that even if I were to proceed on the basis that the correct approach is to ask, would a report of these proceedings engage the mischief at which the 1926 Act is aimed, and even if, as a consequence, I permit the entire proceedings to be reported, I am still at liberty to make a direction under section 1(4), making orders restricting reports of particular material, if I was persuaded that was appropriate. He says that the reason why it may be necessary to adopt this approach is because of the uncertainty over the ambit of the 1926 Act. The coalescence of the application of the Act and the implied undertaking is, he says, a consequence of the misguided approach taken by the husband.

It seems to me that, interesting though these issues may be, and even if I am wrong in my assumption (an assumption I make at Mr. Hudson's express invitation) that the 1926 Act applies, I nevertheless have jurisdiction to make orders restricting or allowing the reporting of cases by virtue of section 6 of the Human Rights Act and/or the inherent jurisdiction. Whilst these may be interesting points of debate, I am going to reach a decision today in order that this trial can proceed.

As to his sixth submission this simply puts us back in the territory of the default position and on whom the burden lies to make the application. It is not terribly helpful for me in terms of case managing this hearing (which is now into its second week, with most of the first having been taken up with arguments over press reporting) if we are to finish this case within its allotted time estimate. I need to hear the husband's evidence, the submissions of specialist tax counsel and the submissions which are going to be made by Mr. Marks and Mr. Pointer at the end of the hearing. I am told that each is likely to take the best part of a full day and I am going to decide this morning what aspects, if any, of the husband's evidence can be reported. If Mr. Vassall-Adams is right, there will be no reporting.

If and in so far as I am against him in relation to a total embargo on reporting anything said in these proceedings, I shall need to consider his fallback position, the terms of which I have already described. If and in so far as there are other issues arising about which I presently have no notice, there may need to be a further application, either to exclude the press or to restrict reporting. But I am quite clear that to accede to Mr. Hudson's position as articulated at his sixth point would, at this stage of the proceedings, jeopardize the prospect of us completing this trial. It is, as I have said, essentially a case management decision, albeit one in respect of which there is an important principle at stake for both parties.

It will be convenient at this point to address Mr. Vassall-Adams's submission on behalf of the husband. He makes 10 points in all:

(1)

If the court is to discharge its statutory role under section 25 of the Matrimonial Causes Act 1973, so as to achieve a fair outcome the parties must give full and frank disclosure of all documentation concerning their resources.

(2)

This is quintessentially private information.

(3)

There is a very strong public interest in ensuring that parties properly discharge their obligation to give full and frank disclosure.

(4)

This is supported by the implied undertaking that information disclosed for the purpose of financial remedy proceedings will not be used for other purposes.

(5)

Parties disclose documents in financial remedy proceedings in the expectation and understanding that in the normal course of events this detailed financial information and the relevant documents will not enter the public domain.

(6)

This expectation of confidentiality acts as a strong incentive on parties to give full and frank disclosure. Conversely, parties are likely to be deterred from giving full and frank disclosure by the prospect of publicity.

(7)

It defeats the object of the implied undertaking as to confidentiality if financial remedy proceedings are held in open court with the result that sensitive disclosed information becomes public in any event.

(8)

These propositions apply to any application to make public what happens during the course of an application for financial remedy orders, whether the hearing is held in private or in public.

(9)

The substantive law has not changed despite the introduction of the changes brought about by the amendments around the Proceedings Rules in 2009. In essence, the rule change has not affected the private nature of the hearing, the absence of any access to the court file and the principles established as to the limits of what can and cannot be reported or made public.

(10)

There are exceptions to this principle and they are these:

(a)

information which is within the public domain is not to be treated as confidential and the court has no power to restrain publication;

(b)

there is no confidence in iniquity or fraud cases but it is accepted that this exception has no relevance for the issues which I am deciding today.

In considering these submissions and the balance which I have to weigh, I intend to focus on the three major factors at play here. First, there is the confidential nature of the proceedings and the private financial information which is the subject of the implied undertakings. Second, there is the 1926 Act about which I probably need to say little more. Thirdly, there are convention rights which need to be carefully weighed in the balance.

I accept these are essentially private proceedings. That is the default position under Rule 27.10 and although Mr. Hudson now invites me to treat this hearing as a public hearing, I decline to do so. The parties anticipated that they would be ventilating these matters in the context of a private hearing and at no stage in the case management of this matter has anyone applied for a public hearing, a point which Mr. Pointer was keen to stress to me when he addressed me on some of the perceived shortcomings in the husband's second statement.

The courts have always recognised the potentially coercive nature of the heavy duty imposed on parties to make full, frank, complete and up-to-date disclosure of their financial means. Mr. Vassall-Adams took me to a number of authorities showing the longevity of the principle. Such is its universal acceptance in these courts that I do not need to refer to them in this judgment. The preservation of confidentiality in such disclosure is and always has been an important counterbalance to the argument that such information can be deployed for purposes outside the matrimonial arena, even where there are competing interests at play.

The information which the court needs, in order to conduct what has commonly been referred to in this division as ‘the section 25 exercise’, does not depend solely upon the financial documentation produced by the parties. The inquiry will often take on a quasi-inquisitorial nature as that evidence is explored in court during the course of the oral evidence.

Frequently, it is necessary for the court to reach a conclusion as to computation as well as distribution and this exercise may well involve a detailed scrutiny of the documents supplemented by a detailed narrative explanation and commentary from the witness-box. I have no difficulty in accepting the proposition that a party may well feel constrained in answering questions or providing transparent answers during the course of cross-examination if he or she believes that what is said will be on the nation's breakfast tables the following morning.

To my mind this goes far beyond issues of price sensitive information which might affect the share price of a publicly quoted company. It goes to the core of the exercise which the court is required to perform. In this case, where the underlying financial structures and the way in which they operate are extremely complex, I should be very concerned indeed if this husband felt in any way inhibited about assisting both me and counsel in the case to reach a full understanding of and clear conclusions about the matters which may well need to be determined as findings of fact.

In circumstances where there has been an issue as to the future value to be attributed to his interest in the TCI entities, for example, I may well be asked to hear very sensitive information about his future plans, approaches he may or may not have received, discussions he has had with other key members in the group. Unless he felt able to explain all these matters in a full and frank way in an environment of privacy, at least in so far as reporting goes, I can well see an argument for saying his own Article 6 rights may be undermined.

I have already been told about the importance which both of these parties, but especially the husband, attach to the principle of confidentiality in these proceedings. Whilst the wife may now be adopting a neutral position in relation to the issues of reporting, she nevertheless agreed to enter into a stringent and wide-ranging contractual confidentiality agreement with the husband and authorised her entire team of advisers, legal and non-legal, to agree to its terms before the husband provided any voluntary financial disclosure. That agreement was signed as long ago as 6th March 2013. I have seen a copy and the schedule of signatories attached to it. There are 18 in all, including two individuals who were significant employees within the husband's own business structures.

The disclosure for which protection was sought described in the agreement as "protected material" related not only to documents disclosed by way of replies to questionnaire, but: "All other information relating to this, whether or not contained in the documents and including all material already supplied by the husband to the wife and any other information yet to be supplied for the purposes of his financial disclosure in these proceedings."

Paragraph 1.2 of the agreement provides that the wife and her legal team may only disclose the protected material to the minimum extent required by any order of court of competent jurisdiction or any competent judicial government or regulatory body, or in accordance with laws or regulations of any country with jurisdiction over their affairs.

The only limitation on the wife's obligations and those of her legal team was a relaxation of the terms in the event that the information had become public knowledge. I have already made the point that much of the information which the media might otherwise wish to report in relation to these parties' finances will no doubt be apparent from my judgment. There may or may not in due course be an application to redact part of its contents. I do not know at this stage, because I have no way of knowing, how the evidence will develop.

The fact that financial matters may subsequently be referred to in a formal judgment of the court does not in my view displace the important and fundamental principles to which I have referred above. These are not new principles. They were clearly explained by the Court of Appeal in Clibberyv Allan. Whilst that was not a case involving ancillary relief, it was a case where the principle of full and frank disclosure and the policy underpinning the requirement for it was ventilated at some length. In paragraph 51 of her judgment the then President, Dame Elizabeth Butler-Sloss, stated quite clearly that:

"... the hearing of a case in private does not necessarily, or of itself, prohibit the publication of information about the proceedings or given in the proceedings."

She went on to explain that there are certain situations which have long been recognised as requiring confidentiality in order to ensure that there is no potential prejudice to the interests of justice. In paragraphs 72 she said this:

"In each of the above cases, the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of all that information by means of the implied undertaking. In order to achieve compliance with a disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed."

Then at paragraph 73:

"The implied undertaking extends, as the cases to which I have referred above show, to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction."

Those passages led her Ladyship to conclude, as a clear and established principle, that:

"All cases involving issues of ancillary relief are protected from publication by anyone without the leave of the court."

In this context, whilst acknowledging the clear need to carry out a balance of the competing Convention rights at play and in particular Articles 8 and 10 she said this at paragraph 82:

"The principles underlying the recognition of implied undertakings do not appear to me to breach the requirements of Article 10."

But she was quite clear that a balance was required and, to use her words:

"There cannot be a blanket approach".

Since Munby J at first instance had carried out an appropriate balancing exercise, the ground of appeal relied on in relation to Convention rights failed.

I mention this specifically, because Mr. Vassall-Adams relies on this authority and in particular the contents of paragraph 73 of the judgment as establishing the imprimatur of overriding confidentiality on what he described as all information put before the court. He submitted that in Clibberyv Allan, whilst the court was focused on the money and the financial aspects of the disclosure process, all relevant evidence which falls to be considered by the court in reaching a fair outcome on the basis of the factors in section 25 of the 1973 Act is embargoed from publication. This, he submits, is the full and all-embracing breadth of the principle and it underpins in a substantial measure the submissions he makes in terms of his primary submission that there can be no reporting at all.

I raised this issue with Mr. Vassall-Adams in the context of what I referred to as ‘the narrative of family life’ in the context of the special contributions argument being advanced by his client. He confirmed that any such reporting would have to be the subject of a specific application for permission from the media.

I accept that the phrase: "... all the relevant circumstances ..." in paragraph 73 may well include a narrative by both parties in a case as to their respective contributions and here special consideration is very much in issue, if not the central issue in the case. However, I have to say that to the extent that he draws upon paragraph 73 to establish the breadth of the principle for which he contends and which he says should override the changes brought about by the admission of the press, as of right, I do not agree with him. The President made it clear in Clibberyv Allan that the principle, broad though it was, remains subject to a balancing exercise.

I look to the statement of principle set out by Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2011] 1LFR1439 at paragraph 76 where he says:

"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."

That was the issue before the court in that case. Then at paragraph 77:

"Mr. Balcombe submitted that the protection of this confidence is the result of a pact between the litigant and the court. That may be a helpful description of the principle. But if so, the Husband and the Interested Party did not keep to their part of the pact. In matrimonial ancillary proceedings, the obligation of the parties is to disclose the facts regarding their finances."

He was referring in that instance to the fact that the husband had given perjured evidence of his means. He continued at paragraph 79:

"I start from the premise that, as Article 6 requires, justice should be seen to be done, and in general the judgment of the court should be public unless there is good reason for it not to be published or for the identities of the parties not to be disclosed. Litigants have a right to respect for their private life under Article 8, but that right is qualified and in many and, indeed, most cases the interests of justice, and of justice being seen to be done, require facts that would otherwise remain private to be made public in a judgment. The general practice of the Family Division is for judgments in ancillary relief cases not to be published, or if published to be anonymised. That is done out of respect for the private life of the litigants and in order to promote full and frank disclosure, and because the information in question has been provided under compulsion."

It will be seen that in that case, too, his Lordship referred to the balancing exercise which was required notwithstanding his statement of principle in paragraph 76.

Similarly in Spencer, another case which post-dated the rule change, Munby J, as he then was, was quite clear that an application to exclude the press (which engages many if not all the same principles as an order restricting press reporting) involved "a parallel analysis leading to the ultimate balancing test".

In relation to the contribution made by Thorpe LJ to the issue of reporting, I have already referred to the remarks he made at paragraph 93 in Clibberyv Allan. Parliament had, indeed, been sparse in its contribution to unraveling the question as to what, if anything, can be extracted from family proceedings held in private for subsequent publication precisely because, in 2002, there was no need to legislate. The door of the courtroom remained firmly closed to the press and they in turn had been scrupulous not to trespass.

In terms of future developments, towards greater openness, he said this at paragraph 117:

"I would not wish it to be inferred that I am opposed to change or an advocate for the present practice. There are strong arguments for the introduction of greater openness in family proceedings. There is strong evidence that a substantial section of public opinion would favour such a change. However the arguments for and against are complex and finely balanced ...".

He had the opportunity to revisit the issue in 2011 after the rules had changed since he gave the leading judgment in Lykiardopulo. Having remarked that public interest in the campaign for open justice had not focused on what he described as "this special field" of ancillary relief proceedings but was rather drawn to cases concerning children, he went on to reiterate the key factors present in financial proceedings which are absent in other civil proceedings, such as their quasi-inquisitorial nature and the absolute nature of the duty owed by the parties by the court in terms of full and frank disclosure. That case did not concern the reporting of the proceedings but the anonymisation of the judgment in circumstances where one of the parties had committed a fraud on the court by falsifying evidence put before the judge.

I accept the submission, which Mr. Vassall-Adams makes to me, that there is a fundamental distinction between a published judgment which sets out the court's reasons and conclusions on the issues arising in the case and the contemporaneous publication of what takes place in a private hearing. I also accept that Lykiardopulo is good and sound authority for the proposition that the fundamental principles governing ancillary relief or financial remedy proceedings, the confidential nature of the financial information disclosed within them and the need to protect that information remains good law, notwithstanding that the media now has access to these private hearings.

To that extent, my views as to the nature of the implied duty of confidentiality and its survival as operative and in force as between the parties and the court, notwithstanding the rule changes, remain very much in accordance with the obiter views expressed by Mostyn J in paragraph 50 of W v M. I agree in principle that there is a "core privacy" which attaches to the special class of financial remedy proceedings which are actually held in private and designated as such under rule 27.10.

I say this not least because it would, indeed, lead to the complete emasculation of that core privacy if the press were held to have an unfettered right to report in full anything and everything which they heard during the course of the hearing in advance of the judge reaching any conclusions which may subsequently be recorded in a formal judgment, anonymised or not.

In terms of Mr. Wolanski's written submissions in relation to the implied undertaking, I reject the argument, if indeed it is being pursued, that I should assume by the fact of media attendance alone at this hearing that I am somehow sitting in open court. The terms of rule 27.10 are perfectly clear. Equally, I reject any submission that the disclosure provided by the husband was not made under compulsion because it was produced on a voluntary basis. Mr. Hudson has not adopted these particular points as part of his own submissions to the court and I do not accept them as any justification for the suggestion that the press is free to report at will whatever they may hear in these proceedings.

However, I turn now to deal with what I regard as issues of real substance in relation to the operation of the implied undertaking. Mr. Hudson's response to all that Mr. Vassall-Adams says about the implied undertaking, and it is a response which is joined by Mr. Wolanski, is that it has nothing whatever to do with what the media can report. It relates entirely and solely to restrictions on what the parties can do with documents which have been disclosed to them.

Mr. Hudson rejects the proposition that the financial disclosure made by the husband in these ancillary relief proceedings is of a different or special category from the disclosure made in any other proceedings. He does not recognise the distinction which arises as a result of the court's quasi-inquisitorial obligations to conduct a wide ranging an inquiry into all of the section 25 factors so as to reach a fair result.

In summary, he says that none of the documents which have been disclosed as part of the disclosure process in these proceedings, as and when deployed as part of the hearing in the presence of the media, remain subject to a prohibition on what can be reported. That is the basis for his submission that the only sensible and efficient solution to this problem is for there to be a specific tailored order which sets out the class or category of information which I am persuaded should not be the subject of press reporting. That, he says, can be done very simply and if the media wish to challenge the order, they can. It removes the uncertainty of the abstract manner in which the husband has approached the argument.

To the entire body of case law flowing from the decision in Clibberyv Allan and Lykiardopulo, Mr. Hudson submits that it simply does not address the issue which confronts me, namely: when nominally private information is deployed in the presence of the media, and in the absence of any other reporting restrictions, does the implied undertaking have the effect for which Mr. Vassall-Adams contends? Mr. Hudson submits that none of the authorities say that it does.

It was at this point that Mr. Wolanski took up the development of his arguments on Friday morning of last week. He submits that the crucial point, which I have to consider is whether or not, if the implied undertaking exists, it operates so as to bind the press. As a matter of general law the implied undertakings and ancillary relief proceedings prior to the rule change did not and do not bind third parties in the absence of any express contractual arrangements, such as the confidentiality agreement which the husband has secured against the 18 named individuals, to which I have already referred.

The reason why the implied undertaking created a situation of complete privacy, Mr. Wolanski submits, was for the simple reason that the press were not permitted in the courtroom. There was no practical way they could access the documents and they were not present in court to hear the arguments. He contends that the only way to prevent reporting by the press before the provision of the rules was to make an injunction.

As to the position after the 2009 rule change in so far as it affects financial proceedings, he distinguishes the Child X case as one where different policy positions apply, because the court was not concerned with finances but with the interests of children. He says I can place no reliance on the Court of Appeal's decision in Lykiardopulo, because the issues whether the press was bound by implied undertaking was never even considered.

The only two routes open to me, if I wish to restrict reporting in this case, are either an injunction or a restriction imposed on the basis of the Rapisarda discretion under the 1926 Act. If the 1926 Act applies to these financial remedy proceedings, he accepts that I can make specific directions as to what can or cannot be published. That will take the form of an injunction preventing the press from reporting a category of information and an order which makes reference to the 1926 Act, section 1(4) and, in so far as it applies, a relaxation on its restrictions so as to permit publication. On that basis, anything other than what is restrained by the injunction can be published.

If this was the route I adopted to protect the confidentiality of the financial disclosure provided by the husband, it seems to me that any further restriction on publication would require a further application by either the husband or the wife, (i) to exclude the media during part or parts of the proceedings, and/or (ii) for further orders restricting publication. This exercise involves the balancing exercise required by the engagement of articles 8 and 10.

Mr. Vassall-Adams responds to these submissions by inviting me to “park” in its entirety the issue of the 1926 Act and make my decision solely on the basis of the implied undertakings as to confidentiality. He submits that as long as these proceedings remain private, the confidentiality of the information will be preserved precisely because the parties are not liberated from their individual duty of confidence. Whilst he accepted that the principles of law put before me by Mr. Hudson and Mr. Wolanski might be correct as propositions in themselves, context is everything. In private hearings, it is policy which underpins the situations in private hearings.

So where does all this leave me in terms of resolving these fascinating issues of principle in the absence of any assistance from either Parliament or judicial pronouncement on the point? The observations of the President in Rapisarda are the nearest form of assistance to which I can reach in terms of time, but they do not provide a complete answer because of the fundamentally different nature of the proceedings with which the President had been dealing in open court and his concerns about the applicability of the 1926 Act, in any event, to financial remedy proceedings.

These are the conclusions I have reached.

I accept and wholly endorse the first six submissions which Mr. Vassall-Adams has made in relation to the policy considerations, which support the entire structure of the private nature of financial remedy proceedings. I accept also that whilst the principle of open justice remains as relevant in this Division as it does in others, the courts have consistently recognised that financial remedy cases heard in the Family Division involving, as they do, very real and legitimate expectations of privacy and confidentiality for the family, fall into a special category.

However, to the extent that he seeks to persuade me that there can be no reporting whatsoever of these proceedings unless and until the media make an application to satisfy me that it would be a necessary and proportionate step to take, his proposition - in my view - goes too far. Quite apart from the practical aspects and the inevitability of these proceedings having to be adjourned off part-heard and possibly for a significant period of time, I have come to the clear conclusion that the proposition he advances in terms of the “blanket” restriction which he seeks is too wide.

I am reinforced in this view by what the then President herself said at paragraph 82 of her judgment in Clibberyv Allan. She specifically held that the principles underlying the recognition of the implied undertakings do not of themselves appear to breach the requirement of Article 10, but she confirmed that both in our domestic law and in compliance with the European Convention, there cannot be a blanket approach. It is not without significance that in Clibbery itself, the appellant had raised a blanket objection to publication based on the general premise that the case was heard in private and must consequently remain secret. That proposition was rejected. Whilst I accept that those proceedings were not ancillary relief proceedings, and that very different policy considerations apply here, the President did not seek to retreat from the views she had expressed about the need for a balance to be struck.

I also accept that issues of confidentiality in relation to financial disclosure were and are very important to this individual couple and to the husband in particular. Their rights under Article 8 were, and are, securely engaged and their expectations of privacy in these proceedings are shored up in very significant measure by the approach which the courts have taken to this issue both before and after the changes in the rules.

I have already expressed my concerns about the extent to which in these particular circumstances the husband's Article 6 rights might also be engaged in the event that he felt himself constrained in his evidence to the court for fear that an account of everything he said would be available almost instantaneously for public consumption without any judicial filter. I am also alive to the possibilities that his evidence may well touch on several areas of highly confidential and commercially sensitive information, which might well be damaging not only to his own business affairs but to the commercial interests of other third parties who have not, and will not have, the opportunity to make representations to secure protection for those interests if the media are automatically entitled, as of right, to report the evidence as they hear it.

Nevertheless, I have to balance against those rights the Article 10 rights of the media. Parliament has decided that it is appropriate to allow them, as of right, to attend hearings of this nature regardless of whether those hearings are conducted in private or in public. (The recent decision of Holman J in Luckwell v Limata [2014] EWHC502 is just one example of a judge's entitlement to exercise a discretion to sit in public, albeit that the issues central to the decision in that case were very different from the issues which I am going to be deciding). The sums involved in this case may exceed to a very significant extent the sums involved in any previous divorce hearing in these courts, but that alone, in my view, is not what engages the real public interest in these proceedings.

If Mr. Pointer succeeds in his argument that ‘special contribution’ is a concept which is in itself inherently discriminatory to an applicant in the wife's position, that will represent a significant development in the law as it has been applied to date in these types of claims arising on divorce where the assets are significant and there is alleged to be a contribution by one of the parties unmatched by the other. I am not here going to say anything about the extent to which it would be open to me to achieve such a result because of existing law which has been confirmed by the Court of Appeal. However, I do accept that these are issues which are of interest beyond immediate legal circles and the media is fully entitled to report them subject to any restriction, which I may impose on their ability to do so.

To an extent it may be said that those Article 10 rights will be met when the process as a whole is completed, because in due course I shall be giving an open judgment.

I accept that neither Article can take precedence over the other, but they are plainly in conflict. There is absolutely no doubt in my mind about the importance which the husband attaches to preserving the confidence in his financial disclosure for the reasons I have set out above. (The wife is neutral so to that extent I am focusing on him for the moment). I believe he has a legitimate expectation that that confidence will be respected by this court in the context of the private hearing it is conducting. As the Court of Appeal has confirmed in Lykiardopulo, private hearings of themselves do not breach Convention rights for the purpose of Article 6.

Will restricting their ability to report about financial information in the terms envisaged by Mr. Vassall-Adams's draft order (his “fallback” position) reflect an unjustifiable interference with the Article 10 rights of the media organisations which Mr. Hudson represents? My conclusion is that the policy considerations which have been unaffected by the rule changes in 2009 represent an entirely justifiable interference in those rights which is entirely proportionate to the issues at stake. As I have already said, those Article 10 rights may, in any event, be met in due course by the handing down of an unanonymised judgment. I do not consider that breaching the confidence attached by the parties and the court to the financial disclosure would assist the public at large or enhance public understanding of the family justice system.

I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.

Having considered carefully all the matters on which I have heard submissions, the material which I have read and the authorities to which I have been directed, I have reached the conclusion that, whilst I cannot accede to Mr. Vassall-Adams' primary submission, I am prepared to impose a restriction on reporting in the terms set out in the draft order which he sent to me on Friday afternoon last week. I am assuming for these purposes that copies have been supplied to Mr. Wolanski, Mr. Hudson and Mr. Pointer.