His Royal Highness Louis Xavier Marie Guillaume v Her Royal Highness Tessy Princess of Luxembourg & Anor

In this matter, I am required to determine a dispute between His Royal Highness Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma (whom I shall hereafter refer to as ‘the husband’) and Her Royal Highness Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma (whom I shall hereafter refer to as ‘the wife’) as to the proper ambit of a reporting restriction order applied for by the husband to regulate the reporting of these financial remedy proceedings. The Telegraph Media Group Ltd (hereafter ‘TMG’) is a respondent to the application.

At the heart of the dispute between the husband and the wife on this issue is the question of the extent to which the wife should be permitted to publish information from these proceedings in an attempt to redress what she submits has been deeply hurtful, tendentious and wholly inaccurate coverage of her within the context these proceedings. The wife asserts that this coverage has brutally, unjustly and unfairly traduced her character and reputation and which she contends has resulted in upsetting and misleading comments “below the line” of articles online.

Specifically, whilst agreeing that a reporting restriction order should be made, in pursuit of her aim the wife seeks to make public the bare terms of her open offer to the husband and certain information concerning the former matrimonial home, some of which, the wife submits, is already in the public domain. By contrast, the husband seeks to frame the terms of the order so as to restrict the media from publishing any information concerning the parties' financial arrangements, which would include the terms of the wife’s open offer and information concerning the former matrimonial home.

Subject to this dispute as to the proper scope of the order in respect of these matters, both the husband and the wife accept that, considering the extensive publicity that has already accompanied their separation, and their subsequent divorce and financial remedy proceedings, the order should be limited in its ambit to the parties’ financial information and information concerning their children. TMG contends that the wife should be able to provide, and TMG should be able to publish, the terms of her open offer and the other information in issue.

In determining this application, I have had the benefit of written and oral submissions from Mr James Ewins QC and Ms Alexandra Marzec on behalf of the husband, Ms Marzec taking the lead on the submissions with respect to publicity, from Ms Emma Hargreaves and Mr John Stables on behalf of the wife, Mr Stables taking the lead on the issue of publicity and oral submissions from Mr Greg Callus on behalf of TMG. In light of certain issues that developed during oral argument at the hearing, I gave permission to TMG to file further written submissions and permission to the husband and wife to provide written submissions in reply if so advised. In the event, both the husband and the wife took the opportunity to respond to the further written submissions of TMG. In the time it has taken to compile this reserved judgment, the parties also sought to assail the court with communications regarding further press coverage of this matter, accompanied by requests to take various additional matters into account. For the avoidance of doubt, I make clear that I have determined this application solely on the evidence and submissions that were before the court at the hearing, together with the supplementary written submissions for which the court gave permission.

The husband is the third son of the Grand Duke of Luxembourg. The wife is also Luxembourgish. She is not of Royal descent. The parties commenced their relationship in 2004 whilst the husband was a student and the wife was a non-commissioned officer in the Luxembourg Army. The parties were married on 29 September 2006. The parties have two children, aged 10 and 11. In 2009, the wife was formally recognised as a member of the Royal Family and granted her title by Royal Decree.

During their marriage, the parties lived in the United States before latterly moving to live in London. The marriage broke down in the summer of 2016 and the wife applied for decree nisi in January 2017, which decree was granted on 17 February 2017. This was widely reported in the media. This court has made directions for the determination of the financial remedy proceedings between the parties.

The parties’ financial position is before the court by way of disclosure provided by each party pursuant to their duty of full and frank disclosure. The court also has before it certain information provided by third parties relevant to the dispute between the husband and the wife. A summary of the parties’ financial arrangements, in respect of which there remains a significant dispute, will be set out in an annex to this judgment, including the information concerning the former matrimonial home that is in issue at this hearing. In light of my decision as to the proper ambit of the reporting restriction order, that annex is not included in the published version of this judgment. What can properly be said however, is that, on each party’s case at its highest, the assets in dispute are modest by comparison to the majority of financial remedy cases that come before the High Court.

As I have already noted, the wife has made an open offer of settlement to the husband. That offer was made on 22 September 2017 and amended on 18 October 2017. As is good practice, the open offer sets out, from the wife’s perspective, the detailed financial position and analysis on which the offer is based, drawn from the material disclosed in the proceedings, as well as material provided voluntarily by third parties. The details of that offer in so far as they are relevant to the issues before the court will also be contained in an annex to this judgment. Once again, in light of my decision as to the proper ambit of the reporting restriction order, that annex is not included in the published version of this judgment.

As I have already stated, the separation of the parties and their divorce proceedings had already been the subject of media coverage both in this jurisdiction and in the countries of Europe. Examples of that coverage are contained in the bundle of evidence that is before the court. It is accepted by the husband that certain aspects of the coverage of the wife have amounted to a “personal attack” on her.

One story has been the focus of examination in this context. Namely, an article in Lëtzebuerg Privat, a German language magazine in Luxembourg. The court has the benefit of a translation of the article. It is beyond dispute that the article is written in pejorative and tendentious terms. The central contention of the article is that the wife is, to quote the article in a manner that gives some flavour of its approach, the “daughter of a roofer and a housewife” who is now desperate to cling to her Royal title. The article states in its opening paragraph its author’s view that “It is about time that the former soldier is brought back down to earth and is reminded of where she comes from”. The article also at one point implies, but does not state in terms, that the wife married the husband for financial reasons. The article does not, at least in the translation I have available to me, use a term that translates to the English phrase “gold digger”. The article does however, as I have said, contend that the wife married the husband for reasons of self-aggrandisement and financial gain. At the first directions hearing on 13 October 2017, the husband made clear through leading counsel that he shared the wife’s “disgust” with respect to the article in Lëtzebuerg Privat.

On 13 October 2017, I dealt with the first directions appointment in these proceedings. At that hearing, accredited members of the press were present in court as they are entitled to be pursuant to FPR r 27.11. During submissions at the hearing, leading counsel for the wife referred to the story in Lëtzebuerg Privat and stated that the wife wished to put the record straight as the article in that publication “suggests she is a gold digger and married for title and money”. In response, at the end of the hearing leading counsel for the husband made an oral application for a reporting restriction order, contending that the wife’s submission was evidence that she intended to take the parties’ financial dispute to the media. The terms of the order applied for by the husband restricted the publication of material that referred to or concerned any of the parties’ financial information, including, but not limited to, that contained in their compulsory written disclosure, replies to questionnaires, solicitors’ correspondence, witness statements, oral evidence or referred to in submissions made on their behalf, save to the extent that such information was already in the public domain.

I was extremely conscious that the media were not on formal notice of the husband’s application, made as it was orally at the end of the hearing on 13 October 2017. However, in circumstances where any publication of the information in dispute, before the court had had the opportunity to hear full argument and rule on the issue, would have defeated the purpose of the husband’s application for injunctive relief, and in circumstances where I had had the benefit of brief representations from the journalists from the Press Association and from the Daily Telegraph present in court, I was persuaded to take the exceptional course of granting an interim reporting restriction order for the shortest possible period until the matter could return before me on notice to the media.

In circumstances where my interim order was expressly limited to the terms sought by the husband, several articles appeared in the English media following the hearing, based on, and dealing with information already in the public domain. Some of those articles reported the assertions made by Lëtzebuerg Privat that the wife had married into the Luxembourg Royal Family for self-aggrandisement and financial gain. Several of the headlines accompanying the stories in the English media employed the phrase “gold digger” deployed by leading counsel for the wife at the hearing on 13 October 2017.

The return date of the husband’s application for a reporting restriction order is now before me. The husband seeks to prohibit publication of reports of these proceedings that refer to or concern:

Finally, before turning to the parties’ submissions in detail, two points of procedure need to be addressed. First, on behalf of TMG, Mr Callus complains that the husband required TMG to provide undertakings before he would consent to the wife’s statement in response to this application to be released to TMG. Mr Callus points to FPR PD 12I para 3.3, which records that legal advisers to the media can differentiate between information provided for legal purposes and information for editorial use. Mr Callus is right to emphasise this provision. For reasons which will be self-evident, it is important that media organisations responding to applications for reporting restriction orders are in a position properly to argue their case. This will ordinarily require those media organisations to be on notice of the evidence relied on in support of the application for such orders.

Second, as I have noted, the husband first made his application for a reporting restriction order orally and without proper notice to the media (or indeed to the wife). This placed the court in the difficult and invidious position at the end of the court day of having to decide between making a draconian order restricting the right to freedom of expression and risking the defeat of the husband’s application before it could be argued. FPR PD12I makes clear the steps that must be taken to notify the respondents to an application for a reporting restriction order before such an order is made. If the strict procedural safeguards that rightly attach to applications for reporting restriction orders are to be properly adhered to, it is vital that in financial remedy cases where the issue of publicity is likely to arise, consideration is given by parties and legal advisers to this issue in advance of the FDA and a proper on notice application prepared if such an order is to be sought.

Whilst he questions the wisdom of doing so, the husband makes clear that it is a matter for the wife whether she wishes to respond to negative stories in the media by setting out her personal motivations and feelings about the marriage and subsequent separation and divorce. Ms Marzec submits that the order sought by the husband does not seek to bind the wife as to what she can say independent of the proceedings. The husband further makes clear through Ms Marzec that the wife may “state publicly and in very general terms that she wants a fair settlement and has made offers to try to achieve this”. Ms Marzec points out the description by the wife’s leading counsel of her open offer at the first directions appointment on 13 October 2017 as being “a very reasonable and sensible proposal” has already been reported in the Daily Telegraph. Beyond this however, the husband seeks an order in the terms I have recounted.

The husband submits that the nature of the analysis required under s.25 of the Matrimonial Causes Act 1973 means that these proceedings will involve intimate consideration of both the parties’ financial information and of personal details regarding their home, health, personal histories, lifestyle, occupations and children. Within this context, Ms Marzec submits that financial remedy proceedings are shrouded in inherent confidentiality and privacy. The husband further submits, relying on the decision of the Court of Appeal in Clibbery v Allen [2002] Fam 261, that it has long been settled law that such financial and other personal information and documentation, when disclosed pursuant to the duty to give full and frank disclosure in financial remedy proceedings, must not be reported when referred to at a hearing because of the existence of an implied undertaking. The husband submits that the common law position articulated by Clibbery v Allen has survived the amendments to the FPR 2010 which, under FPR r 27.11, permit the attendance at hearings in financial remedy proceedings of duly accredited representatives of news gathering and reporting organisations.

Ms Marzec submits that the wife’s open offer contains information that has been provided pursuant to the duty of full and frank disclosure, as was the information in issue concerning the former matrimonial home. Within this context, Ms Marzec submits that in this case the implied undertaking at common law serves to protect all, or at least the vast bulk of the information in these proceedings from publication.

However, Ms Marzec nonetheless contends that in this case a reporting restriction order is required in the terms she advances as (a) the boundary between what is protected by the common law on confidentiality as articulated in Clibbery v Allen and that which can properly be reported is ill-defined; (b) an order is required to prevent the wife from providing private information to the media as a means of exerting pressure on the husband within the context of this litigation, the husband contending that the wife’s stated wish to disclose her open offer and certain information concerning the former matrimonial home confirms her intentions in this regard; and (c) an order is required to protect information provided in these proceedings voluntarily by third parties, which information the husband submits is arguably not covered by the common law principles with respect to confidentiality. In her supplementary written submissions on the husband’s behalf, Ms Marzec points out that in Appleton v Gallagher [2016] EMLR 3 Mostyn J made a reporting restriction order despite concluding that the 2009 changes to the FPR were not intended to abrogate the core privacy provided by the implied undertaking.

In undertaking the balancing exercise required when considering whether to make a reporting restriction order, between the rights engaged under Art 8 and Art 10 of the ECHR, as described in Re S (Identification: Restrictions on Publication) [2005] 1 AC 593, Ms Marzec submits that Art 8 starts as the weightier of the two rights given the common law principle of implied undertaking as articulated in Clibbery v Allen. Ms Marzec relies on the decision of the Court of Appeal in Lykiardopulo v Lykiardopulo [2010] 1 FLR 1427 and the decision of Mostyn J in Appleton v Gallagher, as authority for that proposition.

Within this context, Ms Marzec submits that the balancing exercise comes down firmly in favour of a reporting restriction order in the terms she seeks. In this respect, and within this context of her submissions on the law as summarised above, Ms Marzec relies on the following matters as supporting a conclusion that the ECHR Art 8 rights engaged in this case outweigh those under Art 10:

In her submissions in reply to the additional written submissions provided by TMG, Ms Marzec takes issue with the submission of TMG that financial information does not attract the same degree of confidentiality or privacy as other information, submitting that strictly personal financial information has long been recognised as sensitive, personal information that is protected by confidentiality, relying on the decision of Eady J in Author of a Blog v Times Newspapers Limited [2009] EWHC 1358 (QB) at [9].

Ms Marzec does not take issue with Mr Callus’ analysis of the legal position with respect to information already in the public domain. Ms Marzec however seeks to emphasise Lord Neuberger’s exposition of the law in PJS v News Group Newspapers Limited that publication of stories in newspapers in other jurisdictions is not sufficient of itself to undermine a claim for injunctive relief, notwithstanding that this may result in many people within this jurisdiction becoming aware of that information online and via social media. It is within this context that Ms Marzec advances a public domain proviso that is limited to information published in the “UK national media”.

Ms Marzec does however take issue with the submission of TMG that information contained in HM Land Registry is within the public domain. Ms Marzec submits that Appleton v Gallagher is not authority for this proposition, dealing as it does only with information held at Companies House. Further, Ms Marzec seeks to draw a distinction between information held at Companies House, which is searchable by anyone with access to the Internet and the relevant company name, and information held in HM Land Registry, which requires the full address of the person connected with the property or the title number. Within this context, Ms Marzec contends that a person’s address is recognised as private, including generally by the media. Ms Marzec submits that there is no question of the husband having waived his rights of privacy by entries having been made on the register. Ms Marzec further relies on the decision of Briggs J (as he then was) in RocknRoll v News Group Newspapers Ltd [2013] EWHC 24 (Ch) in support of a submission that, in any event, the address of the family home engages the Art 8 right to respect for private life.

Ms Marzec takes issue with the submission of TMG that there is a public interest in the disclosure of the information in issue on the basis that it concerns a Royal family. Ms Marzec objects that the assertion is unsupported by evidence or recognised principle. Further, Ms Marzec asks, rhetorically, whether TMG’s submission is that it is in the public interest for the financial affairs of any foreign Royal family to be disclosed, just European Royal families or just the Luxembourg Royal family? Ms Marzec submits that none of the Luxembourgian Royal family hold any official or public position in this jurisdiction nor are they supported by the British taxpayer. During her oral submissions, Ms Marzec submitted that whilst this is a case that might be of interest to the public, it is not a case that engages the public interest.

Finally, Ms Marzec questions how effective engaging with press criticism by way of the publication of the information the wife seeks to disseminate will be. Ms Marzec submits that the publication of such information would do nothing to correct the false reporting without the provision of information to which the implied undertaking applies to provide the proper context. Ms Marzec submits that without knowing the totality of the assets the information that the wife submits she should be permitted to publish is effectively meaningless.

As I have already stated, the wife seeks to place in the public domain information to rebut what she contends have been damaging attacks on her in the media. The precise ambit of the terms of the order proposed by the wife were not easy to discern. However, Mr Stables submits that the wife should be permitted to disclose to the media the terms of her open offer (save as it relates to the children) and the current circumstances of the ownership and control of the family home and her occupation of it. In the wife’s supplemental submissions, the information sought to be disclosed is described as “only those bare details of the offer of settlement and/or circumstances of the family home” adequate to convey the true picture by way of correction of misrepresentations in the press. Mr Stables contends that the disclosure of the information the wife asserts she should be permitted to disclose to the media with respect to her open offer will demonstrate that she is the antithesis of the “gold digger” she has been portrayed to be. In his supplementary submissions, Mr Stables further submits that the publication of the offer and the information concerning the family home will rebut the assertion that the wife has everything provided to her by the Royal family and lives in the lap of luxury.

Within this context, the wife does not oppose the principle of an order so far as it seeks generally to protect the privacy of information provided under compulsion by the husband save to the extent that these are inevitably tied to her wish to make her own financial position clear publicly. In advancing his submissions as to the latter, Mr Stables seeks to draw a distinction between information that is described as “relating solely to” the wife and information provided by the husband under compulsion within these proceedings.

Mr Stables acknowledges that, having regard to the decision in Clibbery v Allen, there is an implied undertaking of confidentiality when parties to financial remedy proceedings are compelled to give full and frank disclosure of their financial affairs. However, he submits that the implied undertaking does not operate against the information in issue. In this regard, he relies on Clibbery v Allen at [72] where the court stated as follows:

“[72] In order to achieve compliance with 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 purpose of proceedings. It is the protection provided by the court in cases of compulsion”.

Mr Stables submits that where the information does not come from the counterparty then whether the information in issue was compelled or volunteered becomes irrelevant as the information was never that of the counterparty and, thus, cannot be the subject of the implied undertaking. Mr Stables submits that the wife’s open offer comes from the wife and accordingly falls outside the operation of the implied undertaking. With respect to the information relating to the family home, Mr Stables submits that this is the wife’s own information, or information provided by a third party, and is information that is provided by a third party and/or already in the public domain by reason of publicly available details held at HM Land Registry. Within this context, Mr Stables submits that the implied undertaking cannot operate against the information in issue because that information was not sought from or disclosed by the husband.

Further, Mr Stables submits that the information that the wife seeks to publicise is information that she has volunteered. Mr Stables submits that the implied undertaking cannot therefore operate against the information in issue because that information was not obtained under compulsion. Mr Stables relies on A v A; B v B [2000] 1 FLR 701 as authority for the proposition that an implied duty of confidentiality does not extend to information that a party chooses to provide. Within this context, Mr Stables asks the court to note that the offer made by the wife was made voluntarily, well ahead of the date by which the FPR 2010 require an open offer to be made. Further, Mr Stables once again submits that the information concerning the family home is information provided by a third party and/or information that is already in the public domain. Within this context, Mr Stables submits that the implied undertaking cannot operate against the information in issue because that information was not provided under compulsion.

Within the context of the foregoing submissions, Mr Stables submits that the wife is free to deal with her own information in this respect as she wishes, as is the media, subject to the law more broadly on confidentiality and privacy. He contends that there can be no implied undertaking towards one’s own offer, at least when expressed in simple and absolute terms isolated from any financial information of the other party, in contrast, for example, to an offer containing references to, or calculations linked to earnings, investments and the like. With respect to the information concerning the family home, within the context of the foregoing legal submissions he submits that, likewise, no implied undertaking arises and the wife is free to disseminate that information.

Having sought to establish that the implied undertaking does not operate to prevent the wife from publishing the information she seeks to provide to the media, Mr Stables further submits that the balancing exercise with respect to the Convention rights engaged comes down in favour of not otherwise restricting publication by order of the court.

In his supplemental written submissions on behalf of the wife, Mr Stables suggests, but does not assert outright, that the information which the wife seeks to disclose may not engage the rights under Art 8 at all, in which case the Art 10 and Art 8 rights of the wife and the Art 10 rights of the media will, submits Mr Stables, be “unopposed” in the balance. Mr Stables submits that the husband has put no authority before the court demonstrating that the proposed publication of financial information engages Art 8 rights. In this respect, the wife adopts the submissions of TMG regarding the extent to which financial information is private in character. Within this context, Mr Stables submits that this case is far removed from the facts of such cases as PJS v News Group Newspapers which concerned quintessentially private matters.

In any event Mr Stables submits that the Art 10 rights engaged in this case must weigh heavily in the balance. Mr Stables submits that the wife’s Art 10 right to freedom of expression is not extinguished because of her being an applicant in financial remedy proceedings. He further submits, relying on the decision in Blunkett v Quinn [2004] EWHC 2816 (Fam) at [22] that the publication of material with a view to correcting false impressions and misconceived facts will secure the wife’s Art 8 rights. In his supplemental submissions, Mr Stables also submits that Art 10 confers on the wife a “right to tell one’s own story”, citing Roddy (A Child)(Identification: Restriction on Publication) [2004] 2 FLR 949. He submits that if the case is to be written about then it should be written about accurately and that the information the wife seeks to publish will assist in this aim.

Within this context, Mr Stables submits that if the court accepts that the implied undertaking does not operate in respect of the information the wife seeks to disclose, there is no proper basis for concluding that the balancing exercise comes down in favour of otherwise preventing the wife from publishing her open offer and certain information regarding the former matrimonial home. Mr Stables submits that the corollary of this position is that if the court were to conclude that the implied undertaking does operate to prevent the wife from publishing the information she seeks to provide to the media, the balancing exercise with respect to the Convention rights engaged comes down in favour of ordering publication notwithstanding the operation of the implied undertaking.

With respect to the husband’s contention that the publication of the broad terms of the wife’s offer will be essentially meaningless absent the publication of information in respect of which the implied undertaking operates for context, Mr Stables submits that the wife’s offer is so self-evidently reasonable that context by way of publication of the detailed information on which the offer is based will not be required. Finally, with respect to the limited ambit of the public domain proviso proposed by the husband, Mr Stables submits that the terms sought by the husband would result in a wholly artificial situation whereby the national media would be prevented from reporting material already in the public domain elsewhere in the world, to which the public have ready access.

On behalf of TMG, Mr Callus accepts that in circumstances where this application concerns a reporting restriction order, the court is required to balance the competing rights engaged in this case in arriving at a decision as to whether such an order can be said to be necessary and proportionate. Mr Callus submits that the rights engaged are the Art 6 and Art 8 rights of the parties and the Art 10 rights of the wife, TMG and “their readerships”. Mr Callus submits that several matters will bear on the balancing exercise.

Mr Callus reminds the court that in undertaking the balancing act, the Court is bound by s 12(4) of the Human Rights Act 1998 to have particular regard to the importance of the Art 10 right to freedom of expression and, where the proceedings relate to information which a respondent claims, or which appears to the court, to be journalistic, to have regard to the extent to which that information has or is about to become available to the public, or the extent to which it would be in the public interest for it to be published. Mr Callus further reminds the court that s 12(4)(b) of the 1998 Act requires the court to have regard to any relevant privacy code and submits that, in the context of this case, that code is the IPSO Editor’s Code of Conduct.

With respect to information in the public domain, Mr Callus submits that the 1998 Act covers information that has entered the public domain by whatever means, which means will include foreign and non-media sources of journalistic material. As to information contained in public registers such as HM Land Registry and, Mr Callus submits, at Companies House, Mr Callus contends that such information is clearly in the ‘public domain’ for the purposes of s 12 and is so for good public policy reasons. He relies on the analysis of Mostyn J in Appleton v Gallagher at [30]in this regard. Mr Callus concedes that information that is in the public domain may still be the subject of a reporting restriction order where further publication would amount to intrusion constituting a disproportionate interference in a person’s Art 8 rights.

With respect to public interest, Mr Callus submits that, for the purposes of s 12(4)(a)(ii) of the Human Rights Act 1998, it is in the public interest for the information that forms the subject matter of this application to be published. Mr Callus submits on behalf of TMG that it is in the public interest to allow a public figure to explain her dispute with a member of the Royal family of which she has been part and the financial arrangements of that family, and that the appropriateness of such arrangements are matters of legitimate public discussion in a democratic society.

With respect to the relevance of other statutory provisions to the balancing exercise to be undertaken having regard to the rights engaged, Mr Callus does not for the purposes of his submissions in the case, argue with the proposition that s 1 of the Judicial Proceedings (Regulation of Reports) Act 1926 is not applicable in this case in circumstances where these proceedings are being heard in private, noting the decision of Mostyn J in Appleton v Gallagher, which distinguishes the decision of the President in Rapisarda v Colladan [2014] EMLR 26 on the grounds that the 1926 Act only applies to cases being heard in open court. Mr Callus further concedes that s 12 of the Administration of Justice Act 1960 does not apply in this case, as this court is not exercising its jurisdiction in relation to children and is not dealing with a case concerned “wholly or mainly” with the maintenance of children. However, Mr Callus does submit that the body of case law describing what information s 12 of the 1960 Act permits to be published should be borne in mind by the court when considering “appropriate levels of privacy” in financial remedy cases. In this respect, Mr Callus submits that in determining where “the line” is to be drawn in financial remedy cases, regard should be had to where Parliament has drawn the line by means of s 12 of the Administration of Justice Act 1960.

With respect to the relevance of the position at common law to the balancing exercise, as to the operation of the implied undertaking as between the husband and the wife Mr Callus submits that, whilst Butler-Sloss P stated in Clibbery v Allen that the implied undertaking extended to material ‘voluntarily’ disclosed, this proposition is not firmly established, citing the differing positions taken in A v A [2000] 1 FLR 201 and Associated Newspapers v Bannatyne [2015] EWHC 3467 (Ch). Mr Callus submits that the view taken by Butler-Sloss P in Clibbery v Allen in any event simply reflects the fact that the ambit of the disclosure obligations on parties to financial remedy proceedings is so wide that ‘voluntary’ disclosure merely pre-empts disclosure that would be compelled if it was not volunteered.

Within this context Mr Callus submits that the operation of the implied undertaking as between the husband and the wife cannot extend beyond material that a party obtains from a counterparty under compulsion or, in financial remedy proceedings, voluntarily to pre-empt compulsion. Accordingly, Mr Callus submits that the implied undertaking cannot apply to “a party’s own information”, which that party is free to share with the press and the press are free to report, nor to information provided voluntarily by a third party. Mr Callus’ submissions regarding the effect of this line of argument on the publication of open offers were not precisely clear. However, Mr Callus appeared to submit that a party can make the fact of their open offer public without “inherent” breach of the implied undertaking, although he appears to concede that the publication of the terms of the offer “may” engage the implied undertaking if reference were made to the counterparty’s compelled disclosure. Mr Callus submits that there is nothing in the “status” of the party’s own open offer itself that gives rise to the implied undertaking as it is not received from the counterparty. The offer itself is not a compelled disclosure says Mr Callus.

With respect to the question of the extent to which the implied undertaking binds the media, whilst purporting to “reserve” its position on the issue of collateral effect, Mr Callus proceeds to argue the point and to offer submissions in the alternative depending on the conclusion reached.

Mr Callus argues that the recent decisions of Copper-Hohn v Hohn [2014] EWHC 2314 (Fam) and Appleton v Gallagher wrongly extend the operation of the implied undertaking to the press in a manner that is not supported by the decision in Clibbery v Allen, in which, Mr Callus submits, the Daily Mail was not itself in contempt, and which is contrary to the basis on which the House of Lords decided Home Office v Harman [1983] AC 280. Within this context, Mr Callus submits that the extension of the implied undertaking to the press, absent any interference with the administration of justice, is also contrary to authority having regard to Clibbery v Allen at [54] and impermissibly extends the principle of contempt of court for reporting proceedings held in private beyond the remit intended by Parliament, as evidenced by the ambit of s 12 of the Administration of Justice Act 1960.

Within this context, Mr Callus submits that if, contrary to these submissions, the implied undertaking correctly extends to the press, then it is difficult to see how it can be argued that a reporting restriction order is ‘necessary’ in circumstances where the press is bound by the implied undertaking, save in so far as the court considers that a party’s Art 8 rights require protection greater than that afforded by the implied undertaking. If the implied undertaking does not bind the press, then, submits Mr Callus, in determining the extent to which a reporting restriction order is ‘necessary’, the court should not ordinarily go beyond the ambit of s 12 of the 1960 Act or the terms of the 1926 Act save where there is cogent evidence justifying a different approach.

Turning finally to the balancing of the rights engaged, Mr Callus emphasises that, even if the position at common law falls to be considered in the balancing exercise, there is the highest authority that at the outset the scales are in equilibrium, with no right having presumptive authority. With respect to Art 8, Mr Callus submits that this is not a case where the ‘intrusion’ aspect of interference with Art 8 rights is likely to arise as the information in issue is financial in nature, rather than information that concerns, for example, sexual, medical or criminal matters. Within this context, Mr Callus submits that the publication of the information is not apt to cause embarrassment and/or distress. Further, Mr Callus submits that whilst financial information is capable of engaging the Art 8 rights of the parties, it lacks the character of information relating to the private dignity of the person that might be engaged by information relating to sexual or medical information. Finally, in circumstances where the information is financial in nature, Mr Callus submits that there is no question of the children’s Art 8 rights being engaged.

With respect to the Art 10 rights engaged, Mr Callus emphasises the importance of the Art 10 right to freedom of expression. In his supplemental submissions, Mr Callus expands his submission that the financial arrangements of the Grand Duchy of Luxembourg are a matter of public interest. That public interest, submits Mr Callus, is fortified by the fact that those arrangements are subject to litigation in an English court and, accordingly, there is a public interest in the press being able to report how public money is being spent resolving the dispute. Finally, relying on the decision of Ryder J (as he then was) in Blunkett v Quinn [2005] 1 FLR 648 at [22], Mr Callus submits that, in addition to the wife’s right to tell her own story, there is also a public interest in correcting objective inaccuracy in the public domain, especially where it relates to reports of proceedings.

Pursuant to FPR r 27.10, financial remedy proceedings will be held in private save where the court directs otherwise. Pursuant to FPR r 27.10(2) proceedings held ‘in private' means proceedings at which the public have no right to be present. Pursuant to FPR r 27.11, and subject to the power of the court to exclude them in an appropriate case, accredited members of news gathering and reporting organisations may be present at proceedings held in private.

Pursuant to FPR r 27.11(3) accredited media representatives may be excluded where the court is satisfied that exclusion is necessary in the interests of any child concerned in, or connected with, the proceedings, for the safety or protection of a party, a witness in the proceedings, or a person connected with such a party or witness, for the orderly conduct of the proceedings where justice will otherwise be impeded or prejudiced. FPR PD 27B para 5.4 gives two specific examples of a situation where justice will otherwise be impeded or prejudiced, the first being 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. There is an embargo on access to court documents by the media.

Further, and within the context of the material in issue in this case, it is important to note that, pursuant to FPR r 27.11(1)(a), accredited members of news gathering and reporting organisations may not be present at hearings conducted for the purpose of judicially assisted conciliation or negotiation. As Holman J noted in Fields v Fields [2015] EWHC 1670 (Fam) at [5], in financial remedy proceedings the parties can take advantage of a “totally private and totally privileged” Financial Dispute Resolution hearing (FDR).

As is clear from FPR PD 27B para 2.4, FPR r 27.11 does not act to change or amend the legal principles governing the publication of information concerning family proceedings which accredited members of the media attending a hearing in private may collect. Further, as the Court of Appeal made clear in Clibbery v Allen, 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.Within this context, it is now well established that the foundation of the court’s jurisdiction to control the publication of information relating to family proceedings held in private is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court.

In Re S (A Child)(Identification: Restrictions on Publication) [2005] 1 AC 593 at [23], and having regard to its decision in Campbell v MGN Ltd [2004] 2 AC 457, the House of Lords observed that, with respect to the foundation of the jurisdiction to restrain publicity to protect private and family life, or to permit publication to protect freedom of expression, the foundation is now derived from Convention rights under the ECHR. In Re S (A Child)(Identification: Restrictions on Publication) at [17] it was made clear that the court exercises this jurisdiction by balancing the competing rights engaged in accordance with the following principles:

It is clear on the authorities, that the jurisdiction to restrain publicity to protect private and family life, or to permit publication to protect freedom of expression, articulated in Re S (A Child)(Identification: Restrictions on Publication) at [23] applies to financial remedy proceedings. In Spencer v Spencer at [25] and [26], in holding that the jurisdiction applied in financial remedy proceedings, Munby J (as he then was) noted that in Re S (A Child)(Identification: Restrictions on Publication) at [32] Lord Steyn had specifically rejected the assertion that the jurisdiction is confined to the protection of children and could equally be invoked by an adult.

As to the rights that fall to be considered when undertaking the required parallel analysis, in conducting the balancing exercise in financial remedy proceedings the court is ordinarily required to balance the rights engaged under Art 6, Art 8 and Art 10 of the ECHR. It is important to note in this context, that the Art 8 right to respect for private life of the children of the marriage will also be engaged in so far as any publication of the information in issue constitutes an interference in their private life (K v L [2012] 1 WLR 306 at [26]). I will examine the importance of each of the rights engaged, and the justifications for interfering with them when conducting the balancing exercise below. However, several additional points fall to be made at this stage with respect to the right to freedom of expression under Art 10.

Where the Art 10 right to freedom of expression is engaged and falls to be considered in the balancing exercise, as Mr Callus reminds the court, the Human Rights Act s. 12(4) requires the court to have particular regard to the importance of the Convention right to freedom of expression and, where the material in question is journalistic in nature, to the extent to which that information is already in the public domain or the extent to which it is, or would be, in the public interest for the material to be published. I start with two points regarding the concept of public domain.

First, in recent times the principles governing what may be termed the ‘public domain proviso’ have undergone considerable development to the point where (in cases where the complaint under Art 8 is one of intrusion rather than simply breach of confidentiality per se) even if the relevant material is in the public domain the repetition of that information will, in an appropriate case, be restrained as amounting to unjustified interference with the private lives not only of that subject but also of those who are involved with him or her (see F v Newsquest and Others [2004] EMLR 607, JIH v News Group Newspapers [2010] EWHC 2818 (QB), [2011] EMLR 177, CTB v News Group Newspapers Ltd and Thomas [2011] EWHC 1326 (QB), MBX v East Sussex Hospitals NHS Trust [2012] EWHC 3279 (QB) and Re A (Reporting Restriction Order) [2012] 1 FLR 239).

This principle will encompass cases in which material already in the public domain is in that domain outside the jurisdiction of England and Wales. Within this context, in PJS v News Group Newspapers [2016] AC 1081 at [35], the Supreme Court recognised that, in cases of intrusion, there may be a qualitative difference in intrusiveness and distress between that caused by publication on the Internet and that likely to be involved in unrestricted publication by the national media in hard copy as well as on their own internet sites and that, accordingly, the fact that material is available on the Internet and in foreign jurisdictions is not a bar to injunctive relief prohibiting publication in this jurisdiction.

Second, as regards the respective submissions on the extent to which information held by HM Land Registry may be said to be information in the public domain, the answer is provided by statute. The Land Registration Act 2002 s 1 provides the statutory basis for the maintenance of a register of title by the registrar. Within this context, s 66 of the 2002 Act provides as follows:

“66 Inspection of the registers etc

(1)

Any person may inspect and make copies of, or of any part of—

(a)

the register of title,

(b)

any document kept by the registrar which is referred to in the register of title,

(c)

any other document kept by the registrar which relates to an application to him, or

(d)

the register of cautions against first registration.

(2)

The right under subsection (1) is subject to rules which may, in particular—

(a)

provide for exceptions to the right, and

(b)

impose conditions on its exercise, including conditions requiring the payment of fees.

Within this context, the Government’s Explanatory Notes state as follows with respect to s 66 of the Land Registration Act 2002:

“Section 66 provides that, subject to any exceptions specified in rules, anyone may inspect and make copies of the register of title together with any other document either referred to in the register or kept in relation to an application affecting that register. This extends the current legislation, which excepts leases or charges (or copies of them) from inspection. In addition, documents kept by the registrar relating to an application, but not referred to in the register can currently only be inspected at the registrar’s discretion. A right to inspect and copy any such document is now established. Anyone may also inspect the register of cautions against first registration. Rules will govern how those rights are exercised, including the requirement to pay fees.”

In the circumstances, all documents on the Land Register are open to inspection and copying by anyone as of right under section 66 of the Land Registration Act 2002 unless an application has been made under the Land Registration Rules 2003 to designate a document as exempt from the general right of inspection under the 2002 Act. There is no evidence that such an application has been made in this case.

However, in Green Corns Ltd v Claverley Group Limited [2005] EMLR 31, Tugendhat J upheld a claim for an interim injunction to restrain disclosure of the addresses of the claimant’s care homes for vulnerable children, even though they were all publicly accessible at HM Land Registry. Tugendhat J noted that, in line with the decisions in R (Robertson) v Wakefield MDC [2002] QB 1052 and (Robertson) v Secretary of State for Home Department [2003] EWHC 1760, there is no doubt that the home address of an individual is information the disclosure and use of which that individual has a right to control in accordance with Art 8. Within that context, Tugendhat J held that the addresses of the homes in question should be protected from publication on the basis that the information as to the addresses that the claimant sought to protect was not in the public domain to the extent, or in the sense, that re-publication could not have significant effect or that the information was not eligible for protection at all. Tugendhat J also made clear that the fact that an address in conjunction with other information may be regarded as a “highly sensitive combination” will be relevant to the question of whether protection should be afforded by way of injunctive relief, the combination in that case being an individual's address, the fact that the person is a child, and the fact that that child has a troubled history of mental health, sexual life and involvement in the commission of crime.

With respect to the question of public interest, which TMG submits supports publication of the information in issue in this case, the courts have long drawn a distinction between the publication by the press of facts and information capable of contributing to a debate in a democratic society and publishing matters aimed solely at satisfying the curiosity of the public, often referred to as the difference between matters of public interest, in the legal sense, and matters of interest to the public. Within this context, in Couderc v France [2016] EMLR 19, in a passage relied on by the Supreme Court in PJS v News Group Newspapers, the ECtHR observed as follows:

“[100] The court has also emphasised on numerous occasions that, although the public has a right to be informed, and this is an essential right in a democratic society which, in certain special circumstances, can even extend to aspects of the private life of public figures, articles aimed solely at satisfying the curiosity of a particular readership regarding the details of a person's private life, however well known that person might be, cannot be deemed to contribute to any debate of general interest to society: see Von Hannover, cited above, para 65; MGN Ltd v United Kingdom (2011) 53 EHRR 5 , para 143 and Alkaya v Turkey (Application No 42811/06) (unreported) given 9 October 2012 , para 35.

[101] Thus, an article about the alleged extra-marital relationships of high-profile public figures who were senior state officials contributed only to the propagation of rumours, serving merely to satisfy the curiosity of a certain readership: see Standard Verlags GmbH v Austria (No 2) (Application No 21277/05) (unreported) given 4 June 2009, para 52. Equally, the publication of photographs showing scenes from the daily life of a princess who exercised no official functions was aimed merely at satisfying the curiosity of a particular readership: see Von Hannover, cited above, para 65, with further references. The court reiterates in this connection that the public interest cannot be reduced to the public's thirst for information about the private life of others, or to the reader's wish for sensationalism or even voyeurism.”

Finally, in respect of the Art 10 right to freedom of expression in this case, the wife submits that she should be entitled to publish the information in issue in this case to redress what she submits has been damage to her reputation and misreporting of her position. It is well established that the court may release information that is otherwise confidential to family proceedings to correct the record or to address false narratives that have entered the public domain (see for example MBC v Haigh, Tune and X (By the Children's Guardian) [2012] 1 FLR 577 and Bristol City Council v NGN Ltd and Others [2012] EWHC 3748 (Fam), [2013] 1 FLR 1205). As Ryder J (as he then was) noted in Blunkett v Quinn [2005] 1 FLR 648 at [22] the ability to correct false impressions and misconceived facts will act to assist a party to secure their Art 6 and 8 rights.

Once again, whether such publication should be permitted will involve a balancing of the competing rights engaged. In this context, in Re C (A Child) (Application by Dr X and Y) [2015] EWFC 79 the President was required to determine an application by a doctor and his colleague seeking disclosure and permission to use papers from care proceedings and proceedings before the General Medical Council in circumstances where it was alleged that misinformed press reporting about the care proceedings in which he had acted as an expert had severely damaged his reputation and ability to work in the field of child protection. The President made clear that in balancing the competing interests, the fact that a person has been traduced in the press does not, of itself, liberate that person from his or her continuing duties of confidentiality nor, of itself, does it justify removing the limitations on the use of the family court documents arising under the relevant legal principles (in that case section 12 of the Administration of Justice Act 1960).

Before turning to apply these principles to the facts of this case, it is important to note that, in financial remedy proceedings, the application of the jurisdiction to restrain publicity in order to protect private and family life, or to permit publication to protect freedom of expression articulated in Re S (A Child)(Identification: Restrictions on Publication) takes place in the context of some uncertainty with respect to the statutory position, and in the context of the implied undertaking.

Dealing first with statute, in circumstances where the focus of financial remedy proceedings is not the welfare of children (albeit, pursuant to s 25(1) of the Matrimonial Causes Act 1973, the first consideration of the court is the welfare of the children of the marriage) but the financial affairs of the parties, the Administration of Justice Act 1960 s 12 will not apply to the vast majority of financial remedy cases (see Spencer v Spencer [2009] 2 FLR 1416 at [14]). However, it remains unclear whether the restrictions set out in the Judicial Proceedings (Regulation of Reports) Act 1926 s.1(1)(b) apply to financial remedy proceedings.

In Clibbery v Allen [2001] 2 FLR 819, Munby J (as he then was) expressed the obiter view at first instance that the 1926 Act did apply to what were then referred to as ancillary relief proceedings. On appeal in Clibbery v Allen [2002] Fam 261, Thorpe LJ took the contrary view but once again that view was both obiter and provisional. In Rapisarda v Colladon [2015] 1 FLR 584, which was not a financial remedy case and which was heard in open court, the President held 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. The President further concluded that, on the assumption that the 1926 Act perhaps applies to financial remedy proceedings, judges may in future wish to consider whether to exercise discretion in such cases under s.1(4).

With respect to the uncertainties surrounding the application of the 1926 Act, the President expressed the view in Rapisarda v Colladon that the fact there is still no firm, binding decision as to whether the 1926 Act applies to financial remedy proceedings is “truly a disturbing state of affairs”. This remains the position. In Appleton v Gallagher at [21] Mostyn J distinguished Rapisarda v Colladan on the grounds that the 1926 Act only applies to cases being heard in open court, and considered its relevance to the question of publicity in financial remedy proceedings to be that, in the context of judicial proceedings concerning the breakdown of a marriage, the privacy factor has, up to a point, been recognised by Parliament even for those cases heard in public. Having examined the point in Cooper-Hohn v Hohn [2015] 1 FLR 19, Roberts J re-emphasised the confused and confusing position to which the uncertainties regarding the applicability of the 1926 Act give rise. Despite the President observing in Rapisarda v Colladan that clarification regarding the applicability of the 1926 Act to financial remedy proceedings was required as a matter of urgency, such clarity is yet to emerge. Within the context of ongoing differences of judicial opinion regarding whether financial remedy proceedings are to be heard in private or in public, this additional legal uncertainty makes the landscape that litigants must navigate on the question of publicity in financial remedy proceedings all the more difficult.

In this case, whilst pointing up the issue, no party seeks to argue that s 1 of the 1926 Act applies to financial remedy proceedings heard in private. In circumstances where I have not heard detailed argument on the point, it is not appropriate for me to decide the question (see Spencer v Spencer at [20]). Further, I am satisfied that it is not necessary for me to decide the point for the purposes of determining the husband’s application.

Were the 1926 Act to apply in this case, I am satisfied that in deciding whether, in the exercise of the discretion conferred by s 1(4) of the 1926 Act, to make a direction that certain categories of information from these proceedings could be reported (which is, in effect, what the wife asks me to do), the exercise of the court’s discretion would involve the same process as deciding whether the reporting of certain information concerning these proceedings should be restrained beyond the operation of the implied undertaking (which is what husband asks me to do). Namely, an exercise of parallel analysis of the competing rights pursuant to the modern principles applicable to deciding whether information should be published, to which I will shortly come. In the circumstances, I am satisfied that the nature of the discretionary exercise I must undertake to determine the issue before me remains clear, even if the precise jurisdictional basis on which I must undertake it remains clouded in unhelpful uncertainty.

I turn next to the implied undertaking. The effect on the parallel analysis of competing rights of the implied undertaking that is recognised as arising in respect of information disclosed under compulsion in financial remedy proceedings has also been the subject of some debate. It is well established that the information to which the implied undertaking will apply will be information disclosed into the proceedings under compulsion, or information disclosed voluntarily the disclosure of which would have been compelled but for the co-operation of the party in question (Bourns Inc v Raychem Corpn [1999] 3 All ER 154 at 162 and Clibbery v Allan at [62]). As noted in Clibbery v Allan, in financial remedy cases the requirement of full and frank disclosure places a considerable degree of compulsion upon both parties. Within this context, in Clibbery v Allan at [73], Butler-Sloss P made clear that information disclosed voluntarily as a requirement of full and frank disclosure will be protected by the implied undertaking.

The purpose of the implied undertaking is to protect the administration of justice (Clibbery v Allan at [54]). Within this context, the implied undertaking has been held to afford a particular protection accorded in the interests of the proper administration of justice (Home Office v Harman [1983] 1 AC 280 at 308). Further, it is clear from Clibbery v Allen, that the operation of the implied undertakings does not preclude the need to undertake a balancing of the competing rights engaged where there is an issue over whether the information to which the implied undertaken applies should be published (see Clibbery v Allan at [82] and see Lykiardopulo v Lykiardopulo [2011] 1 FLR 1439). Within this context, the operation of the implied undertaking will not of itself constitute a disproportionate interference in Art 10 (see Clibbery v Allan at [82]). Rather, the fact of the implied undertaking, existing as it does to protect the proper administration of justice from the consequences of publication of information that might otherwise undermine that proper administration, is simply a factor to be weighed when determining where the balance lies.

As to the weight to be attached to the implied undertaking in the balancing exercise, within the context of the function of the implied undertaking being to protect the administration of justice, it is clear from the authorities that the protection afforded by the implied undertaking is considerable (see Clibbery v Allan [70]-[73]). In Clibbery v Allan,Butler-Sloss P observed as follows in this context at [72]:

“In order to achieve compliance with 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.”

Within this context, as Mostyn J recognised in Appleton v Gallagher, the existence of the implied undertaking is a weighty factor to be placed in the scales on the side of the right to respect for private life, as is the fact that the rules provide for financial remedy proceedings to be heard in private (see also DL v SL sub nom L v L (Ancillary Relief Proceedings: Anonymity) [2016] 1 WLR 1259).

Finally, as I have noted, TMG reserves its position on the question of whether the implied undertaking binds the media. In the context of an application to restrict the publication of information not yet in the possession of the media, it is, in any event, a rather arid question in this case. If the media already had in its possession the information in issue in this case, then the question of the extent that the media was itself bound by the implied undertaking might be of greater relevance to the balancing exercise. That however, is not the position here. In the circumstances, I am satisfied that it is not necessary to determine the question in this case. I note in passing that the authorities have repeatedly suggested that, in circumstances where the purpose of the implied undertaking is to protect the administration of justice, the implied obligation not to make improper use of discovered documents is independent of any obligation existing under the general law relating to confidentiality, is owed not to the owner of the documents but to the court and is enforceable by the court (see Home Office v Harman [1983] 1 AC 280 at 308 and see Riddick v Thames Board Mills Ltd [1977] QB 881 at 896 and Clibbery v Allan at [105]-[106]).

Having listened carefully to the helpful submissions of counsel and having considered the documentation that is before the court, I have decided that a reporting restriction order should be made and that the order should be expressed in terms which prevent the wife from publishing the terms of her open offer. With respect to the information concerning the family home, I have decided that the order should be expressed in terms which prevent the publication of that information. My reasons for so deciding are as follows.

I deal first with the importance of, and the justifications for interfering with, the Art 8 rights engaged in this case. Art 8 provides as follows:

The Art 8 rights of the husband and wife are plainly engaged in this case. I am entirely satisfied that, in line with the observation of Eady J in Author of a Blog v Times Newspapers Limited, the personal nature of their financial information engages both the husband’s and the wife’s right to respect for private life under Art 8.

With respect to the specific information that is the subject of this application, dealing first with the “bare details of the offer of settlement” by the wife, (which, absent any further illumination by Mr Stables, I have taken to mean the bare figure(s) and arrangements the wife proposes by way of settlement) it is plain that the information on which those proposed figures or arrangements are derived is information that is subject to the implied undertaking, having been provided pursuant to the duty of full and frank disclosure. It is less certain that the bare figure(s) and arrangements comprising the wife’s open offer that are derived from information that is subject to the implied undertaking would themselves be subject to the implied undertaking, as they are neither compelled nor information belonging to the husband.

However, I am entirely satisfied that, even bare, the figure(s) or arrangements offered in settlement of financial remedy proceedings between a husband and a wife upon the breakdown on their marriage engage both parties’ right to respect for private life under Art 8. Accordingly, such information is amenable to restrictions on publication depending on the outcome of a balancing exercise involving any competing rights. In my judgment, the same analysis applies to the information concerning the family home. In so far as that information does not engage the implied undertaking and/or is already in the public domain, it nonetheless engages the parties’ rights under Art 8. In circumstances where the former matrimonial home is their home, it will also engage the children’s Art 8 rights to respect for private life.

Turning to the importance of the Art 8 right to respect for private life in this case, its importance to the husband and the wife is based on several factors. Whilst members of the Luxembourg Royal Family, the husband and the wife have no official public role in Luxembourg, much less in this jurisdiction. Within this context, they are private individuals rather than public servants or individuals with a public role in this or another jurisdiction. Further, whilst their separation and the fact of their financial remedy proceedings has been made public, this is not a case in which either the husband or the wife has sought, thus far, to litigate the details of their personal or financial disagreements in public. Indeed, the wife has expressly called for the media to respect the family’s privacy for the sake of the children.

The Art 8 right to respect for private life is also of importance to both the husband and the wife in circumstances where they are engaged in financial remedy proceedings held in private. Whilst I accept that FPR r 27.10 allows the court to decide to hear the proceedings in public, it is plain on the face of FPR r 27.10 that the starting point is that such proceedings will be heard in private. This position is readily understandable in circumstances where the court is dealing with the facts and documents relating to the parties’ personal financial affairs. Within this context, unless the court has exercised its discretion under r 27.10(1)(b), any media in attendance pursuant to FPR r 27.11 will be attending a private hearing, as FPR r 27.11(1) expressly recognises.

Further, in this case the Art 8 right to respect for private life is important to the parties in circumstances where they are, and are expected by the court to be, engaged in an effort to compromise their financial remedy proceedings. Negotiations in proceedings of this nature are, by their nature, sensitive and complex. It is important that they can take place without undue pressure being brought to bear by one or other party and in circumstances where external influences that could disrupt or derail the delicate process of compromise are avoided. In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation. Once again, as Holman J noted in Fields v Fields at [5], such hearings are “totally private and totally privileged”. Within this context, I am satisfied that the husband has a legitimate expectation that the process of negotiating a settlement in these proceedings will be a private one.

Having regard to these matters, and whilst I accept there must be a question mark whether the bare details of the offer of settlement by the wife or the information concerning the family home engages the implied undertaking, in the circumstances of this case, the Art 8 right to respect for private life is a weighty factor in the balancing exercise, in particular because of its relevance to ensuring the efficacy of the parties’ efforts to compromise these proceedings.

The Art 8 right to respect for private life of the children is also important in this case. The ambit of the private life of the children is a wide one, encompassing not only the narrow concept of personal freedom from intrusion but also psychological and physical integrity, personal development and the development of social relationships and physical and social identity (see Botta v Italy (1998) 26 EHRR 241 at [32] and Bensaid v United Kingdom (2001) 33 EHRR 205 at [46] and [47]). Within this context, it is self-evidently important that, in the context of marital breakdown, the stability of the children’s circumstances should be preserved to the greatest extent possible. As recognised in K v L, this will extend to ensuring that the children are not adversely affected by publicity surrounding the breakdown and re-constitution of their family life. As I have noted, the wife too has recognised this in her public call for privacy for the benefit of the children.

That said, whilst in many cases it will be demonstrated that publicity will have an adverse impact on the child, this will not be the position inevitably. In each case the impact on the child of publication must be assessed by reference to the evidence before the court rather than by reference to a presumption that publicity will be inevitably harmful to the child (see Clayton v Clayton [2006] Fam 83 at [51]). In this case, it is important to recognise that the court does not have before it cogent evidence demonstrating that the children would have been adversely affected were the information in issue published, even though I acknowledge that seeing this litigation played out in the newspapers and online, or seeing publicity about the house they consider to be their home, is unlikely to be of positive benefit to children who are old enough to understand what is happening.

Within the foregoing context, I am satisfied that publication of the bare details of the open offer of settlement made by the wife and the information concerning the matrimonial home would constitute an interference in the Art 8 right to respect for private life of the parties and the children. To be lawful, such an interference must be justified by reference to Art 8(2). In these circumstances, I turn now to the justifications for such an interference.

First, in addition to the court being required by virtue of s 12(4) of the Human Rights Act 1998 to have regard to the particular importance generally of the right to freedom of expression when considering whether there is justification for interfering in the Art 8 right to respect for privacy, in the particular circumstances of this case the court must also take account of the public interest in a person about whom misinformation or falsehoods have been published being able to correct the record. As recognised in Blunkett v Quinn this is not only fair, but also acts to protect the fundamental rights from which the individual who has been traduced benefits under Art 6 and Art 8. In this context, in Pfeifer v Austria (2009) 48 EHRR 175 at [35] the ECtHR observed as follows:

“What is at issue in the present case is a publication affecting the applicant’s reputation. It has already been accepted in the Convention organs’ case-law that a person’s right to protection of his or her reputation is encompassed by Article 8 as being part of the right to respect for private life … The Court considers that a person’s reputation, even if that person is criticised in the context of a public debate, forms part of his or her personal identity and psychological integrity and therefore also falls within the scope of his or her ‘private life’. Article 8 therefore applies”.

The wife has a legitimate complaint that she has been unfairly and unjustly traduced in the press. The husband does not seek to depart from that analysis. Within this context, the matters outlined in the foregoing paragraph plainly fall to be placed in the balance of competing rights. However, as made clear in Re C (A Child) (Application by Dr X and Y), the court must also bear in mind that the fact that a person has been traduced in the press does not, of itself, liberate that person from his or her continuing duties of confidentiality nor, of itself, does it justify removing the limitations on the use of the family court documents arising under the relevant legal principles. It is also important to note when undertaking that balance, that an order preventing the wife from publishing the bare terms of her open offer and the information concerning the matrimonial home will not prevent the wife from speaking out in general terms about what she contends is the woeful mischaracterisation of her and of her motives in some parts of the media, as indeed she has done.

Second, when considering the factors that justify interference with the Art 8 rights engaged in this case, the court must have regard to the principle of open justice. In R v Legal Aid Board ex parte Kaim Todner (A Firm) [1999] QB 966 at 977 the purpose of open justice was described by Lord Woolf MR as being (a) to deter inappropriate behaviour on the part of the court; (b) to maintain the public's confidence in the administration of justice; (c) to enable the public to know that justice is being administered impartially; (d) to result in evidence becoming available which would not become available if the proceedings were conducted behind closed doors or with the parties' or witnesses' identities concealed; and (e) to make uninformed and inaccurate comment about the proceedings less likely. Within the context of financial remedy proceedings, as Holman J set out in Luckwell v Limata [2014] 2 FLR 168 at [5]:

“It is only if the public are able to see and hear for themselves how the proceedings unfold in the court room, what the oral evidence and arguments actually are, and indeed how the judge comports himself, that there is true transparency, open justice and public accountability. Jeremy Bentham famously said ‘Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial.’”

In the context of the specific facts of this case, and having regard to point (e) above in the context of the difficulties experienced by the wife, publicity in this case would make it less likely that journalists would have to rely on partisan, tendentious or inaccurate material in their reports where they had available to them material in respect of which the court is concerned (see Re L (A Child: Media Reporting) [2011] EWHC B8 (Fam) at [189]).

Against this however, and in addition to noting that Bentham went on to specify an exception to the principles he articulated in the form of “causes to be kept secret for the sake of the peace and honour of families”, it is also important to note that the question in issue in this case is not whether the proceedings should be heard in public, but rather whether an aspect of the negotiations between the parties to the proceedings should be made public. In this context, it is once again important to note that Parliament has expressly provided for an exception to the principle of open justice within the context of conciliation or negotiation, in the form of FPR r 27.11(1)(a).

In considering the justification for interfering with the Art 8 right to respect for private life in this case, I have also had regard to the fact that certain information concerning the family home is in the public domain in the form of information contained in HM Land Registry. I am satisfied that that information is properly said to be in the public domain by virtue of the terms of s 66 of the Land Registration Act 2002 and the Land Registration Rules 2003. However, I have also taken into account, having regard to the analysis of Tugendhat J in Green Corns Ltd v Claverley Group Limited, that that information is not in the public domain to the extent, or in the sense, that re-publication could not have significant effect.

Whilst the information is available on HM Land Registry, and whilst a person who has the address of the matrimonial home may search for that information, the address of, and title information with respect to the matrimonial home are not matters currently widely known to the public. Publication of the information concerning the family home would fundamentally change that position and would likely result in the widespread dissemination of the home address of the parties and, importantly, the children. Within this context, I also note that paragraph 1 of the IPSO Code lists a person’s home within its provisions as to privacy. Whilst it may be said that the publication of the address is not necessary for the wife to make public the information concerning the family home, once again that information is also in any event relevant to the conduct of negotiations, the importance of protecting the confidentiality of which I have already dealt with.

Finally, in respect of the question of information already in the public domain, and having read them in translation, I am not satisfied that the Family Pact or the public pronouncement of the Luxembourgish Prime Minister alter my analysis, as those matters concern aspects of the constitutional settlement in Luxembourg and not the financial arrangements of the parties.

In considering the justification for interfering with the Art 8 right to respect for private life in this case, I have had regard to the extent to which it is, or would be, in the public interest for the material to be published. I am not satisfied that a public interest argument is made out simply on the basis that the case concerns members of a Royal family, particularly in circumstances where the members of the Royal family in question do not hold that position in this jurisdiction and do not have a public role in this jurisdiction, or indeed in the jurisdiction of Luxembourg. Having regard to the ‘Public Interest’ section of the IPSO Code, and accepting the list therein is not exhaustive, I struggle to see how the status of the parties engages the public interest in this case. Further, there is no evidence before the court to establish that it does. In my judgment, the same analysis applies to the contention of TMG that it is in the public interest to publish the financial arrangements of the Grand Duchy of Luxembourg.

I do accept that there may be a public interest in reporting the fact that court time and resources are being deployed to determine the financial remedy proceedings between two foreign nationals (it being perfectly lawful and proper for those foreign nationals to litigate their dispute in this jurisdiction). However, the terms of the order sought do not prevent the media from reporting that fact. I further accept that, having regard to the terms of the IPSO Code, there is a public interest in, and that the reporting of this case may involve “Protecting the public from being misled by an action or statement of an individual or organisation”. However, once again, I am satisfied that the terms of the order sought allow the media to do this in general terms, whilst protecting the specific details of the parties’ personal financial information.

I turn next to the importance of, and the justifications for interfering in the Art 10 right to freedom of expression. Art 10 provides as follows:

The right to freedom of expression is of particular importance in a democratic society. Beyond the stipulation set out in s 12(4) of the Human Rights Act 1998, the importance of the right to freedom of expression has been widely recognised. The right to freedom of expression has been described as the "touchstone of all human rights" (UN General Assembly Resolution 59(1) of 14 December 1946). There have been many erudite statements on the importance of the right to freedom of expression in a domestic context. To pick but one by way of demonstration, in R v Secretary of State for the Home Department ex parte Simms and Another [2000] 2 AC 115 Lord Steyn said at 126:

“Freedom of expression is, of course, intrinsically important: it is valued for its own sake. But it is well recognised that it is also instrumentally important. It serves a number of broad objectives. First, it promotes the self-fulfilment of individuals in society. Secondly, in the famous words of Holmes J (echoing John Stuart Mill), “the best test of truth is the power of the thought to get itself accepted in the competition of the market”: Abrams v United States (1919) 250 US 616, at 630, per Holmes J (dissenting). Thirdly, freedom of speech is the lifeblood of democracy. The free flow of information and ideas informs political debate. It is a safety valve: people are more ready to accept decisions that go against them if they can in principle seek to influence them. It acts as a brake on the abuse of power by public officials. It facilitates the exposure of errors in the governance and administration of justice of the country.”

The wife does not lose her right to freedom of expression by being a party to financial remedy proceedings. Preventing the wife from publishing the bare terms of her open offer and information concerning the matrimonial home would constitute an interference in her right to freedom of expression. To restrict publication of the information would likewise interfere with the right to freedom of expression of the media. Once again, in these circumstances, if it is to be lawful, such interference must be capable of justification by reference to Art 10(2).

I turn in this context to the justifications for interfering with the right to freedom of expression in this case. Once again, I have regard to the fact that, subject to contrary order of the court, the financial proceedings will be heard in private and relate to the parties’ personal financial affairs. I also have regard to the fact that the husband and the wife have no official public role in Luxembourg or in this jurisdiction, that they are private individuals rather than public servants or individuals with a public role, that this is not a case in which either the husband or the wife has sought to litigate the details of their personal or financial disagreements in public and that the wife has expressly called for the media to respect the family’s privacy for the sake of the children. In this context, I also remind myself that Art 10(2) recognises that restrictions on the right to freedom of expression may be necessary “for preventing disclosure of information received in confidence.”

Further, having regard to the nature of the material the wife wishes to publish, in my judgment it is also, once again, very important to have regard to the fact that the parties are, and are expected by the court to be, engaged in an effort to compromise their financial remedy proceedings. Within this context, in respect of the justifications for interfering with Art 10, it is important to note that the need to protect the administration of justice has long been recognised as a legitimate reason for derogating from the principle of open justice and that the need to protect the proper administration of justice remains an exception to the general common law rule regarding publication of information relating to proceedings held in private (Clibbery v Allan at [54]). Thus, in Attorney General v Leveller Magazine Ltd [1979] AC 440, 465 Lord Edmund-Davies said:

“And what appears certain is that at common law the fact that a court sat wholly or partly in camera (and even where in such circumstances the court gave a direction prohibiting publication of information relating to what had been said or done behind closed doors) did not of itself and in every case necessarily mean that publication thereafter constituted contempt of court. For that to arise something more than disobedience of the court's direction needs to be established. That something more is that the publication must be of such a nature as to threaten the administration of justice either in the particular case in relation to which the prohibition was pronounced or in relation to cases which may be brought in the future.”

The process of negotiation with a view to compromising the matter is intrinsic to financial remedy proceedings and the way the court seeks to do justice to the parties in those proceedings through the proper administration of justice. The Family Procedure Rules 2010 provide a framework in which such negotiations can take place. As I have noted above, the process of negotiating a settlement in financial remedy proceedings can be a complex and sensitive one. It is important that such negotiations can take place without undue pressure being brought to bear by one or other party through the agency of third parties and in circumstances where external influences that could disrupt or derail the delicate process of compromise are avoided.

In this context, confidentiality in respect of the negotiating process is very important. I again remind myself in this context that Parliament has recognised the sensitivity and confidential nature of negotiations by expressly providing in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation. Within this context, I also note that Art 6(1) permits the press to be excluded from all or part of a trial to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

In my judgment, the position set out in the foregoing paragraph is a weighty factor in the balance when determining whether the wife should be permitted to publish the bare terms of her open offer and the information pertaining to the family home. With respect to FPR 27.11(1)(a) and to paraphrase Lord Steyn in Re S at [21] in the context of the information in issue in this case, the fact that the rules make provision for the media to be excluded from hearings conducted for the purpose of negotiation is a legislative choice which cannot be ignored as a factor in the balancing exercise when considering whether the wife should be allowed to publish the terms of her open offer and the information concerning the family home.

Balancing the competing rights in this case, I am satisfied having regard to the respective importance of those rights, and the reasons for interfering with them in this case, that the Art 8 right to respect for private life outweighs the Art 10 rights engaged in this case. In my judgment, the need to protect the proper administration of justice by ensuring the confidentiality of the process of negotiation intrinsic to financial remedy proceedings and to the way the court seeks to do justice to the parties outweighs the need for the wife to exercise her right to freedom of expression by publishing the terms of her open offer and information concerning the family home in the press to redress attacks on her reputation. Within this context, it is not only the bare terms of the wife’s open offer that comprises information relevant to the conduct of negotiations, but so too the information concerning the matrimonial home.

I must measure this conclusion against the yardstick of proportionality. In my judgment, the order I intend to make is a proportionate response to the necessity of protecting the proper administration of justice in this case. There is, as Parliament has recognised, a pressing social need to ensure the confidentiality of negotiations that take place within the context of financial remedy proceedings. Without the order I intend to make, I am satisfied that, as Ms Marzec submits, in response to the publication of the bare terms of the wife’s open offer, the husband will be compelled to indicate publicly his position, not least because by virtue of his Royal status his personal wealth will likely be assumed, wrongly, to be vast. I am satisfied that I can take judicial notice of the fact that, thereafter, extensive comment in the media is likely, quite lawfully, to follow. This risks external pressure being brought to bear on one or both parties with respect to their negotiating positions.

It is undesirable to say the least to have negotiations in financial remedy cases proceed in the glare of publicity, influenced by the public’s view of what is and is not a fair offer, with the possibility of parties crafting offers with an eye to how they might play to the public and one or other party being placed under pressure to settle by public opinion. The process of negotiation becomes much more difficult where both parties fear that their offers and concessions “will be laundered in the media”, to use Ms Marzec’s phrase. Such a position would also risk giving rise to satellite litigation in respect of the publication of offers concerning, for example, what information in an offer is or is not protected by the implied undertaking. It is particularly undesirable that all this may be the case where Parliament and the courts have expressly recognised the confidentiality of negotiations in the context of financial remedy proceedings.

Against this, whilst I accept that my order will circumscribe to a certain extent the ability of the wife to seek to redress the consequences of her treatment by certain sections of the foreign media, the order will not prevent the wife from statingpublicly that she wants a fair settlement and has made a fair offer to try to achieve this (this court making clear that it says nothing about the validity of that assertion pending its determination of the substantive application) or from seeking to rebut other of the disparaging comments made about her. In the circumstances, the order I make does not constitute any sort of blanket prohibition on the wife addressing these matters. Further, I am satisfied that the terms of the order I make should, initially, last only until the conclusion of the proceedings. In circumstances where the justification for the order is to protect the administration of justice by permitting the parties to negotiate in conditions of confidentiality, it may be that, at the conclusion of the proceedings, the application of the balancing exercise will produce a different result. Accordingly, the order I make will be subject to review at the conclusion of the proceedings.

Finally, whilst I accept that the injunction will restrict the publication of a small amount of material that is already in the public domain, for the reasons I have already given, having regard to the analysis of Tugendhat J in Green Corns Ltd v Claverley Group Limited, I am satisfied that the information is not in the public domain to the extent, or in the sense, that re-publication could not have significant effect or that the information is not eligible for protection at all, that the information concerning the family home is not a matter currently widely known to the public, that publication would likely result in the widespread dissemination of the home address and that, in any event, the information is relevant to the process of negotiation between the parties.

Within this context, and within the context of the need to ensure that the information in question remains confidential in the interests of the proper administration of justice, I am satisfied that whilst the public domain proviso should not restrict the media from publishing information already in the public domain outside the jurisdiction, it should be subject to an exception in relation to information that is the subject matter of the order. Thus, the media will be able to publish information already in the public domain save where that information is prohibited from publication by the order.

The publication of gossip is not a new phenomenon. Over one hundred years ago, in their seminal article entitled “The Right to Privacy” (4 Harvard L.R. 193 December 15, 1890), Louis Brandies and Samuel Warren deprecated gossip in columns of the daily papers that “belittles by inverting the relative importance of things, thus dwarfing the thoughts and aspirations of a people” and that “crowds the space available for matters of real interest to the community”. The rise of the Internet and social media adds a further dimension to the milieu of gossip once traditionally the purview of the print media. Constituencies coalesce on social media and ‘below the line’ in respect of stories that appear online, which constituencies consider themselves entitled to pass definitive, and frequently caustic judgment on people they have never met and about whose true character and circumstances they know very little, often coming ultimately to concrete and seemingly immovable conclusions based on little more than assumption and speculation.

This is a legitimate function of the right to freedom of expression and, subject to the limits set by the criminal law and the law of libel, all perfectly lawful. However, it is difficult not to have a degree of sympathy for the wife given the manner in which she has been traduced by some sections of the media abroad and the comments and speculation she has had to endure from others as a result. Her desire to seek to set the record straight is understandable. Be that as it may, in ensuring the proper administration of justice in financial remedy proceedings, it is vital that the court safeguards the integrity and efficacy of all aspects of its own proceedings. For the reasons I have given, to publish the bare terms of the wife’s open offer and the information concerning the family home will, in my judgment, act to undermine the administration of a crucial process the court is required to oversee in order to do justice between the parties.

Having regard to the foregoing analysis, on balance I am satisfied that the court should prohibit the wife from publishing the bare terms of her open offer and the information concerning the family home. Having regard to the balance between the respective rights engaged, I am satisfied that to do so is proportionate to the necessity in a democratic society of protecting the administration of justice by ensuring that parties to financial remedy proceedings can negotiate in conditions of confidentiality with a view to resolving their disputes. Within this context, I make an order in the terms of the draft order set out in the Schedule to this judgment.

That is my judgment.

Duration

Who is bound

Territorial Limitation

Undertakings

Publishing restrictions

Publication of this order

What is not restricted by this Order

Service

Further applications about this Order

The Applicant Husband and the Respondent wife are engaged in financial remedy proceedings before the High Court of England and Wales. Those proceedings are ongoing.

The purpose of this order is to seek to protect the confidentiality of the parties’ financial arrangements and their negotiations within the context of their financial remedy proceedings, pending resolution of the same by agreement or determination of the court.

In the circumstances, the court has ordered that the matters set out at Paragraph 6 of this order shall not be published pending the conclusion of the financial remedy proceedings between the parties.