‘A constitutional principle found in the common law’

The Civil Procedure Act 1997 and the Civil Procedure Rules 1998 made under that Act ghettoised family proceedings, in the sense that, eventually (ie from April 2011, when Family Procedure Rules 2010 (FPR 2010) were finally made) family proceedings became subject to a set of rules partly different from other civil proceedings. From April 2011 civil proceedings rules (as had hitherto been the case: Rules of the Supreme Court 1965 (RSC) etc) ceased directly to apply to family proceedings.

The law which governs all proceedings is the common law; but detail of procedural rules as between family and civil proceedings fissiparates increasingly as time goes on. Eminent amongst common law principles is that of open justice — briefly, elegantly and authoritatively defined by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

“[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.”

So – over the past twelve months – how has the common law been developed in the area of open justice, in family proceedings and in other common law cases which apply to family law? The subject is not just a question of saying a hearing will be ‘in private’ (FPR 2010 r 27.10) or not (see eg FPR 2010 r 30.12A for family proceedings appeals). It encompasses also such subjects as:

  • Release of court material before, during and after a hearing
  • Anonymity of parties and witnesses
  • Reporting restrictions and publication of law reports and of what happens in courts

Release of court material

The high point of open justice litigation in 2019 is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), sought release of documents in a case which concerned asbestos and which had been settled. A High Court master made a wide release order. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court is significant on release of court materials from all forms of court proceedings (civil, family, criminal etc): and see Scott v Scott and release of court material on this blog.

The Supreme Court examined to what extent can any court in its inherent jurisdiction and under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions) direct release of court material to a non-party. Giving further Supreme Court impetus to Guardian v Westminster (above) it was held that the following material can be released by order of a court:

  • skeleton arguments and other written submissions (Cape Intermediate in CA [2018] EWCA Civ 1795; [2019] 1 WLR 479 at  [69]; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984);
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
  • any other document which it is necessary for the court to release to comply with the open justice principle.

The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.

Cape Intermediate v Dring in action: a ‘judicial decision’

Cape Intermediate v Dring was considered and explained by Morgan J in Re Z [2019] EWCOP 55 (20 December 2019) in the Court of Protection. Z lacked capacity to manage his affairs. His wife, brother and daughters had been involved in Court of Protection proceedings. His son JK had not; but wanted to have released to him after the proceedings certain material which had been before the judge. (A fuller post on this case only can be found here: Judge’s subservience to Parliament and the government.)

Morgan J had dealt with the case by what amounted to a consent order; but it involved him in certain judicial decisions: for example, as to whether on the uncontested medical evidence he should declare that Z lacked capacity (he decided, yes) and whether he should deal with issues on whether there should be a power of attorney by formal court declaration. The fact that he had to decide these points judicially (despite the agreement of the family members involved) was, he said, the criterion by which he decided whether there was a justiciable decision which drew in JK’s application. Yes he said, there was such a decision; but, on JK’s application, he was not prepared to order release of material. JK had not proved sufficient grounds to justify entitlement to an order (at [73]).

In his review of the law prior to applying that law to JK’s application Morgan J employed principles of open justice, as explained in Cape Intermediate v Dring. He was conscious that his judgment was an important working out of the Cape Intermediate principle and he gave judgment in open court accordingly.

On release of court material generally, see Family law no island (2): Release of family courts hearing documents. A lot remains to be done to help those attending court to make sense of hearings and if they are to be properly said to be open court hearings (as Lord Scarman pointed out nearly forty years ago in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). But that is another case, another day…

Anonymity

Anonymity is a crucial aspect of the open justice principle (see for example, PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251 and Khuja v Times Newspapers Ltd [2017] UKSC 49, [2019] AC 161; [2017] 3 WLR 351); but the principles on which it is based in first instance family proceedings – and as the law now stands – is difficult to define, outside children proceedings. For example in CB v KB [2019] EWFC 78 (20 December 2019, Mostyn J) the parties were accorded anonymity; but I am told it is not difficult to identify the pop-singer from the description provided on the back-ground to the formation of his group set out by Mostyn J in paras [6] and [7]. In a recent children’s case, anonymisation extended only so far as for the judge to move by one letter of the alphabet all the parties’ initials; so if initials would identify them the judge’s anonymisation was limited.

On anonymity generally, the position in the Court of Appeal is clear (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523, [2018] 1 FLR 426): full publicity of names in the absence of a court order. The position in children proceedings (as to the children) is clear. But beyond that? For example, of published financial relief first instance proceedings of the 20 I have noted only six are anonymised.

So how to advise a client whose proceedings are to be heard in a family court? A starting point must be AAA v Rakoff  [2019] EWHC 2525 (QB) (Nicklin J) (now renamed Lupu etc -v- Rakoff etc) where a group of pole dancers were refused anonymity in their proposed litigation. As explained in my earlier post, In praise of the common law: sources of law and open justice, the case concerned claimants, nine of whom were pole dancers.  They brought proceedings seeking to restrain the defendant from using video footage of them. The first defendant was a group called ‘Not Buying It’, which campaigns against sexual entertainment venues. Anonymity was the first – and main – issue dealt with by Nicklin J.

Anonymity: withholding a name and reporting restrictions

Any anonymisation application has two parts said Nicklin J: (1) to withhold the name of the relevant party in the proceedings; and (2) a reporting restriction order prohibiting identification of the anonymised party (‘a reporting restrictions order’); and see draft orders in Practice Guidance (Interim Non-Disclosure Orders)  [2012] 1 WLR 1003 (INDO)). To deal with these orders the judge summarises the case law – including Guardian v Westminster and Cape Intermediate v Dring (both above) which, as he says, underlies the open justice principle:

“[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.”

In Zeromska-Smith v United Lincolnshire Hospitals NHS Trust [2019] EWHC 552 (QB) (Martin Spencer J) a claimant applied for damages for psychiatric injury arising out of the stillbirth of her daughter. She was denied anonymity (CPR 1998 r 39.2(4) on anonymity applied). Further, application should have been made earlier in the proceedings and on notice to the press, not at the outset of the case (a similar point to that made by Gloster LJ in Norman v Norman (above) (application for anonymity in appeal proceedings must be made on notice and should be made in the appellant’s notice). By contrast in XW v XH [2019] EWCA Civ 549,[2019] 1 WLR 3757, [2019] 2 FLR 431 the appellant successfully applied for anonymity in a reporting restrictions order in the Court of Appeal (CPR 1998 Pt 52 and r 39.2(3)). She was an appellant wife who applied in advance of the hearing of her financial relief appeal. The Court of Appeal order was made due to interests of the parties’ child whose rights under Article 8 of the European Convention on Human Rights 1950 were held to outweigh the Article 10 rights of the press.

In R (TT) v Registrar General for England and Wales [2019] EWHC 1823 (Fam) Sir Andrew McFarlane P, sitting in the Administrative Court and Family Division, allowed a media appeal for removal of an anonymity order. The man wanted to be registered as father of a child to whom he had given birth, after his transition to male gender. The father had courted extensive publicity. Only the anonymity of the child was to be protected, said Sir Andrew.

Criminal and family proceedings

Plymouth City Council v Wilkins [2019] EWFC 70 – a case in which Baker LJ sat as a High Court judge (he had heard the case before his elevation) – has attracted a variety of publicity, mostly because it was heard as care proceedings (Children Act 1989 Pt 4) where the judge held that both parents were responsible for their child’s injuries; whilst in criminal proceedings only the mother was convicted. Charges against the father were withdrawn from the jury. The father sought a review of the decision in the care case; though, in effect, he withdrew from those proceedings. Baker LJ upheld his original Pt 4 proceedings decision.

All parties agreed that the child’s name should not be publicised. The mother said, subject to that, that judgments should be published without anonymisation. The father agreed, save that he wanted his name anonymised. The local authority and children’s guardian were neutral. The parents’ names were both publicised in the criminal proceedings. The judgments should be published, said Baker LJ, with only the child’s name withheld.

This subject will be of still more significance if the Domestic Abuse Bill – which combines respectively civil with criminal jurisdictions – finds its way onto the statute book. The critical feature in the Plymouth cases was not publicity, but respective standards of proof (crime and civil). That issue, as far as I can tell, is not dealt with in the draft bill.

Reporting restrictions

The subject of reporting restrictions (central to the publication limitations in Administration of Justice Act 1960, s 12(1)) received little case law publicity. In Re AB (Application for Reporting Restrictions: Inquest) [2019] EWHC 1668 (QB) Pepperall J dealt with a local authority’s application for a reporting restrictions order (supposedly under Children and Young Person’s Act 1933 s 39) for an inquest to protect evidence as to a 17 year old and her suicide from members of her family. Proper notice had not been given to the press (at [11]-[18]). The application was refused. As framed, in the High Court, it could only be in the inherent jurisdiction (see [24]); and Pepperall J was not prepared to exercise any inherent jurisdiction he might have. If any application could be made it must be in the coroner’s court.

A persistent theme of case law in the area of restrictions on open justice is that if application is to be made for any restriction, it must be made on proper notice (despite what is said on the subject in President’s guidance as to reporting in the family courts, 3 October 2019 (below)) to the court and, as need be, to the Press Association (see per INDO (above)). The role of an accredited media representative (FPR 2010 r 27.11(2)(f)) and their party status is not dealt with in the guidance; nor was it considered by In re R (A Child) (Reporting restrictions) [2019] EWCA Civ 482.

R (A Child) was a journalist’s successful attempt to have a reporting restrictions order lifted and where facts had already been aired on the mother’s successful earlier appeal to the Court of Appeal. The hearing was a rare example of the Court of Appeal permitting itself to be used for a publicity exercise. There was no real issue on this appeal. Everyone in court agreed that the judge had been wrong in the order he made and that a reporting restrictions order was inappropriate. The case is of no precedent value. Some might say it was an abuse of the court’s time.

Reporting restrictions: publication of family courts material

The wild-west of civil courts is represented by committal applications for publication and alleged contempt of court. The Court of Appeal records a number of examples of circuit judges shooting from the hip. Recent examples – neither are family cases – where individuals were recently and unlawfully sent to prison, include: Hughes Jarvis Ltd v Searle [2019] EWCA Civ 1; [2019] 1 WLR 2934 (claimant witness sent to prison immediately with claim struck out where he sent emails to his solicitor and spoke to another person: Court of Appeal called for a “measured approach” by judges) and Douherty v Chief Constable of Essex Police [2019] EWCA Civ 55 (imprisonment for breach of an order, where no self-incrimination privilege warning was given, no legal aid and no chance for proper mitigation).

The family equivalent of these cases was Re Nasrullah Mursalin [2019] EWCA Civ 1559 where a committal order (suspended) was made by a circuit judge was set aside. A paralegal mistakenly sent family proceedings papers (contrary to AJA 1960 s 12(1)(a) and FPR 2010 r 12.73(1)) to an immigration tribunal. The appellant had no proper opportunity to obtain legal aid or to plead mitigation.

More serious points, not explored by the Court of Appeal, were:

  • Did a circuit judge even have power to make a committal order (no)?
  • Was this ‘publication’ at all in terms of AJA 1960 s 12(1)(a) (probably, yes); but
  • What is the guilty intent (mens rea) required for a case under s 12(1) (see eg Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA: still important law and a very strong unanimous Court of Appeal).

A model for dealing with committal occurs in HM Attorney General v Yaxley-Lennon [2019] EWHC 1791 (Admin), per Sharpe LJ and Warby J (QB Divisional Court), including:

  • Breach of a Crown Court Contempt of Court Act 1981 s 4(2) reporting restrictions order (postponement of reporting of proceedings held in public where reporting might prejudice administration of justice) ([45]-[66]);
  • Breach of the rule as to strict liability on a respondent where immoderate words are used ([67]-[77]); and
  • Interference at common law with administration of justice ([78]-[88]).

Contempt was found under all heads and the respondent was later given a sentence of nine months.

‘Guidance’ on release of material

The President’s Guidance as to reporting in the family courts, 3 October 2019 is not law, still less is it common law: it is merely guidance. It is an odd document if only because the President seems to be advising that process be issued without court fee or formal notice to anyone (eg the court or other parties); and that if any application be made it should be in some form of wardship proceedings, says the President (Form C66 at para 8). I am sure HM Courts and Tribunal Service will be wary, and the Treasury will not allow a court fee to be waived (if it finds out).

The President’s office confirms the guidance applies to all family proceedings; yet of costs (para 16) the guidance says “the standard approach as to costs in children cases will apply” (ie almost invariably no costs order). Why “children cases” where many family cases may have nothing to do with children? Costs orders are an area where a variety of law applies to the miscellany of family proceedings (in addition being a question for the discretion of the judge: Senior Courts Act 1981, s 51(3)). If it is a commercial media organisation which has made the application and put all parties to expense, why should they not pay if their application is not successful (CPR 1998 r 44.2(2): costs of successful party generally to be paid by the unsuccessful party)?

 

David Burrows

29 December 2019

Featured image: Photo by Benjamin Manley on Unsplash