Case No. ZZ20D49528

(Emphasis added)90.Section 3 of the 1858 Act was not mentioned in the judgment of Fletcher Moulton LJ in the Court of Appeal or in any of the speeches in the House of Lords. But the ratio could not be more clear. Certain sensitive proceedings aside (e.g. wardship, lunacy), a hearing in chambers does not create secrecy for the facts of the case; and the parties to such proceedings, in the absence of a specific order to the contrary, are free to discuss and publish information about those proceedings. The Administration of Justice Act 196091.I move forward 47 years. The Administration of Justice Act 1960 specifically addresses the status of hearings held in private. Section 12(3) provides that hearings “in private”, “in chambers” and “in camera” are treated equally. It states:" …. references to a court sitting in private include references to a court sitting in camera or in chambers."In complete conformity with Scott v Scott, section 12(1) lists those sensitive types of proceedings which are covered with the mantle of secrecy, breach of which is a contempt of court. It provides (in its current, amended, form):“The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases that is to say -(a) where the proceedings(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor3;(b) where the proceedings are brought under the Mental Capacity Act 2005, or under any provision of the Mental Health Act 1983 authorising an application or reference to be made to the First-tier Tribunal, the Mental Health Review Tribunal for Wales or the county court;(c) where the court sits in private for reasons of national security during that part of the proceedings about which the information in question is published;(d) where the information relates to a secret process, discovery or invention which is in issue in the proceedings;(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published”The list of statutes mentioned in subsection 1(a) and (b) does not include the Matrimonial Causes Act 1973. A financial remedy case which is not mainly about child maintenance is therefore not a secret proceeding under this provision. Essentially, by section 12 of the 1960 Act Parliament put Scott v Scott on a statutory footing4. 92.In his report Confidence and Confidentiality: Transparency in the Family Courts (29 October 2021) Sir Andrew McFarlane P at [38] stated:“Section 12 is a somewhat opaque provision, and the fear of breaching it and the costs involved in litigation have acted as a major disincentive to journalists and others reporting on Family cases. The 1960 Act was concerned to protect and support the administration of justice. Now, some sixty years after its enactment, I have concluded that s 12 has the contrary effect of undermining confidence in the administration of family justice to a marked degree. Whether s 12 should be repealed and replaced by a provision that is more fit for purpose is a matter for Parliament and not the judiciary. I do however support calls for urgent consideration to be given by government and Parliament to a review of this provision”In the absence of an order (or, as will be seen, a rubric) relaxing its terms Section 12 certainly does prevent almost all reporting of a children’s case. But section 12 was nothing new. As I have explained, it did no more than to put the decision in Scott v Scott on a statutory footing. 93.It is difficult to see how the standard rubric, as applied in a money case, fits into section 12(1). What is it? It is obviously not an order under section 12(1)(e). That is the vehicle for the issue of a reporting restriction or anonymity order in the individual case; it has nothing to do with the systematic issue of a standard rubric.94.In Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam), [2012] 1 FLR 466, at [13], Munby J stated:“The rubric is not an injunction: see Re HM (Vulnerable Adult: Abduction) (No 2) [2010] EWHC 1579 (Fam), [2011] 1 FLR 97. It is not drafted in the way in which injunctions are usually drafted. There is no penal notice. And the procedures required by section 12(3) of the Human Rights Act 1998 and Practice Direction 12I: Applications for Reporting Restriction Orders will not have been complied with.”95.Munby J went on to explain that the function and purpose of the rubric was to allow anonymous reporting of cases about children which would otherwise be banned under the terms of section 12(1). He stated: “15.​ … the publication of a judgment in a case in the Family Division involving children, is subject to the restrictions in section 12(1)(a) of the Administration of Justice Act 1960. To publish or report such a judgment without judicial approval is therefore a contempt of court irrespective of whether or not it is in a form which also breaches section 97(2) of the Children Act 1989.16. ​ The rubric is in two parts and serves two distinct functions. The first part (“The judge hereby gives leave for it to be reported”) has the effect, as it were, of disapplying section 12 pro tanto, and thereby immunising the publisher or reporter from proceedings for contempt. But the second part (“The judgment is being distributed on the strict understanding that …”) makes that permission conditional. A person publishing or reporting the judgment cannot take advantage of the judicial permission contained in the first part of the rubric, and will not be immunised from the penal consequences of section 12, unless he has complied with the requirements of the second part of the rubric.”96.Therefore, far from being a reporting restriction injunction, the rubric acts as a reporting permission order, allowing anonymous reporting of cases about children (or which mainly concern child maintenance) which would otherwise be prohibited from being reported by section 12(1)(a).97.It can therefore be seen that the rubric has no relevance to, or impact on, a financial remedy case which is not mainly about child maintenance. A further reason why it cannot operate as a form of anonymisation and reporting restriction order for financial remedy cases is that it would turn upside-down the omission of those cases from the section 12(1) list of types of secret cases.The status of a hearing in chambers: the modern view98.In Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056 Lord Woolf MR issued a vitally important synopsis of the status of proceedings heard in chambers, which stands in completely conformity with the judgment of Fletcher Moulton LJ. He stated at 1071:“(1) The public has no right to attend hearings in chambers because of the nature of the work transacted in chambers and because of the physical restrictions on the room available, but if requested, permission should be granted to attend when and to the extent that this is practical. (2) What happens during the proceedings in chambers is not confidential or secret and information about what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested. (3) If members of the public who seek to attend cannot be accommodated, the judge should consider adjourning the proceedings in whole or in part into open court to the extent that this is practical or allowing one or more representatives of the press to attend the hearing in chambers. (4) To disclose what occurs in chambers does not constitute a breach of confidence or amount to contempt as long as any comment which is made does not substantially prejudice the administration of justice. (5) The position summarised above does not apply to the exceptional situations identified in s12(1) of the Act of 1960 or where the court, with the power to do so, orders otherwise."99.These two judgments, given in respectively 1912 and 1998, establish conclusively that in providing for financial remedy cases to be heard “in chambers” or “in private” the Rules do not provide for secrecy about the facts of a case, but merely that the case should not be heard in the public gaze.100.When Hodgson was decided in 1998 the concept of a hearing of a civil case in chambers was long-established. Hodgson definitively determined the status of such a hearing. However, in civil proceedings the concept of a hearing in chambers was superseded when the CPR took effect on 26 April 1999. CPR 39.2 provides that, subject to specified exceptions, all hearings should be, formally, in public. The 2022 White Book explains at 39.2.8 that many hearings other than trials continue to be held in rooms in which the public are not accommodated. For such hearings the principles in Hodgson continue to apply. Such hearings take place out of the public’s gaze but what happens is not secret and can be made available to the public if requested.Anonymity orders101.Therefore, it seems to me that anonymisation of a financial remedy case heard in private can only lawfully and effectively be achieved if a case-specific anonymity order is made which complies with CPR 39.2(4). This provides:“The court must order that the identity of any party or witness shall not be disclosed if, and only if, it considers non-disclosure necessary to secure the proper administration of justice and in order to protect the interests of that party or witness.”102.The CPR do not apply directly in family proceedings and there is no equivalent to CPR 39.2(4) in the FPR. Strictly speaking, therefore, anonymisation in family proceedings can only be ordered under the common law. CPR 39.2 recognises, incorporates and codifies the common law power. In XXX v Camden LBC [2020] EWCA Civ 1468 Dingemans LJ stated:“19. CPR 39.2(4) recognises that orders for anonymity of parties and witnesses may be made. The common law has long recognised a duty of fairness towards parties and persons called to give evidence, see In Re Officer L [2007] UKHL 36; [2007] 1 WLR 2135, and balanced that against the public interest in open justice in specific cases. Under the common law test subjective fears, even if not based on facts, can be taken into account and balanced against the principle of open justice. This is particularly so if the fears have adverse impacts on health, see In Re Officer L at paragraph 22 and Adebolado v Ministry of Justice [2017] EWHC 3568 (QB) at paragraph 30.20. With the advent of the Human Rights Act 1998 the Courts have also been able to give effect to the rights of parties and witnesses who may be at "real and immediate risk of death" or a real risk of inhuman or degrading treatment if their identity is disclosed, engaging articles 2 and 3 of the ECHR. A person's private life may also be affected by court proceedings, engaging article 8 of the ECHR. The common law rights of the public and press to know about court proceedings are also protected by article 10 of the ECHR, see Yalland v Secretary of State for Exiting the European Union [2017] EWHC 629 (Admin) at paragraph 20. The importance of the press interest in the names of parties was explained by Lord Rodger in Re Guardian News and Media Ltd [2010] UKSC 1; [2010] 2 AC 697 at 723. At paragraph 22 of In re S (a child) [2004] UKHL 47; [2005] 1 AC 593 the House of Lords affirmed that the inherent jurisdiction of the High Court to restrain publicity was the vehicle by which the Court could balance competing rights under articles 8 and 10 of the ECHR.21. Lord Steyn addressed the way in which competing human rights should be balanced in In re S (A child) at paragraph 17. He stated that when considering such a balancing exercise four principles could be identified."First, neither article has as such precedence over the other. Second, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test".It is also necessary to have particular regard to: the importance of freedom of expression protected by article 10 of the ECHR; the extent to which material has, or is about, to become public; the public interest in publishing the material; and any privacy code; pursuant to section 12 of the Human Rights Act 1998. Many of these principles were rehearsed by Haddon-Cave LJ in paragraphs 20 to 29 of Moss v Information Commissioner [2020] EWCA Civ 580, a case in which issues not dissimilar to those in this case arose.” 103.Therefore, an anonymity order in respect of a proceeding, including a proceeding heard in private, can only be made where in the individual case the “ultimate balancing test” has been undertaken. Obviously, a systematic endorsement of the rubric on the front of the judgment will not amount to a performance of that balancing exercise. 104.Guidelines for the exercise of this power were comprehensively stated in a codified form by Lord Neuberger MR in H v News Group Newspapers Ltd Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645 at [21]:"In a case such as this, where the protection sought by the claimant is an anonymity order or other restraint on publication of details of a case which are normally in the public domain, certain principles were identified by the Judge, and which, together with principles contained in valuable written observations to which I have referred, I would summarise as follows:(1) The general rule is that the names of the parties to an action are included in orders and judgments of the court.(2) There is no general exception for cases where private matters are in issue.(3) An order for anonymity or any other order restraining the publication of the normally reportable details of a case is a derogation from the principle of open justice and an interference with the Article 10 rights of the public at large.(4) Accordingly, where the court is asked to make any such order, it should only do so after closely scrutinising the application, and considering whether a degree of restraint on publication is necessary, and, if it is, whether there is any less restrictive or more acceptable alternative than that which is sought.(5) Where the court is asked to restrain the publication of the names of the parties and/or the subject matter of the claim, on the ground that such restraint is necessary under Article 8, the question is whether there is sufficient general, public interest in publishing a report of the proceedings which identifies a party and/or the normally reportable details to justify any resulting curtailment of his right and his family's right to respect for their private and family life.(6) On any such application, no special treatment should be accorded to public figures or celebrities: in principle, they are entitled to the same protection as others, no more and no less.(7) An order for anonymity or for reporting restrictions should not be made simply because the parties consent: parties cannot waive the rights of the public.(8) An anonymity order or any other order restraining publication made by a Judge at an interlocutory stage of an injunction application does not last for the duration of the proceedings but must be reviewed at the return date.(9) Whether or not an anonymity order or an order restraining publication of normally reportable details is made, then, at least where a judgment is or would normally be given, a publicly available judgment should normally be given, and a copy of the consequential court order should also be publicly available, although some editing of the judgment or order may be necessary.(10) Notice of any hearing should be given to the defendant unless there is a good reason not to do so, in which case the court should be told of the absence of notice and the reason for it, and should be satisfied that the reason is a good one."I would draw particular attention to paras 2 and 6. Of course, the systematic endorsement of the rubric does not comply with these principles.105.However, the overwhelming majority of financial remedy judgments are issued anonymously, endorsed with the rubric. I myself have done so on many occasions. In none of these cases would the ultimate balancing test have been carried out leading to a conclusion that anonymity was necessary to secure the proper administration of justice and to protect the interests of a party or witness.106.I believe there are two reasons for this. Clibbery v Allan107.The first derives from the reasoning of Dame Elizabeth Butler-Sloss P and Thorpe LJ in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261. Their reasoning is obiter because the case in question was mounted under Part IV of the Family Law Act 1996. It was not a financial remedy case under the Matrimonial Causes Act 1973.108.At that time rule 2.66(2) of the Family Proceedings Rules 1991 provided for an application for ancillary relief that:“The hearing or consideration shall, unless the court otherwise directs, take place in chambers.”109. At [72] the President stated:“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.