Case No. ZZ20D49528

The Registrars of the Principal Registry of the Court of Probate shall be invested with and shall and may exercise with reference to Proceedings in the Court for Divorce and Matrimonial Causes the same Power and Authority which Surrogates of the Official Principal of the Court of Arches could or might before the passing of the Twentieth and Twenty-first Victoria, Chapter Seventy-seven, have exercised in Chambers with reference to Proceedings in that Court.Thus, all proceedings before Registrars were held in chambers. 84.The original 1858 Divorce Rules ran to 57 rules. They were superseded by the 1865 Rules, a new set of rules which ran to 1741. These rules (modestly augmented to 180) are printed in the 3rd edition of Pritchard’s Practice of the Divorce Court (Shaw and Sons 1874). That set of rules was further intermittently augmented so that by 1903 it ran to 220. These are the rules printed in the first edition of Rayden (Butterworth & Co 1910). The 1865 Rules provided that many financial remedy applications were by separate petition and heard by the judge on motion in court (sometimes following a report from the Registrar) and that consent orders apart, the Registrar would usually not make a substantive order. The work of the Registrars was overwhelmingly procedural, dealing with applications to amend pleadings, extend time, and the like. The great bulk of the financial remedy work was done by the judge, some in court and some in chambers as if sitting in open court. The judge’s work in chambers largely seems to have been the dispatch of procedural summonses. 85.Take, for example, an application in 1870 by a wife, who had obtained a decree nisi, for permanent unsecured maintenance2 under section 32 of the Matrimonial Causes Act 1857 as modified by section 1 of the Matrimonial Causes Act 1866. The application was made by a separate petition addressed to the Judge Ordinary. An application to extend time to file the petition had to be made to the judge (Rule 95). When the pleadings were closed the Registrar would “investigate the averments contained therein” and prepare and file a report (Rule 101). Either party could apply to the Judge Ordinary on motion to confirm or reject the report (Rule 102). The motion would be heard in open court or in chambers as if in open court (sec 46 of the 1857 Act, sec 3 of the 1858 Act). If the wife’s original application was for alimony pendente lite or for permanent alimony then it would be determined directly by the Judge Ordinary on motion in court, or in chambers as in court, without the preliminary investigation by the Registrar.86.The Matrimonial Causes Rules 1924 provided that applications for alimony pendente lite, permanent alimony or maintenance would all be investigated by the Registrar who would have the power either to make an order on the application, or to refer it, or any question arising on it, to the Judge (Rules 61, 62 and 69). In contrast, an application for variation of settlement, the only capital award available, remained the subject of the Registrar’s report procedure (Rule 71). I have not researched when the power to make an order disposing of that type of application was also vested in the Registrar. By the time of the Matrimonial Causes Rules 1973 the only remaining application which was the subject of the report procedure was an avoidance of disposition application and any related ancillary relief application being heard at the same time (see Rules 77, 78 and 79). The Matrimonial Causes Rules 1977 removed that final exception. From that point the default position was that all applications were to be heard by the Registrar, but, of course, any application could be referred to the Judge. The rules do not say that the Registrar must hear the application in chambers because from time immemorial they had only sat in chambers. RSC Order 32 r 11 provided that the jurisdiction of the Registrars of the Family Division (subject to certain exceptions such as matters relating to the liberty of the subject) was “to transact all such business and exercise all such authority and jurisdiction as … may be transacted and exercised by a judge in chambers”.87.Where the Registrar made an order on the application, an appeal lay by way of summons to the judge in chambers. The authorities from the 1920s and 1930s show that such appeals were routinely adjourned into court for argument and/or judgment. 88.There is nothing in any of these Rules supporting a view that proceedings heard in the Judge’s or Registrar’s chambers were secret. The change of language from “in chambers” to “in private” for the forum of ancillary relief proceedings does not happen until 2010, where it appears in FPR 27.10. That change certainly did not presage that ancillary relief proceedings should become more secret. No iteration of the Rules says anything about the consequence, in terms of reportability, of a hearing being in chambers or in private. Scott v Scott89.In Scott v Scott [1913] AC 417, HL an order was made by the Registrar that the husband’s nullity petition should be heard “in camera”. This was treated as being synonymous with “in chambers”. I draw attention to the remarkable dissenting judgment of Fletcher Moulton LJ in the Court of Appeal: [1912] P 241. The House of Lords allowed the appeal and essentially endorsed his reasoning. The judgment is a tour de force, and such is its exceptional logical and literary quality that I am unapologetic for quoting from it at some length. The core issue was what the words directing that the suit be heard in camera actually meant. Fletcher Moulton LJ held:“I shall proceed to shew that an order that a cause shall be heard in camera never could have and never has had the meaning contended for by the respondent. Before doing so I wish to say a word about the two interpretations themselves. It has become evident to me in the course of the argument that there is much confusion of thought as to their respective effects and that the radical difference between them has often been forgotten.