Case No. ZZ20D49528

or otherwise released by the judge.” (Emphasis added)It is not easy to reconcile these statements with the terms of section 12(1) of the Administration of Justice Act 1960 or Scott v Scott.110.In BT v CU [2021] EWFC 87, [2022] 1 WLR 1349 at [104] I pointed out that all civil proceedings require candid and truthful disclosure to be given under compulsion. Further, the implied undertaking applies fully in civil proceedings, albeit now codified within CPR 31.22. So, how is it that the implied undertaking operates in family proceedings to prevent any reporting of what happened in those proceedings, while the same does not have that effect in civil proceedings? The Court of Appeal’s answer was that the public are not allowed into family proceedings held in private.111.In 2002 when Clibbery v Allan was decided nobody apart from the parties and their representatives was allowed into a financial remedy hearing held in chambers. Therefore, to allow a party to disclose to a journalist what had happened during the hearing and to allow the journalist to publish that information would, apparently, “make a nonsense of the implied undertaking”, and therefore should be prohibited. If, however, the journalist had heard the information because the judge had decided to sit in open court, then a report could be published. 112.In the past I have agreed with this reasoning. For example, quite recently in Villiers v Villiers [2021] EWFC 23 at [55] I stated that certain paragraphs of that judgment would be redacted from the published version because “they contain personal financial details of both of the parties, extracted from them under compulsion”. I have come to realise that the problem with this reasoning is that it ought to have applied equally to civil proceedings held before April 1999 in chambers. But we know from Hodgson v Imperial Tobacco Ltd that while such proceedings were private, they were not secret, and information about what occurred during the hearing and the judgment or order pronounced could, and in the case of any judgment or order should, be made available to the public when requested. If the freedom to report information about civil proceedings heard in chambers (i.e. in private) in 1998 did not “make a nonsense” of the implied undertaking, why did it do so for financial remedy proceedings heard in chambers (i.e. in private) in 2002? I have no answer to this question.113.So, it is now clear to me that the reasoning that led to the imposition of a mantle of secrecy in all ancillary relief cases stood on a very shaky foundation. The matter was put beyond doubt seven years later by a rule change.114.On 27 April 2009, seven years after Clibbery v Allan was decided, the Family Proceedings (Amendment) (No 2) Rules 2009 took effect. Those rules introduced into the Family Proceedings Rules 1991 a new rule 10.28. Rule 10.28(3)(f) permitted journalists to be present during the hearing unless the court exercised its power to exclude them under rule 10.28(4). Rule 10.28 has now been identically re-expressed in FPR 27.11 and elaborated in FPR PD 27B. The right to attend has been extended to legal bloggers under FPR 27.11(2)(ff). This curious hybrid arrangement, whereby the proceedings simultaneously are, and are not, held in public has continued to this day.115.In my judgment, the privacy of the proceedings, which is the key factor relied on in Clibbery v Allan, is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court for the purposes of para 106 of Thorpe LJ’s judgment. In my opinion, in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings, is fully entitled to publish that information. That entitlement is proved conclusively by the existence of FPR 27.11(3)(b) which allows the court to make an order excluding a journalist or blogger so that justice is not “impeded or prejudiced”. As an example of where justice necessitates the exclusion of a journalist or blogger, PD 27B para 5.4 cites a hearing where the court is considering confidential price sensitive information, exposure of which could affect the share price of a publicly quoted company. This rule and this example are only explicable if the journalist present in court was entitled to report that information. The rule would be entirely otiose, indeed nonsensical, if the journalist was anyway barred from reporting what he or she heard.116.Therefore, in my judgment, the rule change which allows journalists and bloggers into the proceedings has the effect of completely overturning the reasoning of the Court of Appeal which carved out an exception to the general rule concerning the reportability of proceedings heard in private. As Fletcher Moulton LJ and Lord Woolf MR unambiguously explain, the general rule is that, save in the clearly defined types of case specified in section 12(1) of the 1960 Act, the principle of open justice permits information about all proceedings, including proceedings heard in private, to be published, in full, on a non-anonymised basis. The judgment template of 2002117.The second reason is a classic example of the law of unintended consequences. In about 2002 the standard Family Division judgment template was introduced. A blank judgment would be generated on judicial computers at the click of a mouse. The template contained the standard rubric. There was only one standard rubric irrespective of whether the case directly concerned the welfare of a minor, and therefore was subject to statutory secrecy under the terms of section 12(1) of the Administration of Justice Act 1960, or whether it did not. I have set out the current standard rubric above, but I repeat it here for convenience:“…in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.” The original rubric used in 2002 was very similar, but not identical, to the current rubric. An example of the rubric in its early form is found in M v L [2003] EWHC 328 (Fam) decided by Coleridge J on 28 February 2003. It states:“The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children and the adult members of their family must be strictly preserved.”118.So, in every financial remedy case the standard rubric would be systematically generated and would appear on the front of the judgment unless specifically removed by the judge. It is hardly surprising, given the terms of the rubric, that judges may have thought that it had somehow been decided that every family case should be the subject of anonymity and therefore anonymised their judgments accordingly.Conclusion about the effectiveness of the rubric 119.In my opinion, for the reasons set out above, in a financial remedy case heard in private, which does not fall within section 12(1)(a) of the 1960 Act, the standard rubric is completely ineffective to prevent full reporting of the proceedings or of the judgment. In my opinion for such cases the standard rubric should be changed to provide:“This judgment was delivered in private. The judge hereby gives permission – if permission is needed – for it to be published.” A rubric in very similar terms was applied to the judgment in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416 by Munby J.120.For the reasons I have stated above, the justification identified in Cliberry v Allan for having a blanket ban on the full reporting of proceedings heard in private disappeared with the 2009 rule change.121.Therefore it follows that anonymisation can only be imposed by the court making a specific anonymity order in the individual case. Such an order can only lawfully be made following the carrying out of the ultimate balancing test referred to by Lord Steyn in Re S. It cannot be made casually or off-the-cuff, and it certainly cannot be made systematically by a rubric. On the contrary, the default condition or starting point should be open justice, and open justice means that litigants should be named in any judgment, even if it is painful and humiliating for them, as Lord Atkinson recognised in Scott v Scott.122.It must be recalled that an anonymisation order involves a significant curtailment of the Article 10 right to freedom of expression, as Lord Rodger explained in re Guardian News and Media Ltd [2010] 2 AC 697 at [63]:"What's in a name? "A lot", the press would answer. This is because stories about particular individuals are simply much more attractive to readers than stories about unidentified people. It is just human nature. And this is why, of course, even when reporting major disasters, journalists usually look for a story about how particular individuals are affected. Writing stories which capture the attention of readers is a matter of reporting technique, and the European court holds that article 10 protects not only the substance of ideas and information but also the form in which they are conveyed: News Verlags GmbH & Co KG –v- Austria 31 EHRR 246, 256, para 39, quoted at para 35 above. More succinctly, Lord Hoffmann observed in Campbell –v- MGN Ltd at para 59 "judges are not newspaper editors" … this is not just a matter of deference to editorial independence. The judges are recognising that editors know best how to present material in a way that will interest the readers of their particular publication and so help them to absorb the information. A requirement to report in some austere, abstract form, devoid of much of its human interest could well mean that the report would not be read and the information would not be passed on."Or as Lord Steyn put it in Re S at [34]:"…from a newspaper's point of view a report of a sensational trial without revealing the identity of the defendant would be very much a disembodied trial. If newspapers choose not to contest such an injunction they are less likely to give prominence to reports of the trial. Certainly, readers will be less interested and editors will act accordingly. Informed debate about criminal justice will suffer."123.With a certain degree of trepidation, I refer to the Practice Guidance issued on 16 January 2014 by Sir James Munby P: Transparency in The Family Courts: Publication of Judgments. Although that Guidance is plainly intended to apply to judgments about children (see para 9), it literally applies to all judgments of the Family Court and Family Division including financial remedy judgments (see para 14(1)). It states that the judge’s permission is needed to publish any judgment (paras 18 – 19). This would include a financial remedy judgement not covered by section 12(1) of the 1960 Act. It states that where permission is given anonymity should be applied so that not only the children but the adult members of the family are not identified (para 20).124.For the reasons I have given above, I do not agree, to the extent that that Guidance extends to a financial remedy judgment not covered by section 12(1) of the 1960 Act, that it accurately reflects the law. In my respectful opinion, it should have said that such judgments may be fully reported without the need for any prior permission unless the judge has made a specific reporting restriction and/or anonymity order after having carried out the Re S balancing exercise. 125.Finally, I refer to the report Confidence and Confidentiality: Transparency in the Family Courts (29 October 2021). This states at para 16:“AJA 1960, s 12 and CA 1989, s 97 apply to children cases, but not to financial remedy proceedings following divorce where there are no children involved. However, the court restricts publication of confidential financial information disclosed in financial remedy proceedings pursuant to the powers and principles established in Clibbery v Allen (No 2) [2002] EWCA Civ 45, Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 and HRH Louis Xavier Marie Guillaume v HRH Tessy Princess of Luxembourg & Anor [2017] EWHC 3095 (Fam). Accordingly, the Financial Remedy Courts now ordinarily control the release of information for publication, where this is sought, by an express order.”I agree that this passage reflects current practice. But for the reasons I have set out above, current practice does not correctly reflect the terms of the law. I repeat: the law, when properly understood, permits information about financial remedy proceedings and judgments (in cases which are not mainly about child maintenance) to be published unless the court has made a specific order preventing publication. The premise of the quoted passage is that financial information disclosed, and referred to, in the proceedings is confidential or secret and therefore cannot be reported without the court’s express permission. The correct position is the other way round: financial information referred to in the proceedings is not secret and can be fully reported unless the court makes a specific order preventing publication. The difference is that under the (erroneous) former position the journalist has to ask for permission to report something heard in court whereas under the (correct) latter position a party has to ask for an order preventing the journalist from reporting it. 126.Para 54 of the report refers to a consultation launched by HHJ Hess and myself on 28 October 2021 to enhance transparency in financial remedy proceedings. That consultation contained a proposal for a “standard reporting permission order”. I am embarrassed to admit that the proposal contains the same fallacy. Its premise is that financial information obtained under compulsion is confidential and cannot be referenced by a journalist without a permissive order of the court. As I have explained above, I do not believe this to be correct. 127.The consultation document also states at para 13:“…the journalist/legal blogger is not allowed to see any documents without the leave of the court. All financial remedy cases are heavily document-based. All the key evidence is in writing and the main submissions on the law and the facts are in written skeleton arguments. Without sight of these documents a journalist/legal blogger cannot begin to understand what the case is about, and the right to attend and report the hearing is largely rendered meaningless.”This is undoubtedly true. I cannot see, however, that it would be a contempt of court for a party to give a copy of the skeleton argument of her counsel to a journalist/blogger, or even to hand over the skeleton argument of her opponent. The provision of such documents would not transgress section 12(1) of the 1960 Act unless the case was about child maintenance. If neither party gives the journalist/blogger the skeletons then the journalist/blogger would have to apply to the court for an order providing them. That application would be determined by applying the principles in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 and granted unless good reasons are shown in opposition.5128.The fallacy lying at the heart of current practice, which seems to be ingrained, is that the wrong question is invariably asked when it comes to anonymising a judgment. In www.financialremediesjournal.com on 4 April 2022, when discussing my decision of Collardeau-Fuchs v Fuchs [2022] EWFC 6, a blogger wrote:: “I question whether it was necessary for Mr Justice Mostyn to publish the names of Alvina and Michael, could their names not been anonymised whilst at the same time the judgment still provide transparency?” With respect, that is the wrong question. The correct question is not:“Why is it in the public interest that the parties should be named?”but rather:“Why is it in the public interest that the parties should be anonymous?”If the correct question is asked then the burden of proof rightly falls on the party seeking to prevent names being published rather than on the party or journalist/blogger seeking to publish them.Judicial Proceedings (Regulation of Reports) Act 1926129.I have previously expressed the view that the Judicial Proceedings (Regulation of Reports) Act 1926 applies to financial remedy proceedings (see, for example, Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) at [19] – [22]). I am quite sure I was wrong about that.130.Section 1(1)(b) applies “in relation to any judicial proceedings for dissolution of marriage, for nullity of marriage, or for judicial separation”. It is obvious that this means a defended divorce. It plainly does not apply to a financial remedy application. While such an application may technically be “ancillary” to the suit for divorce, and bear the same number as the suit, it is otherwise completely delinked and separate from the suit, with a separate file and dealt with in a separate court, namely the Financial Remedies Court. Even back in the early days a financial remedy claim would be mounted by a separate petition and heard and dealt with separately from the main suit.131.If there were any doubt about this, it is laid to rest by the list of matters permitted to be reported. This includes at section 1(1)(b)(ii):“a concise statement of the charges, defences and counter-charges in support of which evidence has been given”132.This shows that the framers of the Act in 1926 were thinking about defended divorces and only defended divorces. In 1926 the core objective was proof of a matrimonial offence. Charges, defences and counter-charges were the meat and drink of the exercise. The Act itself was passed in response to King George V’s disgust at the salacious press reporting of two notorious matrimonial cases (Russell v Russell and Dennistoun v Dennistoun – see Law, Law Reform and the Family – Cretney (OUP 1998)). It had then, and has now, nothing whatsoever to do with financial remedy cases.133.On 6 April 2022 the Divorce, Dissolution and Separations Act 2020 took effect. For cases begun on or after that date defended divorces are no more. Gone is the requirement to prove by evidence that a marriage has broken down. The only disputes will be about the court’s power to dissolve the marriage i.e. about jurisdiction. It is doubtful whether the 1926 Act would apply to a jurisdictional dispute. If it does not, then the 1926 Act is obsolescent and will become obsolete when all the pre-6 April 2022 petitions have been dealt with. 134.In my judgment, the 1926 Act has no relevance to the question of anonymisation of financial remedy judgments. If I am wrong and the 1926 Act does apply to ancillary relief proceedings it cannot, in any event, bear on the anonymity issue given the permitted exceptions in sections 1(b)(i) and 1(b)(iv) which are incompatible with anonymity, namely:(i) the names, addresses and occupations of the parties and witnesses;(iv) the summing-up of the judge and the finding of the jury (if any) and the judgment of the court and observations made by the judge in giving judgment.Decision on anonymity in this case135.In this case I made at the conclusion of the hearing a specific reporting restriction order that the children should not be named, and that their schools and home address should not be identified. The Re S balancing exercise led easily to the conclusion that the children’s Article 8 rights must prevail where there can be no good reason for the press to identify the children directly. 136.Mr Calhaem applied for an order that the parties should be granted anonymity. He claimed that if they were named the children could easily be indirectly identified. He also argued that naming the wife may affect the supermarket businesses in Siberia. That application was refused, for reasons to be given in this judgment. The grounds, which were advanced orally and extempore, fell well short of the type and quality of evidence needed to justify a departure from the starting point of open justice. The risk of indirect identification of children is always a consequence of any decision which is not anonymised. If that were a good reason for anonymisation then it would apply in almost every case, including most civil cases. There is no evidence at all to suggest that the supermarket business in Siberia would be remotely affected if people knew that the respondent wife in this case was involved in no-holds-barred litigation in London.137.This judgment will not be anonymised, save in relation to the children.138.That is the extent of the order I make. This is not a public law case and I do not issue a declaration as to the effectiveness of a standard anonymisation rubric in money judgments not covered by section 12(1) of the 1960 Act.139.If I am wrong in my conclusion that the rubric is completely ineffective, then on the specific facts of this case I disapply it and release this judgment into the public domain as, in my judgment, the public interest demands that the exorbitance of the litigation between these parties should be reported fully. Final observations 140.My fundamental conclusion is that, irrespective of the terms of the standard rubric, section 12(1) of the 1960 Act, following long established principles, permits a financial remedy judgment (which is not mainly about child maintenance) to be fully reported without anonymity unless the court has made a reporting restriction order following a Re S balancing exercise. In my opinion this freedom can only be restricted by primary legislation and not by rules of court. Section 12(4) of the 1960 Act states that:“Nothing in this section shall be construed as implying that any publication is punishable as contempt of court which would not be so punishable apart from this section (and in particular where the publication is not so punishable by reason of being authorised by rules of court).”The power of the Family Procedure Rule Committee to make rules under this subsection is strictly confined to making something presently punishable as contempt not so punishable. It cannot make rules the other way round to make punishable as contempt something that is not presently so punishable. Therefore, any change to make financial remedy judgments systematically anonymous has to be done by primary legislation.141.I accept and understand that the question of open justice in financial remedy cases is a matter of some controversy on which views are far from unanimous. I express the hope that the Financial Remedies Court Transparency Group (a sub-group of the Family Transparency Implementation Group) will consider carefully the legal issues raised in this judgment.142.That is my judgment.__________________________________1 In Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261 at [29] and [30] Butler-Sloss P cited rules 40, 124, 162, 176, 192 and 205. Those rules were from the 1865 set as they stood in 1903. 2 Maintenance is the term for periodical payments after divorce; permanent alimony is the term for periodical payments after judicial separation.3 Subsection 1(a) as originally enacted stated “where the proceedings relate to the wardship or adoption of an infant or wholly or mainly to the guardianship, custody, maintenance or upbringing of an infant, or rights of access to an infant”. The current form of wording was substituted by the Children Act 1989 Sch.13 para.14 with effect from 14 October 1991. The change of language makes no difference to the reportability issue. 4 Although it is not directly relevant to this judgment, it is worth pointing out that many details about a child case are not prohibited from publication by section 12(1): see Re B [2004] EWHC 411 (Fam), [2004] 2 FLR 142, para 82(v) per Munby J. This includes the names and addresses of the parties and the child. However, other provisions, such as section 97 of the Children Act 1989, may suppress those details.5 For a party to show a journalist or blogger a document disclosed by the other party (as opposed to that other party’s skeleton argument) prima facie would amount to a breach of the implied undertaking not to use such documents for a collateral or ulterior purpose and thus would be a contempt of court: Harman v Home Office [1983] 1 AC 280. However, per Lord Roskill at 327, if the journalist is engaged in fair and accurate day-by-day reporting, and uses the document to that end, then that would be regarded as being for the immediate purpose of the litigation in question and not as collateral or ulterior to it.