Publicity in Financial Remedy Proceedings

The keynote address was given by Mr Justice Keehan.  Sir Michael chose as the subject of his address whether or not there should be publicity in financial remedy proceedings.  An issue which has divided the Family High Court Bench.

His presentation was popular with the audience, the judge being not only entertaining but very thought-provoking too. Mr Justice Keehan outlined the advantages and disadvantages of publicity in financial remedy proceedings before going on to discuss the law, the procedural rules and recent cases on the subject.

He told the story of two very prominent QCs who heard from the listing office that their clients’ financial remedy application was to be heard by a particular High Court Judge. Each, for different reason,s explained to their clients the necessity of settlement pre-trial rather than risk their case appearing in the newspapers.  The case unsurprisingly settled.

Balanced against this is the need for the public to be satisfied that justice is not only done, but is seen to be done. Publicity can provide valuable education for lawyers and the public, so that they can make informed decisions to fit their own circumstances. But surely no individual wants details of their marriage to be splashed all over the Daily Mail.

Mr Justice Keehan drew a distinction between cases heard in the Court of Appeal and at first instance.  The position with regards to the Court of Appeal is well established.  The situation with regards to appeals was considered in the case of Norman v Norman.  Whereas first instance decisions may well have been heard in private, it was settled law that proceedings in the Court of Appeal are governed by the Civil Procedure Rules which require proceedings to be heard in public and therefore reportable unless restrictions apply.

The High Court Family Bench is divided, with judges offering opposing views – respectfully, of course. In one corner is Holman J, and in the other is Mostyn J.  In the case of DL v SL, Mostyn J considered the principle of open justice and the hearing of financial remedy cases in public.  He concluded that unless there are exceptions, these cases should be heard in private.

However, Holman J, in the case of Luckwell v Limata, took a different view, his approach is as follows:  “In my view, Rule 27.10 does not contain any presumption that financial remedy proceedings should be heard in private – it is no more than a starting point – and a question of whether a given case should or should not be is entirely in the discretion of the court.”

Other cases were cited by Mr Justice Keehan, which space here does not allow for. Suffice to say we all await the Court of Appeal’s consideration of these issues with interest.

Mr Justice Keehan was of the view that the overwhelming balance of opinion in the Family Court is that these proceedings should be heard in private.  Only in particular circumstances should anonymised judgments be allowed, for example, where there was disgraceful conduct by one party. Mr Justice Keehan recognised the considerable advantages of arbitration and private FDRs in resolving financial matters where there were no such issues regarding publicity.  There was a clear advantage to such out of court resolution.

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