Barclay v Barclay: A Stark Reminder for Badly Behaved High-Profile Litigants

Sir Frederick Barclay is one-half of the infamous Barclay Twins (his brother, Sir David, sadly died earlier in 2021). The Sunday Times Rich List estimated their wealth at £6 billion in 2021.

Background

Unfortunately, Sir Frederick Barclay's 34-year marriage to Lady Hiroko Barclay broke down. In the financial remedy proceedings that ensued, there were significant criticisms made by the court towards Sir Barclay. He did not comply with court orders made for the production of documents and answers to questions, he did not place the single joint expert in funds (delaying commencement of work) and did not comply with orders governing how sale proceeds of his luxury yacht should be utilised. Mr Justice Cohen described Sir Barclay's behaviour as 'reprehensible'.

The main focus of this article is whether the court's judgment should be published, given the court's severe criticism of Lord Barclay's conduct. This raised two important, but competing considerations: the right to privacy and the right to freedom of expression. 

Privacy v Freedom of Expression

Open justice is a fundamental principle of the English judicial system.  As a general rule, hearings that take place in the English judicial system are carried out in public. There are exceptions to this rule. One key exception is proceedings within the Family Court as outlined in the Family Procedure Rules at Rule 27.10 which says that hearings should be conducted in private except (a) where these rules or any other enactment provide otherwise; or (b) subject to any enactment, where the court directs otherwise.

This Rule does not by itself prohibit publication of what happens in those proceedings. 

However, financial remedy proceedings are a rare beast. There is an obligation on the litigant's involved to provide full and frank disclosure of their financial position.  Information disclosed in financial remedy proceedings is protected by the implied undertaking of confidentiality before, during and after the proceedings are completed. 

In deciding whether to restrict or permit publication of information relating to financial remedy proceedings, the court has to balance the conflicting rights and interests under the European Convention on Human Rights, in particular article 6 (right to a fair trial), article 8 (right to private family life) and article 10 (right to freedom of expression). 

In some cases, the judge may authorise publication of the judgment without anonymisation or redaction – for example, where a party has provided false information to the court (for example, Lykiardopulo v  Lykiardopulo [2010] EWCA Civ 1315 , or where the parties are in the public eye and the details of the matrimonial dispute are already in the public domain (for example, McCartney v Mills McCartney [2008] EWHC 401 (Fam)). In other cases where the parties are in the public eye, but the details of the dispute are not in the public domain, the court may authorise publication of the fact that they are engaged in litigation but restrain publication of detailed information relating to the proceedings (for example, Appleton v Gallagher [2015] EWHC 2689 (Fam)). 

Findings of Mr Justice Cohen

The fundamental argument between the parties has been the extent to which Sir Barclay's conduct in the litigation has deprived him of the right to confidentiality in publication of the judgment. Was the conduct as grave as in Lykiardopulo?

Mr Justice Cohen concluded that despite serious criticisms of Sir Barclay, his behaviour was largely acts of omission rather than commission  He decided that the substantive judgment would not be published and the interim reporting restrictions order will remain in place.

However despite this judgment, the overwhelming message is that high profile litigants should be careful and abide by court orders! Whilst Sir Barclay was successful in avoiding the substantive judgment being published by the court, the next high profile litigant who conducts himself “poorly” may not be so lucky and the public may get more of an insight into their personal affairs than they would have ever thought!