Interim Reporting Restriction Order - More Moderate Mostyn? Or Purely Protective Prudence?

Earlier this month I considered the significant steps towards increased transparency - and thus publicity - in English family proceedings (Depp v Heard - will transparency in the English family court increase public confidence or feed the insatiably prurient public appetite?, Charlotte Posnansky (charlesrussellspeechlys.com). On 20 May 2022 there was another decision in this fast developing area by Mostyn J who, since his decision in BT v CU [2021] EWFC 87 in November 2021, has been leading the march towards openness in the family courts (in sharp contrast to his earlier stance which favoured privacy). He has made it clear through a number of his recent judgments, all cited by him at the outset of his latest word on the issue, that the full publication of proceedings without restriction or anonymisation is now his default position in all matrimonial finance cases.

It is interesting, therefore, to note the marginally more cautious approach adopted by Mostyn in this recent case of XZ v YZ [2022] EWFC 49 (20 May 2022), even if only on an interim basis. No doubt on high alert given the identity of the trial judge, the husband made what was in effect a prudent and preemptive application for a Reporting Restriction Order (RRO) before the case was heard. Predictably he pleaded in support his Article 8 right to respect for his family and private life, but more specifically he contended that a significant proportion of the final hearing would focus on the valuation of his business and that as a consequence it was commercially sensitive both to his competitors and for his business partner. There was also concern that the husband's evidence might impact on separate proceedings relating to an overseas company in which he was involved. Finally, he argued that the documentary evidence in the case had been prepared prior to the decision in BT v CU and consequently with a reasonable expectation that anonymity would be preserved.

Mostyn J undertook a brief summary of his own recent judgments which had supported the publication of matrimonial finance cases but ultimately he was persuaded that there may be some merit in the husband's arguments for a RRO. He said that at the preliminary stage before the start of the trial he was not yet in a position to carry out the balancing exercise required between the various rights enshrined in the European Convention on Human Rights, namely (a) the right to privacy (Article 8), (b) the principle of open justice (Article 6) and (c) the general rights of the public at large (Article 10). In order to do so, he said he needed more clarity about two unknowns, namely: (i) the extent to which disclosures may in fact be made that cause prejudice to the husband and to related third parties in the proceedings relating to the overseas company, and (ii) whether and to what extent the press oppose the RRO. Clarification of the first point would come by hearing the evidence, and the second point could be addressed by any journalists championing the Article 6 and 10 rights.

Accordingly, he made a blanket interim RRO until the application could be considered substantively during final submissions at the end of the forthcoming trial. He recognised that this decision would prevent the press from "live reporting" the proceedings as they went along, but he held that at this early stage the balancing exercise tipped in favour of such an order given the potential prejudice of making an incorrect decision at the outset.

Mostyn J concluded his judgment by commending his approach to other cases to "avoid a wastage of time at the beginning of the case and [to] ensure that the balancing exercise is done on the best available evidence." That being said, I would not be so bold as to rely upon this more cautious interim approach to bet on the RRO being confirmed and extended at the conclusion of the case!