Reporting Restriction Order (reprised) - "Where there is no publicity there is no justice."

In my article last month (Interim Reporting Restriction Order - More Moderate Mostyn? Or Purely Protective Prudence?, Charlotte Posnansky (charlesrussellspeechlys.com)) I considered Mostyn J's decision to make an interim Reporting Restriction Order ("RRO") pending hearing the case in full. He took the view that the interim RRO was required because it was not until the end of the hearing that he would be appropriately placed to undertake the necessary balancing exercise between the right to privacy and the principle of open justice.  I did not stick my neck out too far when I said in conclusion that I doubted the interim RRO would in fact be extended when the point was considered at the end of the case, and it is always pleasing to be proven right!

The substantive judgment in Gallagher v Gallagher (No.2) (Financial Remedies) [2022] EWFC 53 was published on 13 June 2022 and, quite evidently, was not anonymised (although see further below what limited restrictions were imposed). In an accompanying judgment - Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52 - Mostyn J makes swift and light work of all the numerous and varied arguments put forward by leading counsel (principally the husband's counsel, but the wife's leading counsel supported the proposal) in favour of anonymisation. In characteristic fashion he refers both to many of his own previous decisions and an unusually broad range of sources to support his firm views on open justice; everything from Daines Barrington in 1766 to Jeremy Bentham in 1843 and beyond.  Bentham provided the quote used in the title of this piece.  

In what he declares to be "his last judgment of substance" on the subject (time alone will tell if he resists subsequent temptation when another opportunity comes along!), Mostyn J finds:

(a) and cites many and varied historical texts, common law decisions and of course Article 6 of the ECHR promoting the principle of open justice;

(b) that derogation from the rule of open justice can only be via an RRO or an anonymity order and any such derogation should be "exceptional" and made with "strict justification" after undertaking a full balancing exercise as it is a grave encroachment on the principle of freedom of expression;

(c) that FPR 27.10 which provides that almost all family proceedings are to be held "in private" means only that there should be privacy at the hearing, in that the public cannot walk in and attend the hearing; not that the proceedings and facts cannot subsequently be reported;

(d) little justification in counsel's argument that an anonymised judgment would achieve sufficient transparency and perhaps even greater transparency than a published judgment with a confidential annex containing commercially sensitive information;

(e) that the threat of using public proceedings to blackmail a party into settling is no argument against publicity and that if such a practice were common the civil courts would be empty;

(f) that the embarrassment and distress caused to litigating parties by publicity is an appropriate price to pay;

(g) that the possibility of indirectly being able to identify minor children is not sufficient reason to make an RRO;

(h) that there should be a very good reason for copies of the parties' skeleton arguments not to be made available to the press and the provision of other case documents would need to be subject to a fact-specific balancing exercise;

(i) that careful thought should be given before any evidence is heard as to what, if any, form of interim RRO might be appropriate;

(j) that the standardised anonymisation of judgments is unlawful and would require primary legislation.  Instead, an RRO or anonymisation order can only be made where it has been applied for and awarded after undertaking a full balancing exercise.

In the case itself, Mostyn J made a very limited RRO prohibiting:

(i) the naming of minor children, photographs of them, identification of their schools or where they live, to run until the youngest child reaches the age of 18;

(ii) the reporting of the advice given to the husband of tax counsel and the consequent calculation of his potential tax liabilities to be taken into account, to run until 1 January 2026; and

(iii) the reporting of the advice given to the husband of the risks he faces in ongoing international litigation and the court's consequent calculation of the potential damages to be taken into account, to run until 1 January 2026.

So that, says Mostyn J, is his last word on the topic.  However, he does "leave it to others to determine [if he is] right or wrong" so there may yet be more to be said by others....