High Court ruling that financial details of Liam Gallagher’s divorce to Nicole Appleton could not be reported in the press has reignited debate over openness and transparency in the Family Courts.

The debate about openness and transparency within the Family Courts has been reignited following a High Court’s ruling that the financial details of Liam Gallagher’s divorce to fellow singer Nicole Appleton could not be reported in the press.

Prior to the implementation of new Family Procedure Rules 2010 (“FPR”) in April 2009, financial remedy proceedings between divorcing spouses were entirely confidential, subject only to matters of specific public interest where permission might have been granted to the media to report the proceedings. That has all changed.

The rules now provide that the proceedings will be held in private except where (a) the rules or any other enactment provide otherwise; or (b) the court directs otherwise (FPR 27.10). Although ‘in private’ prevents ordinary members of the public from attending, accredited members of the press are permitted to attend pursuant to FPR 27.11. There remain statutory prohibitions on the press attending certain hearings, such as Financial Dispute Resolution Hearings (at which parties try to negotiate a settlement with the assistance of a judge), but otherwise the question of whether the media can be admitted and, if so, the extent to which they can report what they hear is entirely at the discretion of the judge.

There has been a significant divergence of judicial approach to the application of these rules since they came into effect. In one camp, occupied most notably by Mr Justice Holman, a senior High Court judge in the Family Division, there is the view that financial remedy proceedings should be held in open court with a starting point that there should be no reporting restrictions placed on the media. In the other camp sits Mr Justice Mostyn, who has openly disagreed with Holman J and has placed reporting restrictions on the press at final hearings.

Both judges have taken opportunities of late to articulate their differing interpretations of the rules. In February 2014, in the widely reported case of Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR, Holman J justified his decision to grant full public and media access (with no reporting restrictions save for an order not to name the three children of the marriage) to what he himself described as “an exceptionally bitter hearing”, by saying:

“In my view FPR 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 the question whether a given case should or should not be is entirely in the discretion of the court”.

Further, in his judgment following the more recent hearing of Fields v Fields [2015] EWHC 1670, another case which attracted considerable coverage in the national press, he said:

“…the people must be allowed, so far as possible, to see their courts at work. There is considerable current, legitimate public interest in the way the family courts daily operate, and that cannot be shut out simply on an argument that the affairs of the parties are private or personal…”

Mostyn J, on the other hand, recently made a compelling argument for privacy in financial remedy proceedings in his judgment in DL v SL [2015] EWHC 2621 a case in which he ordered that the anonymity and privacy of the parties in respect of their personal and financial affairs be preserved. Whilst acknowledging that under FPR 27.11 the media can attend a hearing, in his view this was primarily for the purposes of enabling the press to be “the eyes and ears of the public”, to ensure that the case is “conducted fairly” and to enable the public “to be educated in an abstract way”. It did not, however, extend to breaching the privacy of the parties. Financial remedy proceedings were “quintessentially private business” and, in his view, the starting point is that they should be heard in private unless there are compelling reasons to the contrary.

Concluding his judgment, Mostyn J took the opportunity to ask the Court of Appeal to consider the present “unhelpful divergence of opinion” amongst the judiciary and to devise appropriate guidance.

Following hard on the heels of that judgment comes the case Appleton & Gallagher V News Group Newspapers and PA [2015] EWHC 2689 (Fam), in which the former Oasis singer Liam Gallagher and the television presenter and singer-songwriter Nicole Appleton made a joint application to exclude the press from hearings concerning the financial aspects of their divorce. Mostyn J relaxed two existing interim injunctions, thereby allowing the press to attend the hearings and to name the parties (and indeed photograph them arriving and leaving court) but prohibiting them from reporting details of the parties’ financial affairs. He said details of the parties’ children’s lives should also remain private.

Expressing approval of the decision of the Court of Appeal in Clibbery v Allan (No 2) [2002] EWCA Civ 45 which provided the rationale for the “long-accepted prohibition on publication of private ancillary relief proceedings (now referred to as financial remedy proceedings)”, he noted that financial remedy proceedings are subject to a “far wider” scope of disclosure than in a civil dispute: “you basically have to disclose everything about your economic life”. But “information compulsorily extracted by one party from the other is subject to an implied undertaking that it will not be used for any purpose other than the proceedings”. A party telling the press what the other party had said in the witness box would be in contempt of court, as would a third party who subsequently published what had been said.

Mostyn J said that following the introduction of FPR 27.11, which now permits the admission of the press, but not the public, Parliament had specifically maintained these proceedings as private:

“It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog”.

Mostyn J did, however, grant permission to NGN to appeal to the Court of Appeal and, in doing so, expressed the hope that the Court of Appeal would use the opportunity to provide clarification of the rules which he described as a mess. Watch this space!

Our view

Toby Atkinson, Partner in the Divorce and Family Department at Stewarts, said:

“Most divorcing couples can do without the added anxiety of not knowing whether their case will be held in private or not. As a consequence, we are increasingly acting for parties who are electing to ‘go private’ and arbitrate, so as to ensure that details of their private family disputes are not laid bare in open court and reported by the media.”

Sam Longworth, Partner in the Divorce and Family Department at Stewarts, said:

“Arbitration provides couples with the confidence of a legally binding decision but on their own agreed timetable and with the guarantee of complete confidentiality. Fairness cannot be achieved where a concern about publicity is used as a bargaining chip. Whilst arbitration is key where agreement cannot be reached and either of the parties to the divorce are high profile or very wealthy, we are considering it with all our clients given the risks involved in cases proceeding through the courts and attracting unwanted media attention”.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.

You can find further information regarding our expertise, experience and team on our  Divorce and Family pages.

If you require assistance from our team, please contact us or alternatively request a call back from one of our lawyers by submitting this form.

Subscribe – In order to receive our news straight to your inbox, subscribe here. Our newsletters are sent no more than once a month.