On Her Majesty’s Secret [Court] Service, or ‘Billionaire Putin crony loses right to secrecy in Britain’

“Secrecy in the court system is a growing concern. The press has a duty to uphold the principle of open justice and act as the eyes and ears of the public in the courts. The Times will resist any attempts to erode those principles.”

So concludes a front page story in yesterday’s Times headlined Billionaire Putin crony loses right to secrecy in Britain [£], after describing the part played by that newspaper in unmasking the mysterious Mr Arkady Rotenberg. Whatever readers may have thought this Russian oligarch was up to, to warrant such a headline, it probably wasn’t the rather humdrum matter of disputing his ex-wife’s financial claims after their divorce. But the case is interesting as an example of the kind of tension that can exist when different human rights come into conflict with one another.

Usually, the main rights in play are that of freedom of expression (for the press to report, and the public to read about, the case) under Article 10 of the European Convention on Human Rights, as against that of the litigating parties’ right to privacy and family life under Article 8.  But in this case there was another right in play, namely the right to life itself, under Article 2 of the Convention. If you think that sounds far-fetched, you’re not alone. The courts seem to have thought so too.

What the case is about

The Times report explains that although his former wife now lives in England, Mr Rotenberg was currently prevented from coming to this country by EU sanctions imposed on Russia following the “illegal annexation of the [Crimean] peninsular”. Because his EU assets had been frozen, Mr Rotenberg argued, he was prevented from paying money owed to his wife following their divorce. While the matter was being litigated in England, he was granted an interim reporting restrictions order imposing what the Times describe as a “blanket anonymity that has shrouded his activities in the British courts”.

The order was opposed by The Times, and was eventually discharged by the trial judge, but Mr Rotenberg appealed to the Court of Appeal in a bid to retain it. Although that court dismissed his appeal, it continued to protect his anonymity while he tried to pursue a further appeal to the Supreme Court. Thus although the judgment of the Court of Appeal in October 2017 was published on BAILII, it has been anonymised and redacted, appearing under the title R v R [2017] EWCA Civ 1588.

On 23 February 2018 the Supreme Court gave brief reasons for rejecting Mr Rotenberg’s appeal against the lifting of the reporting restriction. Technically, the three Justices of the Supreme Court were simply refusing his application for permission to appeal, but the effect was the same. He had come to the end of the road.

Conceivably, if his arguments under the Human Rights Convention were strong enough, he might apply to the European Court of Human Rights in Strasbourg, since he has exhausted the domestic procedures available to him; but as the Supreme Court has now ‘outed’ him by publishing its decision under the full name of Rotenberg v Times Newspapers Ltd, it would be a rather futile endeavour. The cat is out of the bag. The ‘blanket of anonymity’ has been whisked away, leaving Mr Rotenberg to face the full glare of publicity over his court case.

The case for anonymity

So why was the reporting restrictions order made in the first place?

The only published judgment on this issue is that of the Court of Appeal cited above. Moreover, the version available has not only been anonymised but also redacted: there is a parallel ‘closed’ judgment which sets out the full reasoning of the court: see para 6 of the ‘open’ judgment.

According to the published version, the ‘primary focus’ of Mr Rotenberg’s claim for anonymity was to prevent publication of certain information, as a result of which Article 2 of the Human Rights Convention was engaged. Article 2 protects the right to life. So in effect he was saying his life was in danger, or would be if his identity were reported in connection with the proceedings. It all sounds very cloak and dagger. But unfortunately, that’s as much as we can glean from the published version of the judgment of the Court of Appeal. That court, however, did not appear to share Mr Rotenberg’s apprehensions. Lord Justice McFarlane said, at para 12:

Having reviewed the relevant material it is very clear that there is no basis for an inference that the judge below found a right under Article 2 was established and that, in any event, there was no evidential basis which could have supported such a conclusion. … The evidence in support of such a serious finding is slender in the extreme.

The Times makes things a bit clearer. In a further article entitled How British courts protected Putin’s ally from the public eye [£] it states that back in 2013 another judge, Mr Justice Cobb, had granted a ‘contra mundum’ order (ie one against the whole world) preventing media reporting of the Rotenbergs’ case because, as the Times puts it, ‘their lives were under threat from people jealous of their “extraordinary wealth” and political connections’. But the Times argued there was no supporting evidence for such an assertion, and ‘while the media was muzzled, [Mrs Rotenberg] flaunted her wealthy lifestyle on social media platforms.’

They also point out, in a leading article entitled One Rule for the Rich [£], that the Russian media were free to report the case, and the way this rich oligarch was able to ‘buy’ the secrecy of the English courts shows ‘contempt for the British press’.

Having disposed of the Article 2 argument, the Court of Appeal considered the more usual balance of rights between Article 10 (freedom of expression) and Article 8 (privacy and family life) and concluded that the trial judge had struck the right balance, at the end of the case, in favour of lifting the parties’ anonymity.

Open justice and transparency

Having won the case, the Times is entitled to make a splash of the material at its disposal. Open justice has been served. But from the point of view of transparency, of knowing and understanding how the courts deal with financial dispute resolution cases, does knowing the name really matter?

Interestingly, the Court of Appeal’s decision discussed above is actually second time that court has considered the case. The first one, which was also reported anonymously, not only appeared on BAILII but also in the official Law Reports and specialist family law reports: R v R [2015] EWCA Civ 796;  [2016] Fam 153; [2015] 3 FCR 1; [2015] Fam Law 1330, CA. That’s because the decision was concerned about a point of law relating to the implementation in the UK of economic sanctions under an EU Regulation. Would ordering Mr Rotenberg (referred to simply as ‘the husband’) to pay money to his wife in Russia infringe the EU sanctions regime that applied to his business affairs in the UK? The court held it would not. He had no excuse not to pay for the maintenance of his ex-wife and their children.

It is now, of course, possible to link together these various judgments, which do not explicitly mention each other. But is that really necessary? From the point of view of open justice, the principle on which the Times relies in justifying its curiosity in this case, what matters is that the public are aware of what the courts are doing and why. Reporting the point of law about the effect of EU sanctions did not depend on knowing the names of the parties. The case is just as useful to lawyers, and to the general public who want to know what is being done in their name in the law courts, whether it is called R v R, or Rose v Rose, or Redhill v Redhill, or Rotenberg v Rotenberg.

Mr Rotenberg’s activities outside the court, as a crony of President Putin, may well be a matter of legitimate public interest and worthy of newspaper comment. His divorce and the ‘socialite’ lifestyle of his ex-wife may be too. Whether that is or should be an aspect of transparency in the justice system is perhaps less clear. At any rate it is something on which the judiciary, at the moment, is in two minds. Following the decision of the Supreme Court, led by Lady Hale, we may perhaps sense which way the wind is blowing.

Featured image via Shutterstock.