This is a guest post by Alex Chandler. Alex is a barrister specialising in financial remedy claims on divorce. He practises at 1 King’s Bench Walk, Temple, and also sits as a part-time judge, arbitrator and private FDR judge. His reported cases include a recent decision which reviewed the jurisdictional basis of objecting to arbitral awards being made orders of court (BC v BG  EWFC 7). Alex tweets @familybrief.
Adele is by all accounts a highly private person. She is, if the tabloids are to be believed, ‘publicity shy’ or ‘super shy’, even to the point of being ‘reclusive’.
The sad news of the breakdown of her marriage to Simon Konecki broke with a flurry of headlines speculating about the financial terms of their divorce. According to The Times (“Adele’s Husband Will be Rolling In It After Divorce”, 21 April 2019), Adele “…could be forced to hand half of her £140m fortune to her husband”. That, admittedly, is not a view likely to be shared by anyone with actual knowledge of the case, or indeed by readers with even a basic understanding of family law. However, in fairness to the Times, the article was written not by its Legal Editor, but by an Entertainment Correspondent; which tells you everything you need to know about the news values that apply to celebrity divorce, where the emphasis is always firmly on ‘celebrity’.
The risks of going to court
Advising a celebrity who is about to go to the family court introduces an unknown factor into the equation: publicity. Will the press actually be there? If they do attend, will the hearing be in private, with restrictions on what can be published, or is there a possibility that the hearing will be conducted in open court?
The applicable rules can be summarised as follows:
- Family hearings are normally heard in private (Family Procedure Rules 2010 (“FPR”), r. 27.10);
- Accredited members of the media may attend private hearings (FPR r.27.11(2)(f)), as may legal bloggers, in accordance with a Pilot Scheme in effect from 1 October 2018 to 30 June 2019 (FPR PD 36J). The exception to this rule relates to hearings conducted for the purpose of judicially assisted conciliation or negotiation, such as a Financial Dispute Resolution appointment, where neither media nor legal bloggers can attend (FPR r. 27.11(1));
- What the media can actually report at a private hearing will generally be extremely limited to whether the parties actually attended, the nature of the hearing and the identity of the lawyers etc. In practice, this may not prevent some news organisations, such as the Mail Online from publishing endless photographs of the parties taken outside the court building, with the dubious hook of the news story being that the parties’ attended court;
- The court has a discretion to exclude the media completely, such as where the interests of a child require, (FPR r. 27.11(3), although in practice this is difficult to achieve;
- Equally, the court has a discretion to conduct the hearing in open court (FPR r. 27.10), which in practice has been sparingly used, most commonly in cases heard by Mr Justice Holman.
The consequence of a judge deciding to hold a hearing in open court is epitomised in case of Spencer, where Earl Spencer’s legal team were reputedly wrong-footed on the morning of the final hearing when the trial judge (Mr Justice Munby) made a preliminary decision to hold the hearing in open court. The awful prospect of the hearing taking place in the full glare of the public eye allegedly led to the Earl increasing his settlement offer to his ex-wife by £1m, whereby all that happened was that agreed heads of agreement were submitted to the judge. That at least was contended for in the Earl’s subsequent claim for professional negligence against his matrimonial advisers, which ultimately was settled.
An added complication is that at the High Court level, there is one judge who exercises his discretion almost invariably to sit in open court (Mr Justice Holman) whereas all other judges of the Family Division generally sit in private. Anyone who doubts the almost insatiable newspaper appetite for family law should consider the case of Fields v Fields EWHC 1670. In Fields, Holman J made his usual order that the case should be heard in open court, leading to the details of the parties’ legal costs and claims being splashed on the front page of the Telegraph, in spite of neither party having any public profile, and the case being of limited legal interest. In Fields, the parties had the misfortune of both looking photogenic enough to merit the front page.
It might once have been said that headlines of this nature have little long-term damage: today’s headlines are tomorrow’s fish and chip paper. However, as Aaron Sorkin put it so brilliantly in ‘The Social Network’, “The internet’s not written in pencil. It’s written in ink”.
Reputational damage that arises from a bad headline will now last for as long as the information appears on a Google search.
Alternative Dispute Resolution: Arbitration
So, there are risks of publicity in going to court. The alternative for someone like Adele is entering into private alternative dispute resolution such as mediation. However, a mediator’s role is limited: he or she can broker a settlement, but cannot decide an issue where the parties disagree. What options might Adele have if Mr Konecki, swayed by the opinion of the Times’ Entertainment Correspondent, decides he won’t take a penny less than £70m?
The answer lies in arbitration. Since 2012, divorcing couples have been able to put their disputes to a privately instructed arbitrator, accredited by the Institute of Family Law Arbitrators. The application is made on an ‘ARB FS1’ form, jointly signed by both parties, which may nominate the preferred arbitrator.
A key element of any arbitration is privacy: Article 16.1 of the IFLA Arbitration Rules provides “…The general principle is that the arbitration and its outcome are confidential, except insofar as disclosure may be necessary to challenge, implement, enforce or vary an award (see Art.13.3(c)), in relation to applications to the court or as may be compelled by law”.
In other words, the media has no right to attend an arbitration. Nor would they receive any notice of the venue of the arbitration (unlike court lists which are posted in the court building). The only possibility of the confidentiality of an arbitration being breached would be where a court hearing takes place, either to enforce compliance, or where one party seeks to oppose the making of a court order in terms of the final arbitral award (See BC v BG  EWFC 7, and DB v DLJ  EWHC 324 (Fam).
Much has been made of the advantages of arbitration, which is sometimes described as the BUPA option compared with going to court: that the hearing can take place speedily, where the parties control which issue are put to the arbitrator’s decision etc. However, the key advantage for anyone seeking to protect their public profile, and to avoid further washing of dirty laundry, is that arbitration offers far greater privacy.
Image – private by Bryan Kennedy (Flickr) with thanks