We’ve been waiting, hawk-like, since 2014 for the ‘next steps’ in transparency reform. And when it came we almost missed it, hidden like a tiny rodent camouflaged under a bush.

The President’s View number 18¬†was published last week. It is all about new arrangements for the handling of Financial Remedy case – an unlikely place for an announcement about transparency you might think. In View 18, having explained that a ‘cadre of specialist judges’ will be appointed to the new Financial Remedies Court (FRC), the President of the Family Division Sir James Munby says, almost en passant :

The delivery of substantive justice will be improved by an improved programme of judicial training; by the reporting of judgments in small and medium cases by the judges of the FRC to promote transparency and consistency; and by ensuring that sufficient time is allowed for the preparation and conduct of final hearings. An increase in transparency will result in increased predictability of outcome, which in turn should lead to a higher rate of settlement or, for those cases that do not settle, a reduced rate of appeals.

We’re not *quite* sure yet what that means in practice. Does ‘the reporting of judgments in small and medium cases’ mean publishing on BAILII as happens with children cases under the transparency guidance, or does it mean ‘reporting’ in some other sense (‘reporting’ is not necessarily synonymous with ‘publication’ – it might mean reporting by law reporters, for example, rather than bare publication)? If the purpose is to enable comparison of cases to identify and promote consistency will there be systematisation of the process through, for example, standardised judgments or the maintenance of a database? Will it mean that the President will issue revised transparency guidance, setting out when judges in the FRC should and should not publish judgments in the public interest? Or is this an indication that the public interest that tips the balance in favour of publication of private information is to be found in furthering the objective of the ‘delivery of substantive justice’ through the ‘big data’ effect, enabling people to see patterns through volume of judgments published? That is to say : the public interest lies in categories of case rather than the individual circumstances. The existing transparency guidance does depend to some extent upon the notion that certain categories of case tend to hold public interest and are therefore more likely to justify or require publication (for example final decisions about the removal and placement of children for adoption), but the idea that this sort of generic public interest is to be found in financial cases is far more controversial (although we have been suggesting for some time that the publication of judgments in ‘bog standard’ or typical family cases holds precisely this sort of public interest, even where the press would no doubt consider it is not ‘of interest’ to the public (i.e. it would not sell newspapers).

The President indicates that the Family Procedure Rules Committee will be considering a Practice Direction relating to the piloting of the FRC, but it isn’t yet known how much this will clarify the transparency angle.

Either way, the idea that we’ll see judgments in ‘normal’ cases, rather than just the celebrity big money cases that the public typically have access to through the mainstream media, is certainly to be welcomed. Using the publication of judgments to improve consistency and predictability of outcome is, however, not an inevitable outcome of simply more publication. That will depend upon clarity and accessibility of judgments, upon consistency and volume of publication over time and across regions, and upon research and analysis of the arising dataset.

The President does not say (but it seems reasonable to assume) that any judgments published would ordinarily be on an anonymised basis, and judges in the FRC will have to get used to drafting or delivering their judgments in anonymised form if the burden of readying them for publication is not to be too onerous to keep up with (as to which see our earlier posts on the practical difficulties in consistent implementation of the existing guidance).

We await more detail with interest, but in the meantime, our other observation is that if the President is announcing a plan for the publication of judgments in such cases, this is probably an indication that far more radical pilots or reforms (for example a pilot of open court hearings modelled on the former pilot in the Court of Protection) are probably not on the cards.

Pic courtesy of Liz West (flickr)