Family Law publishes a regular column by The Transparency Project. This blog post originally appeared in the March 2018 issue,  Fam Law 333.
In late January 2018 the President published his ’18th View from the President’s Chambers: the on-going process of reform – Financial Remedies Courts’ (see  Fam Law 156). Hidden within is a potentially important transparency reform concerning financial remedy cases in the new specialist Family Remedies Court (FRC). In an intriguing announcement Sir James says:
‘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.’
The correct approach to privacy in financial remedy cases has long been a matter of controversy, as much amongst the judiciary as the wider public. Whilst the press seem only to be interested in the wealthy or badly behaved (especially where they co-occur), and whilst news reports are mainly about the so called money-grabbing wives of successful footballers or tycoons and their meal tickets for life – the vast majority of family cases are far more mundane, though every bit as important and difficult for the ‘ordinary’ families involved. Mostyn J has made clear his view (in DL v SL (Financial Remedy Proceedings: Privacy)  EWHC 2621 (Fam),  2 FLR 552 and elsewhere) that the financial affairs of a divorcing couple are ‘quintessentially private’ (absent iniquity or the need to correct false impressions and misconceived facts) while Holman J has taken the opposite approach and interpreted the FPR so as to permit regular sitting in open court.
Nothing in this brief announcement suggests that the dispute about whether proceedings should be held in public is about to be resolved but there will, it seems, be more routine publication of information in ‘bog standard’ needs-type cases – presumably anonymously. At the time of writing (early February) it is not yet clear precisely what the President has in mind, or how matters will work in practice.
Whilst it probably does not do to overburden the words in this short passage, we assume that the President has chosen his words with care. It may well be significant that the President talks of ‘reporting’ rather than ‘publication’ of judgments – does ‘the reporting of judgments in small and medium cases’ mean publishing on BAILII (as happens under the 2014 transparency guidance), or does it mean ‘reporting’ in the traditional sense, i.e. by law reporters? And if so, how does this square with the need for those outside the professional domain, i.e. litigants in person to access the information to help them ‘predict’ outcomes, and with the headline of ‘transparency’? Does it mean the ‘reporting’ of judgments to some central committee or body for collation or analysis, so that the data gathered can be crunched and parsed and presented in accessible, digested and digestible format for public use to sit alongside the 2016 ‘Sorting out finances on divorce’ guides, which currently contain only hypothetical case studies rather than real cases or statistics?
That such a short passage of text can generate so many questions, demonstrates that there is much potential here for the harnessing of information towards the furtherance of substantive justice through transparency – by making information both available and accessible to the public, and not just to professionals. But if the intention is to facilitate analysis of the sorts of decisions courts make in ‘ordinary’ money cases, the way in which information is gathered, presented and released, and the volume of information released will be critical. The release of a smattering of judgments in children cases under the 2014 guidance makes it difficult to draw conclusions about patterns of decision making or outcomes – the very publication of judgments is itself atypical and a judgment in such a case is unlikely to be representative. Whilst we have been saying for years that there is a public interest in the publication of legally uninteresting, ordinary cases, because it makes visible the day-to-day work of the court rather than the atypical but newsworthy tip of the iceberg, the reality is that judges are only likely to invest time and energy in publishing judgments that are somehow important or special above and beyond their categorisation in a class of judgments.
But this reform appears to anticipate across-the-board publication of all judgments (presumably with the potential for exceptions where appropriate) that fall into the category of small or medium financial remedy cases. Cases that in themselves may neither be of interest to the press, or to their readers, or to lawyers, could in combination produce a big data set which could help us better understand and predict the likely outcome in a case, to identify regional variation and to help in the assessment of litigation risk. Understanding what sort of cases go to trial and what happens when they get there could help establish patterns of inefficiency that would shape adjustments in the approach to case management. Standardised judgments which incorporate, as a minimum, certain pieces of required information would enable sophisticated data analysis through the creation of databases. But it does appear that the President anticipates more than the mere publication of bare facts and outcomes a la Kemp & Kemp in the personal injury field, because he refers to the reporting of ‘judgments’ rather than (for example) ‘summaries’.
All of this is presently speculation about the potential shape of this area of reform, but what is clear from the Cardiff research into the implementation of the 2014 transparency guidance in children cases (and from common sense) is that much of what we have mooted above would require time and resource, which is in scarce supply. That said, early investment in robust standardised processes and training of judges could streamline the production and publication of judgments as a commonplace part of the daily work of a FRC judge. It seems likely that in many of the cases to be reported there will be no lawyer, or at best one lawyer acting, and no public funding – so the burden of preparing a judgment will likely fall on the judiciary (and/or HMCTS). It may be that the President will issue revised guidance, setting out the detail of how all this will work in practice, or that the Practice Direction pertaining to the FRC pilots will spell it out.
The routine publication of judgments in financial remedy cases creates an anomaly when laid alongside the continuing infrequent and inconsistent publication rates in children matters where the public interest arguments for publication (as well as arguably the privacy arguments against) are more obvious or more acute. The 2014 guidance acknowledges through the schedules of types of judgments that should ordinarily be published, that public interest may lie in the type of case rather than the facts of the individual case – but in truth this has not been made real – very few judges publish all or even most of the cases falling within the categories listed in the schedule.
Either way, the idea that 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 consequence of a mere increase in publication rates. 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.
At The Transparency Project, we will do our best to make good use of whatever information is published to improve public understanding of the law and its operation in this field. We observe that the public are still are not routinely referred by the press to the ‘rulings’ they are selectively reporting from, and that even when they are signposted to BAILII, it would be very difficult for anyone other than a specialist to wade through the mass of information there, and to make sense of it – because of limitations on search functionality, length and complexity of judgments and the language used, and the use of technical terms or cross references to material not in the public domain (up to date legislation, reported cases not on BAILII etc). Even a lot of information is a dangerous thing to those who do not have the tools to interpret it.
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 (the Cardiff research suggests that the practical implementations of anonymising judgments represent a significant barrier to judicial willingness to publish).
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) is not on the cards.