The case of Xanthopoulos v Rakshina [2022] EWFC 30 has hit the headlines because of the eye watering legal costs, and the excoriating judicial criticism of the parties for running them up. But Xanthopoulos is not only interesting because of its extraordinary financial extravagance. Below the passages about the millions and millions of pounds of fees and how they should be met, is a long section of the judgment about transparency. It is a bombshell.
You can read about the costs side of the case here in the Law Society Gazette. This post is about the transparency side. The relevant parts of the judgment begin at paragraph 74.
Paragraphs 74-142 of the judgment are detailed and, in places, technical. This post attempts to explain the judge’s reasoning on the transparency issues in an accessible way, although some of it is unavoidably complex.
The starting point is that the barrister representing the wife asked for the parties to be anonymised. He probably asked this because he was aware of two recent judgments by this judge (Mr Justice Mostyn) through which he has made clear that he no longer considers that anonymity should automatically or generally be given to the parties in financial remedy proceedings, but instead that this would need to be applied for and justified on the facts of the case.
Those two recent judgments are BT v CU [2021] EWFC 87, where Mostyn J said ‘it should be clearly understood that my default position from now on will be to publish financial remedy judgments in full without anonymisation, save that any children will continue to be granted anonymity. Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations’, and A v M [2021] EWFC 89, where he reiterated that approach and noted that the BT v CU judgment had generated ‘a certain amount of surprise’ because of a belief that he had ‘snatched away an established right to anonymity’ which in fact didn’t ever exist. The eagle eyed reader will spot that the parties WERE anonymised in those judgments, but that was only because they had been caught out by the change in practice that had been signalled after their case was up and running. Mostyn J made clear that, in future, other parties would have advance notice and should expect their cases to be dealt with on the revised approach. We didn’t manage to write about those judgments at the time they came out, but they are referred to in our response to a consultation on this topic issued by Mostyn J around the same time here.
Mostyn J has historically been a judge who was strongly in favour of the notion of privacy in financial remedy proceedings, often adopting a position in his judgments which contrasted with that of other ‘transparency’ proponents such as Holman J. In the past, Mostyn J would typically only name the parties to financial remedies proceedings in his published judgment where there was some culpability (bad behaviour) or because there is information in the public domain already that needs to be corrected (see for example Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) and Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315). These more recent judgments from him represent a complete reversal of his previously strongly expressed, clearly articulated and influential pro-privacy view, held over a number of years. This latter judgment goes even beyond the proposals set out in the consultation document he issued before Christmas.
In A v M, there are only a couple of paragraphs explaining Mostyn J’s position, and in BT v CU only a dozen or so. Here in Xanthopoulos, we have a much fuller explanation of the history of the extent of privacy and what that meant in terms of reporting them, and a much fuller explanation of the logic behind Mostyn J’s change of heart. He fully acknowledges that the consequence of his reasoning is that he and many other judges have been getting the law wrong for many years.
How is it possible all the judges have been wrong all this time?
Mostyn J says that since the judgment in A v M, he has managed to ‘[examine] the arrangements for dispatching business from the dawn of judicial divorce on 1 January 1858’. We aren’t going to take you through that in full. The gist of it is that, although courts have often dealt with financial remedy cases (previously known as ‘ancillary relief’) in ‘chambers’ or in private, in the sense that the hearing took place in a small room and the general public were not allowed in, this did not in fact equate to any restriction on what could then be reported about the hearing afterwards, because while sitting in private the judge was treated ‘as if sitting in open court’, meaning that the principles of open justice applied.
Mostyn J considers s12 Administration of Justice Act 1960 (AJA), and makes the point that this all fits with his new theory. s12 AJA is the piece of law that regulates what can and can’t be reported in cases about children where the court is sitting in private (and other sorts of cases we are not concerned with here). Mostyn points out that Parliament could have included financial remedy (ancillary relief) in the list of types of private hearings which s12 applied to, but it didn’t. This is, so goes the hypothesis, because financial remedy cases were always – and continued to be – different in terms of privacy to cases about children or those lacking capacity (you’ll see these categories referred to below as wards and lunatics, which are the equivalent historic phrases).
Mostyn sees all this as part of a distinction between private proceedings (which financial remedy proceedings are) and secret proceedings (which they are not – in contrast he sees the effect of s12 AJA as converting special categories of private proceedings to effectively secret ones – see para 97). He also considers the change in terminology in the Family Procedure Rules in 2010, which adopted the phrase ‘in private’ instead of the old ‘in chambers’. It wasn’t intended to make these sorts of cases more secret and the rules don’t say anything about reportability of what is said during a hearing (and, he says, they could have if the rule makers had wanted them to).
Mostyn J goes back to a case called Scott v Scott from 1913. This case referred to ‘in chambers’ and ‘in camera’ (which is a Latin form). When the case went to the Court of Appeal, one of the judges gave a dissenting judgment which was later endorsed by the House of Lords when they overturned the Court of Appeal’s decision and issued a judgment that has been relied on ever since in support of the open justice principle and when it should be departed from. Mostyn J quotes from this dissenting judgment at length. It talks at length about issues of privacy of hearings and secrecy of facts. We’ve extracted those bits of the judgment highlighted by Mostyn J and left out some of the more flowery Latin passages:
The language of the order provides for privacy at the hearing. It has nothing to do with secrecy as to the facts of the case... during all my experience at the Bar and on the Bench I have never heard it suggested that there is the slightest obligation of secrecy as to what passes in chambers. Everything which there transpires is and always has been spoken of with precisely the same freedom as that which passes in Court…
Beyond and besides this the Court acquires no power or jurisdiction over an individual by reason of his having become a litigant. He remains in all other respects as free and as independent of interference from the Court as he was before the suit was instituted or as any other member of the public is who has never been a litigant...
The conception of the Court interfering with litigants otherwise than by granting the relief which it is empowered and bound to grant is wholly vicious and strikes at the foundation of the status and duties of judges...
The serious encroachment on personal liberty which is here proposed is not supported by a single decision. There is on record no case where the Courts have asserted a right to control the personal acts of litigants after the conclusion of the suit except to enforce the relief granted...
I cannot forbear adding that in my opinion nothing would be more detrimental to the administration of justice in any country than to entrust the judges with the power of covering the proceedings before them with the mantle of inviolable secrecy.
The summary of the conclusion taken from this by Mostyn J is in para 90:
Certain sensitive proceedings aside (e.g. wardship, lunacy in Victorian terms), a hearing in chambers does not create secrecy for the facts of the case, so the parties to such proceedings, in the absence of a specific order to the contrary, are free to discuss and publish information about those proceedings.
All of this is put together in order to support Mostyn’s stake through the heart of the rubric, at least insofar as it relates to financial remedy cases. The rubric is the warning that traditionally appears at the top of a judgment telling people what they can and can’t do with it. Typically it will say :
This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.
A case called Re RB (Adult) (No 4) [2011] EWHC 3017 (Fam) explains what the rubric is and how it works, albeit in the context of children cases. The relevant passages are set out in Xanthopoulos from para 94 onwards, but can be summarised as being a mechanism through which to allow anonymous reporting of cases about children which would otherwise be prohibited by s12 AJA. Because a rubric is a sort of ‘reporting permission order’, making lawful what would otherwise be unlawful, there is no need for a penal notice, as there would be when a judge is imposing a prohibition or reporting restriction order.
And so, because s12 doesn’t apply to money cases (except those which are mainly about children), there is nothing that a rubric is required to permit. If they aren’t permitting something that would otherwise be prohibited and they aren’t prohibiting something that would otherwise be allowed they are no more use than your appendix. In Mostyn’s words at para 97:
It can therefore be seen that the rubric has no relevance to, or impact on, a financial remedy case which is not mainly about child maintenance. A further reason why it cannot operate as a form of anonymisation and reporting restriction order for financial remedy cases is that it would turn upside-down the omission of those cases from the section 12(1) list of types of secret cases.
The judgment also briefly considers equivalent caselaw about the impact of a hearing being in chambers in the civil jurisdiction, which were never assumed confidential or secret and that ‘what occurs in chambers and the judgment or order pronounced can, and in the case of any judgment or order should, be made available to the public when requested’ (quoting Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056). Although the Civil Procedure Rules now provide for all civil hearings to be formally in public (with some limited exceptions), many hearings do continue to be physically heard in chambers, but are nonetheless not secret, and can be the subject of provision of information to the public on request. There is plainly an equivalence between these two sorts of hearings in the family and civil jurisdictions and, on the Mostyn analysis, no valid legal distinction of principle between them as far as the open justice principle is concerned.
So, the conclusion is that if anyone wants anonymity in money cases, that can only lawfully and effectively be achieved if a case-specific anonymity order is made which complies with Civil Procedure Rules (CPR) 29.2(4) (para 101).
Although the CPR don’t actually apply to family proceedings and the Family Procedure Rules (FPR) don’t have an equivalent rule, Mostyn takes the view all this is derived from the common law in any event. That is consistent with authorities like Dring v Cape Intermediate Holdings Ltd [2019] UKSC 38 and R (Guardian News & Media Ltd), v Westminster Mags’ Court [2012] EWCA Civ 420, which make clear that rules of court derive from the common law or statute.
Interestingly, Mostyn also observes that a practice has developed of automatically including the rubric without any particular thought, because (in essence) that is how we’ve always done it, by including it in a word template used as the basis for any high court judgment (see pa 117-118):
In every financial remedy case, the standard rubric would be systematically generated and would appear on the front of the judgment unless specifically removed by the judge. It is hardly surprising, given the terms of the rubric, that judges may have thought that it had somehow been decided that every family case should be the subject of anonymity and therefore anonymised their judgments accordingly.
(We note that some transcription firms now seem to automatically generate rubrics when preparing transcripts, and that these may not always be apt, and that judgments on BAILII often appear with either no rubric or an apparently inappropriate rubric – for example sometimes they refer to the right to anonymity of those complaining of sexual assaults when no such issue arises in the judgment. This may be one to watch.)
Having identified how groupthink error may have arisen, Mostyn points out that an automatic inclusion of such a rubric without any consideration of the specifics of the case cannot possibly comply with the court’s duty to balance any competing rights, as required as part of the court’s duty under s6 Human Rights Act 1998 to act compatibly with convention rights.
He concludes that :
…an anonymity order in respect of a proceeding, including a proceeding heard in private, can only be made where in the individual case the “ultimate balancing test” has been undertaken. Obviously, a systematic endorsement of the rubric on the front of the judgment will not amount to a performance of that balancing exercise. [para 103]
The exercise that he is referring to, and that the court is required to perform in order to balance and weigh these competing rights, is set out at paragraph 17 of In Re S (a child) [2004] UKHL 47. This ‘Re S exercise’ has most recently been the subject of recent discussion in the case of Griffiths v Tickle [2021] EWCA Civ 1882, and that is explored in a post by Lucy Reed here.
The judgment refers to guidelines set out in H v News Group Newspapers Ltd Ltd [2011] EWCA Civ 42, to the effect that the general rule is names of parties should be included in judgments, even where private matters are in issue. Anonymity is a derogation from the principle of open justice and an interference with the Article 10 rights to freedom of expression of the public, and therefore close scrutiny of whether a restriction is necessary and whether any less restrictive or more acceptable (proportionate) alternative is possible. Applications based on Article 8 (private and family life) grounds depend on whether there is sufficient general public interest in reporting identifiable details to justify any infringement of Article 8 rights. In addition :
- There is no special treatment for celebrities – they get in principle no more and no less protection.
- An order should not simply be made because both parties consent – parties cannot waive the rights of the public.
- Interim orders for anonymity must be reviewed.
- A publicly available judgment should be given on an anonymisation application regardless of its outcome (it may need to be edited to avoid it being self-defeating).
- Notice of any hearing should be given.
Holding his hands up to having issued many anonymised judgments with non-compliant and ineffective judgments in the past, Mostyn goes on to explain why he and other judges have fallen into this error. Here he looks back at a case called Clibbery v Allan [2002] EWCA Civ 45, which was in fact not a case about financial remedy cases at all but concerned a Family Law Act injunction application. However, in the course of that judgment the President (who was then Dame Elizabeth Butler-Sloss) referred to the ‘implied undertaking’ which is said to tie the hands of someone who has received information disclosed into proceedings under compulsion and which stops them from using it for some other purposes, which would happen in financial remedy proceedings where there are duties of compulsory financial disclosure. There it was said that in ancillary relief (money) cases the evidence couldn’t be reported because of this implied undertaking, although Clibbery v Allan didn’t resolve the question of how this undertaking could tie the hands of journalists, who are not parties, because before 2009 journalists weren’t allowed into hearings . Mostyn points out that this doesn’t really square with s12 or Scott – because, on the Mostyn analysis, there is a clear distinction between cases heard in private where the facts are not secret, and cases heard in private but which fall under s12 where the facts are protected. He’s right. It doesn’t add up. They can’t both be right. The passages on this bear careful reading (paragraph 110-113), but Mostyn concludes, having acknowledged that he has in the past agreed with the idea that allowing journalists to publish information must be prohibited because it would ‘make a nonsense of the implied undertaking’, that:
If the freedom to report information about civil proceedings heard in chambers (i.e. in private) in 1998 did not “make a nonsense” of the implied undertaking, why did it do so for financial remedy proceedings heard in chambers (i.e. in private) in 2002? I have no answer to this question. So, it is now clear to me that the reasoning that led to the imposition of a mantle of secrecy in all ancillary relief cases stood on a very shaky foundation.
pa 112-113
And the rule change that allowed journalists into ‘private’ hearings in 2009 (later extended to legal bloggers), which Mostyn describes as ‘curious hybrid arrangements, whereby the proceedings simultaneously are, and are not, held in public’ is said to have ‘the effect of completely overturning the reasoning of the Court of Appeal’ (in Clibbery) (although apparently the judicial penny has only just dropped). Mostyn concludes that,
the privacy of the proceedings[…] is extinguished by the permitted presence of journalists or bloggers under this hybrid arrangement. That permitted presence means that the proceedings are to be treated as if in open court […] in the absence of a specific reporting restriction order, a journalist or blogger who receives information by virtue of being present during the proceedings, is fully entitled to publish that information. That entitlement is proved conclusively by the existence of FPR 27.11(3)(b) which allows the court to make an order excluding a journalist or blogger so that justice is not “impeded or prejudiced”. As an example of where justice necessitates the exclusion of a journalist or blogger, PD 27B para 5.4 cites a hearing where the court is considering confidential price sensitive information, exposure of which could affect the share price of a publicly quoted company. This rule and this example are only explicable if the journalist present in court was entitled to report that information. The rule would be entirely otiose, indeed nonsensical, if the journalist was anyway barred from reporting what he or she heard.
(pa 115)
As per Scott, which is more often quoted by lawyers as the source of the exceptional nature of private family proceedings when it comes to the open justice principle, in fact the current arrangements mean that the open justice principle applies fairly and squarely to money cases just as it does to civil proceedings, even if they are heard in ‘private’.
This seems to be yet another example of practices and beliefs springing up in the family jurisdiction without proper consideration of the applicable cross-jurisdictional legal principles that apply just as much to family as to anywhere else.
It’s worth noting that the effect and conclusion of Mostyn’s exposition of the real, hidden legal position here is that there are now published vast numbers of judgments in money cases, which are anonymised, and which the parties have expected to remain anonymised, but where via this judgment it is now confirmed publicly that the protection of the rubric is in fact no protection at all (para 119). This may cause some anxiety to those who wish to remain anonymous and could prompt some into publishing information, confident that they will not be able to be punished for doing so. It is not for us to advise on that, but it seems at least possible that there might be other remedies available for anyone whose private information is unexpectedly made public as a result of this judgment, and consequently other risks to anyone who thinks it would be fun to reveal someone’s identity against their wishes.
It must also follow that anyone who wishes to publish a judgment in a money case is, on the face of it, entitled to publish that judgment, as long as the judge has not prohibited it. However, Mostyn’s judgment on these issues, whilst detailed, does not appear to have been based on full argument of all the pros and cons – the wife’s position is barely set out here, the husband’s not at all. The judgment reads as if this case provided the vehicle for an essay that the judge wished to deliver on the topic. That doesn’t mean it’s wrong or unimportant, but the views set out by Mostyn are likely to be controversial because they will be unpopular with lots of clients who quite like their privacy and are prepared to pay lawyers to run clever arguments about why Mostyn is wrong. This means that there might in due course be an appeal, when the same issues come up in another case and the judge is asked to follow Mostyn’s approach. Until an appeal court has confirmed whether or not Mostyn is right, after hearing full argument, it would probably be unwise to rush out and publish without notifying the court or the other party of your intentions first. As a High Court judge, Mostyn’s judgment is persuasive but not binding authority on other High Court judges (but it is required to be followed by lower judges unless appealed).
There is a long footnote about the Judicial Proceedings (Regulation of Reports) Act 1926. In short, Mostyn J doesn’t think it applies to money cases. This has been the subject of intermittent judicial discussion in various judgments over the years and is quite technical, so we’ll leave it there.
Summary of the effect of this judgment
To conclude :
- In financial remedy judgments Mostyn J says ‘the default position or starting point should be open justice, and open justice means that litigants should be named in any judgment, even if it is painful and humiliating for them’ (pa 121).
- No permission is required to publish a judgment (and Mostyn J says Munby P’s 2014 guidance about this was wrong in relation to money judgments)
- Whilst the President was correct to say, in his report following the Transparency Review, that ‘the court restricts publication of confidential financial information disclosed in financial remedy proceedings…[and] control[s] the release of information for publication, where this is sought, by an express order’, this current practice is not in fact the law. Unless the court has made an order prohibiting reporting, any blogger or journalist can crack on. Here Mostyn corrects a lawyer who wrote a blog for the new Financial Remedies Journal for getting this the wrong way round (we think this is a bit mean, but to be fair she is in good company in getting it topsy turvy, as several former Presidents and Mostyn himself have done likewise). The correct question is not ‘Why is it in the public interest that the parties should be named?’, but ‘Why is it in the public interest that the parties should be anonymous’? The burden of proof falls on the party who wants anonymity, not the journalist or blogger who wants to publish. (We will be testing this theory out in our legal blogger capacity in due course!)
- Nothing in this judgment changes anything about the rules in relation to judgments in children cases.
What next?
Final stretch – there are two real kicker paragraphs at the end :
The first is to point out that whilst the Family Procedure Rule Committee can make rules about all this, it can only do so within the confines of primary legislation and the common law – it can say that something that would otherwise be a contempt is ok to do (for example it does this via FPR 12.73 and 12.75 and PD12G which stops some types of communication of information about children cases being a contempt of court through breaching s12 AJA), but it can’t make rules that make something a contempt that isn’t already a contempt at common law or by statute (the rules committee doesn’t have power to make new law). In short signals Mostyn : this is the law whether you like it or not. If you don’t like it you’ll have to persuade Parliament to change it. Don’t think you can fudge it by going through the rules committee. They aren’t allowed to alter the law this way.
Secondly, Mostyn throws this particular hot potato in the general direction of the TIG (lucky things) :
I accept and understand that the question of open justice in financial remedy cases is a matter of some controversy on which views are far from unanimous. I express the hope that the Financial Remedies Court Transparency Group (a sub-group of the Family Transparency Implementation Group) will consider carefully the legal issues raised in this judgment.
(pa 141)
Quite what the TIG will do with this is anyone’s guess. There may well be some change in behaviour on the part of wealthy litigants however – some of whom may either choose more private routes to resolving their disputes than a court process (e.g. arbitration), some of whom may be more inclined to settle than to fight it out (thus avoiding a judgment being published at all), some of whom may not be at all bothered by potentially being named and may be quite happy to fight it out even if their ex is not (particularly if their ex is not), and some of whom may make applications for anonymity. Whether they will succeed without compelling justification is less clear.
Watch this space.
Feature pic : Private No Entry by Brad Highham on Flickr – thanks (Creative commons)
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