The Financial Remedies Court sub-group of the Transparency Implementation Group (TIG ) has published a 164 page report. This refers to cases about financial remedies on divorce i.e resolving issues between divorcing couples about their income and assets – they are not cases about children. The parties often have legal representation, but not always.
The sub-group is chaired by HHJ Stuart Farquhar and has 12 other members, all judges or practising lawyers plus one journalist. Unlike the other TIG groups, there are no stakeholders such as families or government departments represented. However the sub-group gathered information from other countries about their systems, and undertook a survey (mainly of lawyers in England and Wales) which had 585 responses. This is a far more legalistic document than other TIG reports. Specialists will want to read the whole report but for those who just need to know what it says, there’s a summary on pages 6-14.
In this post, we briefly outline why a separate report about transparency was needed and the gist of the sub-group’s proposals.
The differences between children cases and finance cases
- Attending court.
Under the Family Procedure Rules, most types of family proceedings are held in private (rule 27.10) This includes financial remedy cases. The same categories of people who can attend children hearings can attend finance hearing (parties; witnesses; lawyers; Mckenzie friends; media & legal bloggers etc). However some judges have seen this privacy as more of a presumption that can be more easily shifted than in children cases.
2. Access to documents
Only the parties have a general right to all documents. The current Reporting Pilot allows media and legal bloggers some access in the three participating courts, but this does not apply to financial cases. A journalist or blogger attending any hearing under FPR 27.11 can ask to see some documentation to help them clarify details they want to write on, and the judge will make a decision.
3. Sharing information about the case
There is no legislation protecting anyone’s identity or stopping anyone talking about or publishing information about the case. Section 97 Children Act 1989 and section 12 Administration of Justice Act 1960 do not usually apply. Traditionally, parties were thought to be bound by an implied undertaking that they would not divulge any information obtained during the proceedings. This was the settled position until a couple of years ago, when some uncertainty and disagreement emerged, which we’ve written on here. However, although various views have been expressed about this implied undertaking, it is described in binding Court of Appeal authority which has not been overruled.
4. Identifying the partes in the case
Traditionally, judgments in the higher courts that reached the Law Reports were usually anonymised. Similarly to point 3 above, what had been treated as a ‘right’ to anonymity has recently been questioned. This point is considered at great length in the report.
What the report says
1. Attending court
The report suggests that the current framework is broadly correct and that attendance rights should not be extended beyond the current limits. However, it’s noted that there isn’t enough transparency about cases listed beforehand to allow the media or legal bloggers to potentially report, and that not all courts are aware that they are entitled to attend. We’re very pleased to see that the report recommends our guide on what to do if a reporter attends your hearing.
2. Access to documents
It’s proposed that reporters could be given access, on request, to parties’ position statements and to a court form that sets out a chronology and basic facts. The reporters will not be given access (without application and approval at any rate) to documents identifying the parties assets (bank account numbers etc).
3. Sharing information
A standard ‘Reporting Order’ could be drawn up at the beginning of the hearings where reporters may attend – the report suggests this should be standard in the High Court but should also happen in a Family Court case that reporters are likely to attend. This would set out what can and can’t be reported to protect some aspects of privacy while allowing the reporter to make sense of the case. Parties can’t themselves won’t be allowed to give any documents that are part of the proceedings to a reporter who didn’t attend the hearing.
4. Identifying parties
The report does not agree with the opinion recently expressed by Mr Justice Mostyn that parties have no right to anonymity, and it seems that most other judges are still following the traditional line of anonymity, if they do send their judgments to TNA. The report recommends that parties should normally not be identified.
Another point to note is that the report agrees with the recommendations from the Anonymisation and Publication sub-group that more judges at lower levels should be encouraged to send their judgments to TNA, so we can see a wider range than ‘big money’ cases.
There doesn’t seem to have been any published comment on this report, apart from a piece by Jonathan Ames in The Times [paywall] which calls Mostyn J ‘renegade’ and focuses on wealthy husbands not wanting to be identified. There’s an error in that article suggesting that the Reporting Pilot in Cardiff, Carlisle and Leeds includes finance cases – it doesn’t.
Image: Creative Commons Licence – ‘Money’ by Nick Youngson at picpedia
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Thanks for reading!