Transparent or just slightly less opaque?

In 2014 Sir James Munby, President of the Family Division issued new guidance in relation to the publication of judgments in the family courts. The guidance distinguished between two classes of judgement: those that the judge must ordinarily allow to be published and those that may be published. The first category consists of all cases were the judge concludes that publication would be in the public interest. The second category consists of cases where a party or a member of the media applies for an order permitting publication and the judge concludes that permission should be granted.

The guidance was aimed at increasing the number of judgments available for publication even if many of those judgments were published in an anonymised form. It was hailed as marking the beginning of a significant change in practice with headlines proclaiming Munby as the champion to create greater transparency and end the secrecy of the family courts.

Since the guidance was issued, there has been much debate about the difference between secrecy and privacy from commentators and judges alike, but there has also been a marked difference between the judges in the High Court in how the guidance and the calls for greater transparency have been interpreted.

Mr Justice Holman has taken to sitting in open court. In Luckwell v Limata [2014] a very acrimonious divorce was conducted in public with no restriction on what could be reported.

In Fields v Fields [2015] Holman repeated his opinion that there should be more openness in financial cases and urged the parties to reach a settlement outside of the Court. Holman stated that “To permit the presence of accredited journalists, but then tightly restrict what they can report, creates a mere illusion of transparency”. Holman then again sat in open court with no restriction on what could be reported.

Mr Justice Mostyn does not agree with Holman’s view and has insisted that such disputes are “quintessentially private business”. Mostyn’s opinion is that in most cases were anonymity is sought the right to privacy will trump the right to unfettered freedom of expression. Reporting restrictions should be put in place.

So, in Mostyn’s court financial disputes are private and the parties can be fairly confident of their anonymity, whilst in Holman’s Court the parties are likely to be named and the details of their battle, warts and all, published in a judgment and possibility, in the press.

Speaking in a recent financial dispute hearing Mr Justice Moor suggested that the Court of Appeal should now examine the issue stating that “It seems to me that this difference of opinion between the other judges and Mr Justice Holman needs to be dealt with”.

As with many issues in the family courts, the outcome in relation to a specific issue depends on the judge on the day but if the judges themselves are seeking further guidance surely there has to be a test case on the horizon. The issue will be whether it is heard in open court or in private…