Financial remedies and anonymity orders

Financial remedies and anonymity orders

Family analysis: The recent Court of Appeal judgment in Norman v Norman clarified the law on anonymising reports in financial remedy proceedings. The wife had applied for an extension of an anonymity order made in 2011, and the case had been litigated over many years and through many courts. Duncan Brooks, barrister at QEB, discusses the decision.

Original news

Norman v Norman [2017] EWCA Civ 49, [2017] All ER (D) 84 (Feb)

The Court of Appeal, Civil Division found in response to a wife’s application for an anonymity order, in the context of ancillary relief proceedings, that a decision to refuse to impose reporting or anonymity restrictions was a proportionate response to such entitlement as the wife might have to privacy under Article 8 of the European Convention on Human Rights (ECHR).

Why is this case noteworthy?

Traditionally, financial claims upon divorce have been heard in private at first instance (although that itself is now a hot topic of debate). However, if the case progresses to the Court of Appeal or Supreme Court, the starting point is that those appeals will be heard in public and that the litigants will be identified. There are exceptions—when acting for the wife in K v L (Non-Matrimonial Property: Special Contribution) [2011] EWCA Civ 550, [2011] 2 FLR 980 we were able to obtain reporting restrictions ensuring that the parties and their children remained anonymous. That was a very unusual case, though, the family was very wealthy but lived frugally and even the children were unaware of the family’s wealth.

The issue in Norman was whether appeals in the Court of Appeal in financial remedy claims (heard in private below) ought generally to be the subject of reporting restrictions so as to preserve the litigants’ anonymity. In DL v SL [2015] EWHC 2621 (Fam), [2015] All ER (D) 114 (Sep) Mostyn J had suggested that the Court of Appeal ought to revisit its practice and impose reporting restrictions in financial remedy appeals. Mostyn J noted that in JX MX v Dartford and Gravesham NHS Trust [2015] EWCA Civ 96, [2015] All ER (D) 180 (Feb) the Court of Appeal had departed from the general rule and imposed reporting restrictions on an appeal involving approval of an infant settlement in a personal injury case. Those applications are heard in private at first instance, and Mostyn J suggested that financial remedy applications ought to be treated similarly.

Having considered the matter in detail, the Court of Appeal disagreed.

What key issues did this case consider?

The Court of Appeal held that cases such as JX MX v Dartford are very different to financial remedy cases. JX MX v Dartford involved a claim by a child to approve a settlement. Appeals in financial remedy claims generally do not include claims by children, and seldom relate to the approval of settlements. Accordingly, it was held that there was no need to revise the general practice of hearing appeals in public and un-anonymised.

The Court of Appeal then went on to consider whether there ought to be reporting restrictions. It considered the litigants’ rights to a private and family life pursuant to Article 8 ECHR as against the right of the press to freedom of expression pursuant to Article 10 ECHR. It held that the balance fell firmly against imposing reporting restrictions.

What are the common issues in this area of law and is the judgment helpful in clarifying these?

The law in this area is unhelpfully convoluted. This judgment did not have to deal with the majority of those issues, but did give helpful guidance about how applications for reporting restrictions ought to be made in the Court of Appeal and the balancing exercise that will need to take place when considering those applications.

Are there any remaining grey areas?

Over recent years, there have been moves towards transparency in the Family Court. A debate has been ranging at High Court level about whether financial claims upon divorce should be heard in public or in private, and also whether the press (who are allowed to attend even if the proceedings are in private) ought to be able to report what they hear. Holman J tends to hear final hearings in public (see, eg Luckwell v Limata [2014] EWHC 502 (Fam), [2014] 2 FLR 168), whereas others hear them in private (eg Mostyn J in DL v SL). In Norman, the Court of Appeal was keen to point out that its decision did not deal with what ought to happen at first instance. King LJ did add her weight to Mostyn J’s call for the matter to be dealt with by the Court of Appeal, noting that ‘fortunately the matter is to be considered in the Court of Appeal in the near future’, so watch this space.

Further, even 90 years on, there is a debate about whether or not the Judicial Proceedings (Regulation of Reports) Act 1926 (JP(RR)A 1926) imposes criminal penalties for reporting certain details of financial remedy claims. The point remains moot, with different judges (both in the High Court and Court of Appeal) proffering different opinions. That cannot be a satisfactory state of affairs.

If reporting restrictions are sought, there are various different routes to obtain them, including:

  • an application for reporting restrictions under the Human Rights Act 1998
  • an application for anonymity pursuant to the Contempt of Court Act 1981 (as in A v BBC [2014] UKSC 25, [2014] All ER (D) 65 (May))
  • restrictions that may potentially be imposed by JP(RR)A 1926, and
  • if children are involved, pursuant to the Children and Young Persons Act 1933

These issues often have to be dealt with on very short notice and can be an unhelpful distraction from the main dispute.

Are there any trends emerging in this area of law? What are your predictions for the future?

There are two schools of thought and it is unclear which will prevail. The majority of High Court judges hear financial remedy proceedings in private and are willing to impose reporting restrictions if requested. If pressed, I predict that the Court of Appeal will endorse the orthodox view, but I may well be wrong about that. What remains clear is that it will be very difficult to obtain reporting restrictions in the Court of Appeal and that unusual circumstances will be required.

Duncan Brooks is a family law barrister, arbitrator and collaborative practitioner at QEB. He is familiar with the financial complexities arising in cases involving high net worth clients, including businesses, trusts, taxation and international forum disputes (both in respect to divorce/financial applications and also relocating with children). He was junior counsel in K v L and has written articles and lectured on the topic of reporting restrictions.

A family arbitrator (MCIArb) since 2013, Duncan has been appointed as the arbitrator in 13 arbitrations, and has delivered awards in ten. He has also acted in arbitrations as a barrister. He regularly represents clients at private financial dispute resolution appointments (FDR) and also acts as the private FDR tribunal. He is also available as an early neutral evaluator in child welfare disputes.

Interviewed by Janine Isenegger.

The views expressed by our Legal Analysis interviewees are not necessarily those of the proprietor.

This News Analysis was first published in LexisPSL Family. Click here for a free one week trial.

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