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Law Column: What the press can report in divorce cases

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Reporting divorce cases

 Jo Vale

Foot Anstey 5 October, 2015

 

The question of what the press can report in divorce cases, where couples have gone to court to divide up their money and property after their marriage has ended, is  mired in confusion.

Now the matter has been cleared up, at least for the moment, thanks to Nicole Appleton and Liam Gallagher after the judge in their financial remedy hearing ruled on what can be reported.

Mr Justice Mostyn described the regulations around what can or cannot be reported as ‘a crazy system’.

It has never been clear whether the press are bound by the duty of confidentiality that exists between the divorcing couple who are disclosing their financial details. Nor has it been clear whether an Act restricting reporting dating back to 1926 is relevant to financial hearings or not.

The Appleton case is now good law for the fact that reporters are prohibited from revealing the financial information which is held in the couples’ voluntary disclosure and divorce questionnaires. Nor can the press report witness statements or oral evidence.

The rationale for Mostyn J’s decision is that financial remedies proceedings involve the disclosure by each of the divorcing pair of highly personal and private financial information. Information that they would not reveal, had they not been compelled to by the court. The parties are bound to keep this financial information confidential. 

 Before now, the press has argued that it is not bound by this duty of confidentiality between the parties. But the Appleton judgment means that the press is bound by this duty and cannot report financial details unless they are already in the public domain.

Nicole Appleton’s QC contrasted the Appleton and McCartney/Mills cases. The financial details of the McCartney case could be reported because both parties had “waged their battle through the press outside the court”. Both Nicole Appleton and Liam Gallagher had kept their financial wrangle to themselves, and thus according to their barrister, have not spoken of their divorce in a “warring way”.

In 2009, the press, but not the public, was allowed to report cases held ‘in private’ in the Family Division of the High Court for the first time. The press may have seen this as an opportunity to publish the truth about high-profile divorces – stories that can involve conflict, hidden money and bad behaviour – in the public interest.

The Court, however, did not see it like this. The court’s view of the role of the press is more observer than watchdog.

One source of the confusion about what can be reported in divorce financial remedy cases is due to a lack of agreement between Family Court judges over whether an Act, which goes back to 1926 – and relates to cases held in public rather than in private – is good law. This Act was designed to prevent the reporting of the salacious and unseemly evidence to protect the morals of 1920s Britain, but it has been used ever since to limit the reporting of  financial remedy hearings held in private  to the names and addresses of the parties, a concise statement of the charges and counter charges, points of law during proceedings and the reporting of the judgment at the end of the case. It seems that for the moment, this will be the default position for reporters.

Those of us who argue for open justice will be tempted to ask: What better way is there to ensure that financial relief cases are resolved fairly, than to report the true facts of the case, in the public interest, especially when one or both of the parties are well-known and powerful? In some high profile cases, one party will be very much in favour of full reporting in the press, to protect their position and ensure that their partner’s behaviour and true wealth is in the public domain.

As happens so often in cases involving reporting restrictions, the conflicting demands of privacy rights, open justice and freedom of expression are at play. For the moment,  Mostyn J has come down heavily in favour of the former.

However, in his judgment in the Appleton case, Mostyn J has granted permission for News Group Newspapers Limited to appeal his decision, in order that the Court of Appeal could resolve the “unhappy divergence of judicial approach” once and for all. 

Or not…..