Earl Spencer and his former wife Caroline ducked under the media radar last week in a case that highlighted the limitations of new rules on media access to family hearings.

It was a missed opportunity for one of the country’s top family judges, Mr Justice Munby, to give much needed guidance on the media’s freedom to report on domestic and financial matters in family cases that do not involve children.

The press won an initial victory when the judge refused to exclude reporters from the ‘in private’ hearing at the High Court, under new rules that have allowed reporters access to such hearings since April.

But when it came to the more substantial issue of what would be openly reportable from the hearing, the Earl and his ex-wife side-stepped what would have been a precedent-setting ruling from the judge, by withdrawing into confidential out-of-court negotiations.

The resulting privacy will do nothing to increase public confidence in the family courts system through public scrutiny – the aim of the new access rules.

Important questions remain unanswered about cases which involve financial disputes between adults.

If reporters are allowed in, do the litigants retain any reasonable expectation of privacy over the information aired in the court, which in theory at least is still sitting ‘in private’ albeit with journalists present?

If no reporting restriction is imposed and the media report all the details, could the parties subsequently bring a successful privacy claim for damages and an injunction against repetition?

The answer, probably, is ‘No’. But the Earl’s case could have provided some clear guidance on the issues.

His barrister, Nicholas Mostyn QC, certainly seemed to think his client’s privacy rights remained intact, even though reporters were present in court.

He told Mr Justice Munby: “These parties have a reasonable expectation of privacy.”

Lewis Marks QC, for the Countess, added: “There is no public interest in the outcome of this case.”

On the other hand, once the judge had confirmed that reporters would be allowed in, neither of the litigants appeared to have felt confident about pressing ahead in court and simply trusting that none of the personal information would be lawfully reportable due to it being private.

Both were expected to apply last Wednesday for a privacy injunction to restrict reporting of certain aspects of the hearing, which would have provided a helpful steer on the balance to be struck between the litigants’ privacy rights and the media’s right to freedom of expression.

But in a surprise twist, they actually secured an adjournment and a consent order with a view to the matter being resolved privately without further input from the court.

The media are left speculating over various potential scenarios that could prevail in such cases.

First, a court might take the view that all information in adult-only family cases that are heard ‘in private’, with reporters present, is no longer genuinely private and refuse to impose any reporting restrictions whatsoever. That would make for hazard-free reporting.

Second, a court might decide on a case by case basis that certain aspects of ‘in private’ divorce settlement hearings remain essentially private despite the presence of reporters, and impose tailored privacy injunctions when requested. Opposing, monitoring, and complying with such orders would tend to make reporting such cases an expensive and complicated luxury.

Third, litigants might choose to side-step the lottery of judicial whims and take their dispute out of court, as Earl Spencer did. But if out-of-court justice is the new destination for family law, the new access rules will have failed on a variety of fronts.

It is already clear that the media’s new right of access to the vast majority of family cases which involve children is stymied by the automatic reporting restrictions in Section 12 of the Administration of Justice Act 1960, Section 97 of the Children Act 1989 and Section 101 of the Children and Adoption Act 2002.

In child-related cases, what goes on in court may not even be reported on an anonymised basis, without special permission from the court.

Last week’s signal that adults litigating over matrimonial finances may also take their disputes below the radar is a disappointing setback for open justice in the family courts.