Mr Justice Mostyn, the lead judge of the Family Remedies Court, has insisted that a wealthy divorcing couple should be named – and said this will be his ‘last judgment’ on the subject of anonymity in the family court.
The husband in Gallagher v Gallagher (No.1) (Reporting Restrictions) had applied for a reporting restriction order or anonymity order, arguing that allowing his name to be revealed following the multi-million-pound litigation would affect his commercial interests.
But the judge said the orders, if granted, would constitute a derogation from the principle of open justice. He went further, decrying the standard anonymisation of parties in divorce cases and saying that only an act of parliament could change the current landscape.
The judge said: ‘Although the House of Lords in Scott v Scott definitively decided that a matrimonial case heard and decided in private gave rise to no secrecy about its facts, a general practice to the opposite effect has arisen… That general practice is currently reflected in the standard rubric and the routine anonymisation of judgments. ‘It is my opinion that the general practice is completely at odds with the correct interpretation of [family procedure rules] and with the binding authority of Scott v Scott. In my opinion the correct interpretation of those rules, in the light of that authority, must lead to the conclusion that the standardised anonymisation of judgments is unlawful.’
Mostyn noted the suggestion that the family procedure rule committee could change its rules to say that where a financial remedy judgment is to be published, the names of parties and their children should not be included. But the judge said the committee could not enlarge the substantive law of contempt, so creating a scheme providing for standard anonymisation ‘will require primary legislation’.
The judge rejected arguments that family proceedings held in private should necessarily lead to restrictions on reporting. The only legal consequence of a private hearing was that members of the public could not physically attend, but ‘otherwise, in terms of openness, the proceedings are virtually identical to those heard in open court’.
In Gallagher the husband’s lawyers had tried to argue that an anoymised judgment would achieve sufficient transparency, but this too was rejected by the judge, who added: ‘If very rich businessmen are in court fighting at vast expense with their ex-spouses over millions, then the public has the right to know who they are and what they are fighting about.’
It was also submitted that lifting reporting restrictions in the family court would effectively allow litigants to blackmail the other party to settle before a public hearing. The judge said the principle of open justice could not be put aside by ‘anecdotal gossip about the motives of some litigants’ and added that if this practice were common in litigation then ‘generally the civil courts would be empty. And they are not’.
Restrictions were placed on the identification of the couple’s children and the reporting of legal advice given to the husband.
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