Although the direction of travel is towards greater transparency in family proceedings, the recent judgment of Mr Justice Mostyn in XZ v YZ [2022] EWFC 49 illustrates that an interim reporting restrictions order is still possible. Such an order might be appropriate where the merits of a reporting restrictions order are not clear without the court having first heard the evidence in the case.
Background
The husband (H) made an application for either:
A reporting restrictions order preventing the disclosure of any private and commercially sensitive material; or An anonymity order preventing the identification of the parties to the proceedings, their children and H’s business interests.
The husband’s position was put slightly differently in his counsel’s written submissions and draft order attached to his application. However, in principle, it was clear that some form of reporting restrictions order/anonymisation was sought.
The law
Having given a warning in A v M [2021] EWFC 89 that he saw no reason for financial remedies cases to attract anonymity, Mr Justice Mostyn confirmed in Xanthopoulos v Rakshina [2022] EWFC 30 that, in his view, this was the correct approach.
Mr Justice Mostyn’s judgment refers to these cases and explains that anonymisation should be specifically imposed by the court and should not be directed in an “off-the-cuff”, systematic manner. In his view, the default position should be open justice, meaning litigants ought to be named. In deciding whether to impose anonymisation, the court should conduct the “ultimate balancing test”, as set out by Lord Steyn in Re S (A child) (Identification: Restrictions on Publication) [2005] 1 AC 593. This is the balance to be struck between an individual’s right to privacy under Article 8 of the European Convention on Human Rights and the principle of open justice in Article 6, together with the general article 10 rights of the public at large.
The ultimate balancing test
H advanced a number of points in his application, and Mr Justice Mostyn said there appeared to be some merit in his submissions (which were unopposed by the wife). However, there were two unknowns in that:
- It was not clear to what extent the oral evidence/submissions in the case would disclose matters that could adversely prejudice H and related third parties. This is something that could only be clear having heard the evidence; and
- It was not clear to what extent the Press Association might oppose H’s application. This would only become clear once the press had attended the hearing and heard evidence and submissions.
Mr Justice Mostyn considered these factors as against the decision in Re S. He said it was implied within this decision that the court could make a temporary or interim reporting restrictions order where it does not have full evidence and therefore cannot perform the complete balancing exercise. Such an order would last only until the court is in a position to deal with the matter “substantively, justly and fairly”.
Partner Carly Kinch commented:
“This case illustrates that despite the move to greater transparency, it may be appropriate for the court to make an interim reporting restrictions order pending the conclusion of a hearing with the expectation that the matter will be revisited at that stage when the full balancing exercise can be properly conducted. Consideration should therefore be given when making any application as to whether it might be prudent to also make an early request for interim reporting restrictions.”
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