Through a glass, darkly: Gallagher and transparency in the financial remedies court

Abstract

There has been much recent debate about whether parties in family cases should be identified in published judgments and media reports. In an important contribution to the debate, Mostyn J surveys the legal position in his judgment in Gallagher v Gallagher (No.1) (Reporting Restrictions) [2022] EWFC 52 and sets out the approach that should be taken to the reporting of financial remedies proceedings. Financial remedies proceedings are conducted in private by virtue of FPR 17.10–11. Journalists and accredited legal bloggers can attend hearings unless excluded for the reasons set out in FPR 27.11 (described by Holman J in Fields v Fields [2015] EWHC 1670 as ‘strict and limited exceptions’). However, attendance and publication are not the same thing. Whether the hearing is in open court or in private, publication of information relating to it may be caught by s12 Administration of Justice Act 1960, which sets out the circumstances in which publication would constitute contempt. Financial remedy cases do not fall within s12 ʹ s contempt provisions unless they relate wholly or mainly to the maintenance of a minor, or because the person publishing the information is doing so contrary to a reporting restriction order or anonymity order made in that particular case. Mostyn J therefore concluded in Xanthopoulos v Rakshina [2022] EWFC that with the exception of these two situations, financial remedy cases could be reported and – as long as they do not misuse confidential information – freely discussed by the parties. The fact of a court sitting in private did no more than limit who could be present at the hearing. The court could make a reporting restriction order (RRO) or anonymity order, certainly, but only if the court had first, as in Re S [2004] UKHL 47, carefully weighed the rights engaged – Article 8 ʹ s privacy but also autonomy, including the right to tell one’s own story; Article 10 ʹ s freedom of expression; and (not at issue in Re S itself) Article 6 ʹ s fair and public hearing.