What can journalists report about private court proceedings they attend? Trying to sort out the mess

Former rock ‘n’ roll star Liam Gallagher and former pop star Nicole Appleton were married with children and seemed rock steady as a couple but sadly are now getting divorced and left wondering “where did it all go wrong?”  Whatever, some might say, stop crying your heart out about water under the bridge and just roll with it – this is a serious blog whose readers would never ever expect to find stories about celebrity gossip, still less a list of Oasis and All Saints song titles masquerading as a post about information law.

But don’t go away, because the judgment of of Mostyn J in Appleton v Gallagher [2015] EWHC 2689 (Fam) is an interesting one about the very important issue of what the press can report about private court proceedings.  Little by little, closed family proceedings are opening up: changes to the Family Procedure Rules made in 2009 permitted journalists to attend private court hearings in the Family Division.  The court can make an order excluding them, but only after considering lesser measures such as a reporting restriction order.

In the present case, journalists from the Sun and other newspapers (possibly including the Hindu Times, the judgment does not say) wanted to attend and report on Mr Gallagher and Ms Appleton’s ancillary relief proceedings; Mr G and Ms A wanted to have the press excluded.  For procedural reasons it fell to Mostyn J to decide whether reporting restrictions should be imposed before a separate judge decided whether the press should be excluded altogether.

Confused?  According to Mostyn J at [6], it is an understatement to say that the law in this area is a mess.

As the judge said at at [9], although section 12 of the Administration of Justice Act 1960 explicitly provides that the reporting of proceedings held in private (except for those which wholly or mainly concern children) is not a contempt of court, such reporting is nonetheless prohibited as a result the implied undertaking that attaches to disclosed information.  In the context of private ancillary relief proceedings where there is an obligation to make full and frank disclosure of all financial information that goes far wider than the duty of disclosure in an ordinary civil dispute, the courts have been particularly strict in enforcing this.  As stated by Thorpe LJ in Clibbery v Allen (No 2)[2002] EWCA Civ45, “all the evidence (whether written, oral or disclosed documents) and all the pronouncements of the court are prohibited from reporting and from ulterior use unless derived from any part of the proceedings conducted in open court or otherwise released by the judge.”

The submission on behalf of the press (described by Mostyn J as “very bold”) was that this position is now different as a result of the 2009 rule change.  Mostyn J rejected this saying the purpose of this “was to enable the world to understand how children proceedings, especially public law care proceedings, were conducted”, and referred to what was said in Re Child X (Residence & Contact – Rights of Media Attendance) [2009] EWHC 1728 (Fam) about it enabling the media to exercise a role as “watchdog” on the part of the public at large.  It was not, however, “intended to abrogate [the] core privacy provided by the implied undertaking and the hearing of the proceedings in chambers”, a privacy which he said has been “maintained and endorsed” by Parliament.

In the alternative, the judge said that even if the matter was one of an ordinary balancing exercise, this came down in favour of not allowing reporting, highlighting: (a) the fact that neither party had sought to “yoke the press to his or her cause” or spoken about the divorce and (b) press comments thus far had been limited and there had not been extensive inaccurate speculation.

Some might say [you’ve done this one already – Ed] this judgment will surely be overtaken soon by a comprehensive reconsideration of the law by the Court of Appeal, something urged by Mostyn J at the conclusion of his judgment when he granted permission to appeal.  As such, it remains to be seen whether this judgment will live forever or just slide away [That’s enough – Ed.].

Paul Greatorex