More on media reporting of private court proceedings

The law on media reporting of private proceedings continues to develop with the judgment of the Court of Appeal in Re W [2016] EWCA Civ 113. The decision arises out of the care proceedings that followed the death of 13-month old Poppi Worthington which attracted very high levels of public interest and media coverage.

In November 2015, the trial judge (Jackson J) had made various orders allowing for publicity and media attendance at an upcoming fact finding hearing.  These included permission for daily reporting of that hearing, something all parties and judges agreed was very unusual.  These orders were promptly appealed to the Court of Appeal which announced at the time that the appeal would only be allowed to a very limited extent, with its reasoned judgment to follow.  That judgment has now been published and is available here.

The key points from the judgment of McFarlane LJ (which whom Macur and King LJJ agreed) can be summarised as follows: Continue reading

Expectations of privacy abroad

As all celebrities know, to get the High Court to stop paparazzi pictures of you from being published, the first thing you have to do is show you had a reasonable expectation of privacy.  But what if you were snapped outside of the jurisdiction and whilst English law principles suggest that you did have such an expectation, the local law where the photographs were taken says you do not?

The answer given by the Court of Appeal in Weller v Associated Newspapers [2015] EWCA Civ 1176 is that the local law is not determinative and the weight to be given to it is a matter for the judge. Continue reading

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


Impact of FOIA on legal professional privilege

An intriguing summary has emerged on Lawtel (subscription required) of a decision of the Chancery Division (John Jarvis QC) in a case called Hallows v Wilson Barca LLP, which suggests that the duties imposed on public bodies by the Freedom of Information Act 2000 (FOIA) can be relevant to the common law doctrine of legal professional privilege.

The decision appears to hold that lawyers who obtain documents from public bodies for the purpose of litigation (which would therefore normally be protected by litigation privilege) need to bear in mind the existence of FOIA and make that purpose clear otherwise they will be taken to have waived privilege.  Whether, on close inspection of the full judgment, this turns out to be a true description of the ratio decidendi remains to be seen, the case seems worth noting in any event.

The issue arose in the context of a claim brought by the claimant (C) against the solicitors (D) who had acted for him to register title to a plot of land.  C alleged that D had failed to register the fact that the land benefitted from certain rights of way which would materially affect the value of any development on the land.  C’s new solicitors in that claim (S) sought the advice from the local planning authority (LPA) on whether planning permission would be likely to be granted for any development on the land.

In making the request, S said it was doing so on a confidential basis, but did not mention it was being made in connection with the litigation between C and D.  The LPA provided the advice sought, which subsequently found its way into D’s hands via a FOIA request by D.  C sought an injunction restraining D’s use of that information in the proceedings between them on the basis that it was legally privileged.

The court agreed that the advice was prima facie protected by litigation privilege but said that requesters like S had to bear in mind that the LPA was subject to duties imposed by FOIA to provide information to the public.  Since no indication had been given that the advice was sought in the context of litigation, the court said that S had accepted that the information could come into the public domain by virtue of the local authority’s duties under FOIA and had therefore necessarily and impliedly waived any privilege which had existed.

In the alternative, the court said that even if it had accepted that privilege could still be maintained, it would not have been appropriate to restrain D from relying on the advice.  The way in which S sought advice was said to have run the risk that any privilege would be waived and D had also not acted improperly in making the request it did under FOIA or in reading the information once it had received it.

As noted above, the full analysis and implications may only become apparent if and when the full judgment becomes available and this was of course a decision in the context of private law proceedings rather than under FOIA.  Nonetheless, legal professional privilege is a common law doctrine and, unlike FOIA, is absolute in the protection it affords against disclosure.  The suggestion that the Act could influence the common law in this way is a very interesting one.

In practical terms, for those involved in planning law the decision sits alongside the decision in Tidman v Reading BC [1994] 3 PLR 72 (that LPAs do not owe a duty of care in providing such advice) as another important point for those making such requests to bear in mind.

Paul Greatorex