Weekly Family Law Update June 1, 2022

Your financial remedies case may not be kept private

Financial remedy proceedings, in which the court is asked to decide the divorce settlement, will by their nature involve the disclosure of details of the parties’ financial arrangements. Such matters are normally of course kept private, but a recent decision by a High Court judge may mean that privacy in financial remedy proceedings may no longer be the norm.

Anonymised judgments

The judgments in important financial remedy cases may be published. When this happens, the parties may request the court to ‘anonymise’ the judgment by removing their names, thereby keeping their financial affairs private.

And in recent times the court has usually agreed to the judgment being anonymised. It has been calculated that this has occurred in about three-quarters of all published judgments over the last twenty years or so.

But last November High Court judge Mr Justice Mostyn, who regularly hears financial remedy cases, indicated that in future his ‘default position’ would be not to anonymise his financial remedy judgments, save that any children involved would continue to be granted anonymity.

Mr Justice Mostyn went on to say that: “Derogation from this principle will need to be distinctly justified by reference to specific facts, rather than by reliance on generalisations.” In other words, the mere fact that a financial remedies judgment may contain private and sensitive matters does not of itself justify anonymisation.

On-going debate

This decision has led to an on-going debate as to whether this should be the default position for all judges, in all cases.

The former President of the Family Division Sir James Munby has indicated his support for Mr Justice Mostyn’s position. He has said that anonymisation must be a matter of principle, not sentiment – it is not as if the right of the parties in a financial remedy case to respect for their private life is somehow qualitatively different from that of the parties in, say, a family dispute about the ownership of a company or the distribution of an estate. Many types of civil litigation involve intrusion into the parties’ private lives, yet judgments in those cases are almost invariably given without anonymisation.

However, an eminent QC has argued against this being the ‘default position’. He points out that a litigant’s right to respect for their privacy is an important right, enshrined by statute (i.e. the Human Rights Act). They have a reasonable expectation that their private information, obtained under compulsion, will not be made public.

However, that right to privacy, he says, must be balanced against the principles of open justice and freedom of expression. He accepts that the practice of routinely anonymising financial remedy judgments without conducting that balancing exercise seems to be unlawful.

In many cases, he states, “the long-established practice of anonymisation will, in fact, strike the right balance between the competing interests. In other cases, anonymisation may not be appropriate, but that is not to say that private information should not be protected in some other way, for example, by [removing sensitive information from] a judgment. Unless there are special circumstances, it would not generally be a proportionate judgment to give no effect whatsoever to the litigants’ right to respect for their privacy.”

In short, he argues that the court must approach the decision as to whether to anonymise a judgment without there being a presumption either way, whether in favour of open justice, or in favour of privacy. This would obviously likely result in many more cases being anonymised than under Mr Justice Mostyn’s ‘default position’.

Keep it out of court

Quite where all of this will lead remains to be seen. If your case goes before Mr Justice Mostyn it appears that your privacy may not be respected, but whether other judges will follow his lead is not at all clear.

What is clear, however, is that the best way to ensure that your financial affairs are kept private is to keep your case out of court.