Media Access to the Family Court

The private lives of the rich and famous are almost inevitably newsworthy, however whilst such individuals often positively welcome press attention to their working lives, they understandably feel that they are entitled to privacy in their private lives

On 15 September 2015, Nicholas Mostyn in his capacity as a Judge in the Family Division of the High Court, made an interim order in response to a referral to him from His Honour Judge O’Dwyer. Judge O’Dwyer’s referral of the matter to Nichols Mostyn was prompted by a joint application made by Nicole Appleton and Liam Gallagher that morning, for the press to be excluded from their final hearing on matrimonial financial issues: The terms of Nicholas Mostyn ‘s interim order were:-

• That the press could name the parties, their solicitors and their advocates;
• That the press could photograph the parties as they arrived at and left Court;
• That the media were prohibited from publishing any information on the parties’ finances whether of a personal or business nature, including but not limited to that contained in their voluntary disclosure, answers to questionnaires provided in solicitors’ correspondence, their witness statement, their oral evidence, save to the extent that such information was already in the public domain;

He indicated that the matter would be reconsidered by him on 22 September 2015 with a view to making a final decision because of insufficient time to consider the detailed submissions of the legal representatives of the parties and Counsel for NGN (the publishers of The Sun newspaper).

At the later substantive consideration of the arguments on 22 September, Brian Farmer of the Press Association also addressed Nicholas Mostyn in support of the greater latitude sought by the press.

Before 27 April 2009, family proceedings of this kind were always held entirely in private, but with the Family Proceedings Rules 2010 coming into force on that date, the press may now be physically present in the chambers of a Judge. However, the press is debarred from having any access to the relevant documents which are of course of material significance in legal proceedings of this kind. One must also make the point that a distinction is made between the proceedings themselves, and the final Judgment. A trial judge has the power to restrict the publication of the Judgment and indeed insist that names may be excluded (that is redacted).

In matrimonial financial proceedings there always has been a core principle of privacy, the change in the Family Proceedings Rules permitting press presence in the court room, does on the face of it sit uneasily with this principle. However when Nicholas Mostyn reconsidered his earlier interim order on 22 September 2015 his conclusions on what the press could and could not report were so restrictive, that unless his decision is successfully appealed in a higher court, famous litigants need have no fear that their privacy will be seriously infringed.

Nicholas Mostyn’s indication was that the presence of the press was not designed to encourage wholesale reporting of every detail of such financial proceedings, what parliament intended was a “watchdog’ role for the press. His approach was that the press is obliged to justify why the principle of core privacy maintained and endorsed by Parliament should be overridden.

However, he did identify circumstances where less restrictive press coverage would be justified. That is first in what he described as the “McCartney situation” this being that where a great deal of material is already in the public domain, but some of that material is wholly inaccurate, it is right to make a Judgment public in order that misconceptions are corrected.

Second, if there was proof of significant misconduct by one party (described as ‘inequity’) then the delinquent party should lose the benefit of anonymity and privacy in their family proceedings.

He observed that it would be much more difficult to conceive of a situation where a blow by blow account of matrimonial proceedings could be justified. But, one such example may be where the parties had courted press attention about their marital collapse and thereby impliedly waived their right to privacy.

To revert to the specific facts of the case of Nicole Appleton and Liam Gallagher:

• Nicholas Mostyn permitted publication of facts which were already in the public domain.
• He did not consider that either party had tried to recruit the press to their opinion.
• There were no press misconceptions which needed to be corrected therefore impliedly any reporting of the proceedings for that corrective reason were unnecessary;
• His Honour Judge O’Dwyer would retain full authority on whether his judgment was made public and whether there would be any redaction.

To conclude, the physical presence of the press in family proceedings is still fettered by restrictions designed to protect privacy to a significant degree.

Bik Wong

Hubbard Pegman and Whitney LLP