Financial remedy rulings should remain anonymous, say UK judges' committee
The group, chaired by Farquhar HHJ, included all levels of first instance judiciary, solicitors, barristers, a legal blogger and a press reporter. Its report notes that there is a 'large level of misunderstanding' on the current position regarding transparency in financial remedy cases.
This has resulted from certain judgments issued by Mostyn J in 2022, in which he held that it is wrong in law for parties in the Financial Remedies Court (FRC) to remain anonymous. Allowing anonymity as a matter of general practice rather than as an exception would require a change in law, said Mostyn in Gallagher v Gallagher No.1 (2022 EWFC 52). Donal Gallagher had applied for a reporting restriction order, arguing that allowing his name to be revealed would affect his commercial interests, but Mostyn refused it because granting the order would, he said, be a derogation from the principle of open justice.
The effect of Mostyn's dictum in Gallagher and other cases has been that transparency in financial remedy cases was the single most controversial matter facing Farquhar's committee. According to its report, most other judges in the England and Wales High Court that regularly deal with FRC work still considered that parties should retain their anonymity, although they did not set out a legal basis for doing so. 'This has created an uncertainty, and it is difficult for judges below High Court level as well as practitioners to understand the present legal position', said the report. A survey of almost 600 stakeholders performed in June/July 2022 found over three-quarters of respondents in favour of anonymisation, the number rising to 82 per cent among the 128 solicitor and barrister respondents who dealt with big-money cases.
The committee also conducted review of practices in other common-law jurisdictions around the world, finding considerable differences among them, ranging from routine total anonymisation to full public access to court papers.
'We acknowledge that there are different approaches to certain issues by different judges at High Court level and that this is far from ideal', said Farquhar in his introduction to the report. Mostyn himself now routinely does not anonymise reported decisions, for example in the big-money case of Collardeau-Fuchs v Fuchs in February 2022. But none of the other judges at that level appear to have followed suit, save in unusual circumstances or where there has been a prior absence of anonymity for various reasons including past appeals. The lead FR judge, Peel J, has been the most prolific publisher of judgments, and all have been anonymised. For example the ‘big money’ case of MG v GM (Rev 1) of March 2022. 'Both cases were essentially dealing with the same law, the same (or similar in general terms) scale of wealth, and yet one set of parties was afforded different publication protections to the other', says the Farquhar report.
Its conclusion is that the open justice principle is of very significant importance; however, a balance needs to be struck where that comes into irreconcilable tension with the particular considerations of financial remedy proceedings. Where the naming of parties could lead to driving them into less open arbitration proceedings or similar, the aim of greater transparency may achieve the opposite effect. Equally so, any de facto curtailment of access to justice, especially for those ‘less well off’.
The starting point, it said, should be general anonymisation of reporting by the media or in the form of final judgments on public websites. The only secrecy would be in respect of the actual name of the particular litigants and similarly identifying information, which are 'details which lend little or nothing to the greater understanding of the case, or the public interest in scrutiny of the system from which it emanates.'
- The 164-page report also deals with the manner in which cases are listed; who should be able to attend hearings; which documents if any should be made available to reporters and the publication of judgments. It also addresses out-of-court settlements, the harvesting of statistical information from D81 forms and appeals.
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