Should financial proceedings be heard in open court?

Many clients are understandably aghast at the prospect that the details of their personal finances could be heard in open court.  So what is the legal position on this?  Why are some cases reported in the newspapers and some not?

In the recent case of DL v SL [2015] EWHC 2621,  Mr Justice Mostyn  considered whether the Family Procedure Rules (FPR) provide a presumption that financial remedy proceedings should be heard in private.  The judge found that this presumption should be upheld unless there is a compelling reason to do so and he relied on FPR 29.12 which provides that the documents on the court file may not be read by any person, save for orders made in open court, unless the court gives express permission. He went on to make an order prohibiting the media from publishing any report of the case that identified any person involved in the case other than the lawyers, or referring to any of the parties’ financial information, whether of a personal or business nature, save to the extent that any such information was already in the public domain.

Mr Justice Mostyn’s view is not shared by all his fellow High Court judges.  Mr Justice Holman regularly orders that financial remedy cases listed before him will be conducted in open court – i.e. with no reporting restrictions. The argument for allowing the media to report is to achieve more transparency and to ensure fairness. Moreover it is said that this approach will help to educate the public about the operation of the court.

The FPR are far from clear on this issue.  Contrary to Mr Justice Mostyn’s view, it can be argued that FPR 27.10 does not contain any presumption that financial remedy proceedings should be heard in private.  Rather, that is simply a starting point. In the case of Luckwell v Limata [2014] EWHC 502  Mr Justice Holman decided that whether a case should or should not be heard in private is entirely in the court’s discretion.  He inclines to the view that if the parties have the threat of their case being heard in public, they are more likely to settle out of court.

Mr Justice Mostyn has called for the Court of Appeal to consider this divergence of opinion and devise appropriate guidance.

If you have any queries about this article please contact jonesnickolds on 0203 405 2300 or contact@jonesnickolds.co.uk