Family

Appleton v Gallagher: Family Division: 28 September 2015

The proceedings concerned the ability of the press to report ancillary relief proceedings that it was allowed to attend. The parties to the proceedings had been married and had one child together. The father also had three other children.

The parties, who were famous, had been granted a divorce. In a subsequent ancillary relief hearing at the Family Court, both parties applied for an order excluding the press, pursuant to rule 27.11(3) of the Family Procedure Rules, SI 2010/2955 (the rules).

An issue arose as to whether only the High Court could make a reporting restriction order in the present case. The matter came before the Family Division for consideration. The following day, a judge in the Family Division granted an injunction, restricting the reporting by the press of the ancillary relief proceedings between the parties (the order). Paragraph (a) of the order allowed the parties to be named, but no one else. Paragraph (b) of the order restricted reporting of the parties’ financial information. The Family Division further considered reporting restrictions in respect of the case.

The issue for consideration was whether the order should be lifted or modified at the present stage. Consideration was given to rules 25.2(1) and 27.11(3) of the rules, Practice Direction 27B (PD 27B), and to Practice Direction 12I (PD 12I), the latter of which provided that only the High Court could make orders restricting the publication of information about children or incapacitated adults.

The court ruled: the terms of rule 27.11(3) of the rules and of PD 27B made clear that the power to exclude was vested in the court of trial. A court of trial had full power to make a reporting restriction order in proceedings which were not ‘children proceedings’, within the terms of rule 25.2(1) of the rules. The only financial remedy proceedings which qualified as children proceedings were those which related wholly or mainly to the maintenance of upbringing of a minor. Children proceedings fell squarely within PD 12I and so any reporting restriction order in such proceedings could only be made by the High Court.

Otherwise, the court of trial was fully vested with the power to control the reporting of the proceedings before it. Information compulsorily extracted by one party from the other was subject to an implied undertaking that it would not be published or used for any purpose other than the proceedings.

The change in the rule that proceedings for ancillary relief were to be heard in chambers, attended only by the parties or their representatives, was not intended to abrogate the core privacy provided by the implied undertaking and the hearing of the proceedings in chambers. In ancillary relief proceedings, the press had to justify why the core privacy, maintained and endorsed by parliament, should be breached. If the parties were well-known, the press had to be able to identify them and the fact that they were engaged in ancillary relief proceedings.

The name of the case would be publicly published in the cause list, and the parties would be seen by the public arriving and leaving court. The fact of the divorce and of the impending ancillary relief might well have been the subject of press reports. On the other hand, if the parties were not well known, an order for anonymisation should readily be granted (see [2], [4], [9], [12], [16], [25] of the judgment).

In the present case, the fact of the divorce and of the impending ancillary relief had been the subject of press reports. Therefore, it would be absurd to ban publication by the press of those facts. Paragraph (a) of the order had not been very happily drafted as it allowed the parties to be named, but no-one else, which was unreal given the press comment on the marriage and its collapse thus far. There was no reason why the press should not be able to name, not only the parties, but also their partners, past and present. Those names were to be found all over the internet. The children’s names were also to be found there, but in the context of the reporting of the case, it would be contrary to their interests for them to be named. The real question was whether para (b) of the order should be continued, modified or revoked. At present, it was strictly confined to financial information. The present case was not one where the parties had manipulatively invoked the press to fight their causes. Nor was it a case where there had been previous proceedings in open court where a lot of financial material had been aired. Most of the financial information would have been compulsorily extracted and was subject to the implied undertaking, which was the bedrock of the right to privacy, and which collaterally bound the observing journalists. There was no good reason to release them from its effect (see [25]-[27] of the judgment).

The order would continue for the time being, save that paragraph (a) of the order would be replaced by an order preventing the naming of the children (see [26], [27] of the judgment).

Clibbery v Allan [2002] 1 All ER 865 applied; Lykiardopulo v Lykiardopulo [2010] All ER (D) 225 (Nov) applied; Cooper-Hohn v Hohn [2014] All ER (D) 252 (Jul) not followed; Blunkett v Quinn [2004] All ER (D) 49 (Dec) considered; X (a child) (residence and contact: rights of media attendance), Re [2009] All ER (D) 361 (Jul) considered; Young v Young [2013] All ER (D) 313 (Nov) considered; DL v SL [2015] All ER (D) 114 (Sep) considered.