This judgment was delivered in
private. The judge has given leave for this version of the judgment to be
published on condition that (irrespective of what is contained in the judgment)
in any published version of the judgment the anonymity of the parties and
members of their family must be strictly preserved. All persons, including
representatives of the media, must ensure that this condition is strictly
complied with. Failure to do so will be a contempt of court.
MR JUSTICE BAKER :
1. On
21 December 2017, I handed down a judgment in these proceedings on the
application by the petitioner (hereafter referred to as “the wife”) for a
financial remedies order in divorce proceedings against the respondent
(hereafter referred to as “the husband”). On 26 February 2018, I made an order
consequential to my judgment. I understand that the wife has now filed a notice
of appeal against my judgment and order.
2. This
judgment deals with a subsidiary issue following on from the hearing and
judgment, namely separate applications by the parties for a reporting
restrictions order precluding publication of information relating to the
proceedings.
3. The
full background to the case is set out in my earlier judgment and need not be
repeated. It is sufficient to say that the parties come from different foreign
countries but have lived in England for many years; that they were married in
2008 and have one son who has significant health and developmental problems;
that following the breakdown of their marriage in 2015 the wife petitioned for
divorce, and that she pursued an application for financial remedies within
those proceedings culminating in the judgment and order referred to above.
Their story is therefore typical of countless other couples whose cases come
before the family court. What makes their case unusual is that the husband is
an extremely successful businessman. Although he is not himself a well-known
public figure, his products are widely used by millions of people across the
world. Representatives of the press have therefore appeared before me opposing
the making of a reporting restrictions order. It is said on behalf of the press
that it is in the public interest for them to be at liberty to report
information about the proceedings.
The Law
4. The
law relating to reporting restrictions and the publication of judgments in
matrimonial financial remedy proceedings has been considered in a number of
recent reported cases. It is well known that there is a divergence of views
amongst judges of the Family Division about whether applications for financial
remedy orders should be heard in open court (see the discussion in DL v
SL (Financial Remedy Proceedings: Privacy) [2015] EWHC 2621 (Fam)). In
their written submissions in support of their applications for a reporting
restrictions order, counsel for the husband and wife have referred to a large
number of reported authorities. In my judgment, however, it is neither
necessary nor appropriate to embark upon a further lengthy analysis of the law
in this judgment. The principles as generally accepted by judges and
practitioners can be summarised as follows.
(1) Open justice is a
fundamental principle of our constitution. The general rule is that hearings
are carried out, and judgments delivered, in public. This fundamental
principle, set out by the House of Lords in Scott v Scott [1913] AC 417, has been reiterated on numerous occasions.
(2) There are, however,
established exceptions to this general rule. Amongst those exceptions are proceedings
in the family court. Such proceedings, including those concerning applications
for financial remedies orders, are usually conducted in private: Family
Procedure Rules (“FPR”) rule 27.10.
(3) The mere fact that
proceedings are heard in private does not of itself prohibit publication of
what happens in those proceedings: Administration of Justice Act 1960, Clibbery
v Allen [2002] Fam 261 paras 17 and 51; Norman v Norman
[2017] EWCA Civ 49.
(4) In financial remedy
proceedings, however, there is an obligation on the litigants to give full and
frank disclosure of all relevant matters. The quid pro quo of this obligation
is the confidentiality which attaches to all information disclosed within the
proceedings. The party receiving the confidential information is subject to an
implied undertaking not to use it for any purpose other than within the
proceedings in which the information has been disclosed. “Information disclosed
under the compulsion of ancillary relief proceedings is … protected by the
implied undertaking before, during and after the proceedings are completed” (per
Butler-Sloss P in Clibbery v Allen, supra, para 72).
(5) Any disclosure by a
party of information arising from financial proceedings amounts to a breach of
confidence and a contempt of court unless authorised by the judge.
(6) In deciding whether to
restrict or permit disclosure or publication of information relating to
financial remedy proceedings, and, if so, on what terms, the court has to
balance the conflicting rights and interests under ECHR, in particular articles
6, 8 and 10, applying the well-established principles identified in the case
law, in particular Re S (Identification: Restrictions on Publication)
[2005] 1 AC 593. Importantly, the article 8 rights to be balanced include those
of the children to the marriage as well as the parties themselves: K v L
[2011] EWCA Civ 550, [2012] WLR 306 at para 26.
(7) The same principles
apply to the publication of judgments in financial remedy proceedings. But, as
Thorpe LJ acknowledged in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 at para 33:
“a distinction can be validly
drawn between the privacy of the hearing and the privacy of the judgment. A
judgment considering a point of law or practice has generally been released to
the specialist series of law reports. There have been many first instance
judgments so reported in addition to appellate decisions selected by the
reporters. Without this collaboration between the judiciary and the reports
evolution of ancillary relief law and practice by the judges would hardly have
been possible.”
Thus in cases where there is a
public interest in the publication of the judgment which explains or
illustrates an aspect of the law or practice, the judge will normally give
permission for it to be reported, but subject to anonymisation and redaction of
sensitive or confidential information.
(8) In some cases, the
judge may authorise publication of the judgment without anonymisation or
redaction – for example, where a party has provided false information to the
court (for example, the Lykiardopulo case, supra), or where the
parties are in the public eye and the details of the matrimonial dispute are
already in the public domain (for example, McCartney v Mills McCartney [2008] EWHC 401 (Fam)). In other cases where the parties are in the public eye, but
the details of the dispute are not in the public domain, the court may
authorise publication of the fact that they are engaged in litigation but
restrain publication of detailed information relating to the proceedings (for
example, Appleton v Gallagher [2015] EWHC 2689 (Fam)).
(9) Although in most
cases, confidentiality can be protected by publishing judgments in an anonymised
and redacted form, there are some rare cases where the factual matrix is unique
or so unusual that confidentiality can only be protected by withholding the
judgment from publication altogether. One example is the judgment in the
so-called “Scottish case” delivered by Mostyn J which has never been published
but was subsequently cited by the same judge in WM v HM (Financial
Remedies: Sharing Principle: Special Contributions) [2017] EWFC 25. As Mostyn
J explained in the latter case at para 110,
“I have not given leave for that
decision to be reported as the case is incapable of camouflage and were its
details to be reported there may be adverse economic consequences.”
(10) The
principles set out above are unaffected by the change in the rules incorporated
in FPR r.27(11)(2)(f) and Practice Direction 27B, under which duly accredited
representatives of news gathering and reporting organisations are permitted to
attend hearings in the family court unless the judge orders otherwise. I
respectfully agree with the observations made by Mostyn J in Appleton v
Gallagher, supra, at paras 12 to 14, DL v SL, supra, para
1, and again in L v L [2015] EWHC 2621 (Fam) [2016] 1 WLR 1259 at para 1 that, whilst accredited representatives of the press may be
present at the hearing, they are not permitted to report confidential and
private information disclosed into the proceedings. It is fair to say, however,
that there is some disagreement amongst judges and practitioners on this issue,
and as a result the courts are not infrequently invited by the parties to
financial remedy proceedings to make a reporting restrictions order.
The
argument
5. In this
case the husband and wife have each filed an application for a reporting
restrictions order. The husband’s principal argument is that this case is
“incapable of camouflage” and that the court should therefore withhold the judgment
from publication altogether. In the alternative, he proposes that the judgment
be anonymised and significantly redacted, and that the court makes a reporting
restrictions order preventing publication of any other information relating to
the proceedings. The wife is said to be neutral on the question of whether the judgment
should be withheld from publication altogether, but strongly supports the
anonymisation and redaction of the judgment if published, and the making of a
reporting restrictions order. The parties have reached a measure of agreement
as to some of the details of the anonymisation and redaction, but there is a
number of details about which they do not agree and invite me to resolve, in
the event that I reject the husband’s principal argument that publication
should be withheld altogether.
6. The
application for a reporting restrictions order is opposed by the media.
Although no news organisation was legally represented before me, I had the
benefit of written and oral submissions from Mr Brian Farmer of the Press
Association. As always, the court is extremely grateful to Mr Farmer for his
courteous and insightful observations.
7. On
behalf of the husband, it is submitted that this case falls into the same
category as Mostyn J’s “Scottish case”. It is submitted that the background
history of the family, and in particular the story of the husband’s company, is
unique and so widely known and publicly available that there is a strong
likelihood that confidentiality would be lost through the process known as
“jigsaw identification”, meaning that those who read the judgment, however
carefully anonymised and redacted, would be able to identify the family through
linking the story with information already in the public domain. It is
submitted on behalf of the husband that, if he, the wife, and their son are
identified as a result of publicity concerning these proceedings, there will be
a serious interference in their everyday life, both now and in the future. The
emphasis in the submissions on behalf of the husband, as in those advanced on
behalf of the wife considered below, is on the impact on the family. In oral
submissions, Mr Pointer on behalf of the husband conceded that he could not
identify any confidential information concerning the company in the judgment
which, if published, would have any adverse economic consequences.
8. Mr
Pointer accepted that there are elements in the judgment which would be of
interest to legal professionals specialising in matrimonial finance work. He
submitted, however, that “the professional interest of a small clique of
specialist practitioners is a far cry from bringing the information contained
in the judgment within the general public interest. The professional interest
of specialist practitioners is a relatively marginal factor to weigh in any
balancing exercise.”
9. In
the alternative, Mr Pointer submitted that, as the wife had now filed a notice
of appeal against my order, there should be an order prohibiting publication
for the time being, pending the outcome of the appeal, with liberty to revive
the matter if the appeal falls away. He described that as the pragmatic
solution, given that any ruling by this court may be superseded by proceedings
in the Court of Appeal.
10. As stated above, the wife is
said to be neutral on the husband’s principal submission, but strongly
supportive of the alternative argument that, if published, the judgment must be
carefully anonymised and redacted. It is the wife, through a statement filed in
support of her application for a reporting restrictions order and in detailed
legal submissions put forward by leading and junior counsel expressly
instructed to represent her on this aspect of the case, who has taken the lead
in identifying the particular ways in which it is said publication would be
damaging to the family.
11. In her statement, the wife
draws attention once again to the particular circumstances of the parties’ son.
He suffers from a rare genetic condition which increases the risk of developing
various forms of cancer and in some cases leads to global developmental delay
and autism. The wife states that details of his condition are not widely known
amongst their friends. At his school, which the parents have carefully selected
to meet his particular needs, enquiries from other mothers about his condition
are answered by the wife with a very general response because she is concerned
that other children may learn about it, and in particular, the possible effect
on his life expectancy. She is understandably concerned that any discussion of
this information may cause distress and harm to the boy and affect his
relationships with his friends. She wishes to avoid any change in attitude
towards her son in the minds of other parents or their children as a result of
press coverage. Having carefully selected the school as a place where he can
receive education and nurturing, she is worried that it would struggle to cope
with intrusive press coverage and that his day-to-day life at school, from
which he has benefited profoundly, would be put at risk. The wife is concerned
about the possibility of direct press intrusion were the family to be
identified as a result of publication of the judgment. She contends that such
intrusion will be particularly harmful to their son, whom she described as
being extremely outgoing and trusting and therefore very vulnerable to the
approach of strangers. The wife’s protective attitude towards the parties’ son
has led her to adopt a very cautious approach to social media. She has taken
steps to ensure that his name is not available online. Although the husband,
who as stated in the earlier judgment has devoted considerable time and funds
to setting up a foundation to promote research into their son’s condition, has
alluded to his son when speaking about the foundation, he has only done so in
general terms.
12. In addition to her concerns
about the impact of publication on their son, the wife is concerned about the
impact of press intrusion on her own life. She states that not many of her
current friends know that she comes from a wealthy family. She is also concerned
about the effect of publication of the judgment on her wider family. The
hearing and judgment dealt at length with the financial affairs of her own
family, in particular those of her mother who gave evidence in the course of
the hearing and was subject to detailed and challenging cross examination. The
wife reminds me that her mother, whom she described as a very private person,
gave evidence about her financial circumstances only reluctantly in order to
support the wife’s case, and that the experience caused her considerable
distress. Her evidence included information about the family’s financial
affairs which are unknown to some members of the family. Furthermore, the
family is well known in the country where the wife was raised. Publication of
an unredacted version of the judgment would lead to unwelcome publicity for the
family in that country.
13. For these reasons, it is
proposed on behalf of the parties that any published version of the judgment
should be redacted so as to remove any information likely to identify the
husband, the wife and their son. It is the parties’ joint submission that this
redaction should extend to all information likely to identify the husband’s
company. Were that company to be identified through publication, it would
inevitably lead to the identification of the husband and thus to other members
of his family.
14. In support of their client’s
case on this issue, Mr Desmond Browne QC and Ms Caroline Addy stress that anonymisation
alone will not suffice to protect the wife’s privacy or that of her child and
that, as a result, it must be accompanied by targeted redactions to prevent
jigsaw identification. They warn that the inclusion in the published judgment
of seemingly anodyne information may inadvertently facilitate jigsaw identification.
They cite, for example, the date and location of the parties’ marriage.
15. So far as the balancing
exercise is concerned Mr Browne and Ms Addy submit that the decisive factor in
relation to the article 10 rights in this case is the nature of the contribution
which publication would make to a debate of general interest. It is the wife’s
case, supported by the husband, that knowledge of their identities will not add
anything of value to the legitimate and ongoing public debate about the right
way to divide assets upon divorce and the approach of the courts to this issue.
They also stress the point identified above that the article 8 rights to be
taken into account when conducting the necessary balancing exercise include
those of the child as well as his parents. Given the very particular needs of
this child, they submit that the balance in this case comes down clearly in
favour of a substantial redaction of the judgment.
16. In his written submissions,
Mr Farmer stresses that the starting point should be the open justice
principle, even though the proceedings are in private. He relies on the fact
that, as mentioned above, there is currently disagreement amongst judges of the
Family Division about whether financial remedy hearings should be conducted in
private or in public, and that the case is taking place in what he describes as
the wake of a transparency drive. He rightly points out that the wages of the
judge and court staff are met by the taxpayer. Consequently, there is a public
interest in knowing what a High Court judge in the Family Division is doing. He
makes the point, of which this Court is only too well aware, that judges are
hard pressed and that hearing dates are hard to find. Mr Farmer suggests that
people might say that a judge’s time would be better spent dealing with cases
involving vulnerable children rather than matrimonial disputes between rich
people.
17. Mr Farmer concedes that the
husband in this case is not a public figure who is recognisable to the man in
the street, but points out that he is a wealthy high-profile businessman who
has made his money out of members of the public. There is therefore a public
interest in his financial affairs. Furthermore, Mr Farmer rightly points out
that the husband’s business activities extend to many other countries and that
both parties originate from countries outside the United Kingdom. As a result,
the case has an international dimension which is likely to attract the
attention of media organisations in other countries. Since any order
restricting reporting in this country will not extend beyond the jurisdiction,
Mr Farmer submits that it would be unfair to “hobble” journalists in England
and Wales when their colleagues outside the jurisdiction will be free to report
whatever they like about the case. He rightly stresses the responsible attitude
of the press in this country to the reporting of family proceedings which he
contrasts with what he describes as the “irresponsible” foreign press and the
uncontrolled activities on social media and the internet generally.
18. Mr Farmer sought to assure
me that he would not propose to publish information about the parties’ son, or
even refer to the fact that they had a child at all. It was his case that other
information about the case could be published in a way that did not cause harm
to the boy, and that it was in the public interest for the media to be
permitted to publish that information.
Discussion and conclusion
19. In seeking to strike the
balance between the competing rights in this case, I start by acknowledging the
importance of the article 10 right to freedom of expression and the
constitutional importance of open justice. But Parliament has decided that
proceedings in the family court should normally be heard in private. Within the
context of private financial remedy proceedings, the parties are required to
give full and frank disclosure of all relevant matters, including details of
their private financial affairs. Full and frank disclosure is essential if the
court is to deliver justice in such cases. The guarantee of confidentiality is
an important concomitant of the disclosure obligation. Accordingly, until
Parliament decides otherwise, the family court at first instance must continue
to take all necessary steps to respect the confidentiality of the parties and
their circumstances.
20. I respectfully disagree with
the argument advanced by Mr Farmer that there is a significant public interest
in the naming of the husband in any published version of the judgment. In fact,
I conclude that there is little if any public interest in the exposure of the
husband and his family and the issues which have been ventilated before the
court in these proceedings. The fact that the husband is a successful businessman
does not mean that his family life is entitled to less respect than that of
anyone else. There is nothing in the conduct of either party in these
proceedings that would justify such exposure. Neither party has been guilty of
litigation misconduct which would justify the withdrawal of confidentiality.
21. I agree with Mr Farmer that
the public are entitled to be informed about the activities of the family
courts and the workload of the judges. He is right in highlighting the question
of whether it is appropriate to devote the limited judicial resources of the
Family Division to financial remedy disputes between a rich husband and wife as
opposed to complex child protection cases involving poor and vulnerable
families. In fact, most family lawyers, and certainly most matrimonial
financial specialists, would argue that children’s cases do receive rightful
priority and that it is litigants in financial remedy proceedings that suffer
from the delays caused by insufficient resources. Nevertheless, Mr Farmer is
right to raise this issue. But in my judgment, the public interest in this
aspect does not require the parties to be identified.
22. For the reasons identified
by Thorpe LJ in Lykiardopulo, there is a public interest in the
publication of my earlier judgment which deals with a number of issues that
arise in financial remedy cases, including the treatment of nuptial agreements
on divorce generally and an Italian separazione dei bene in particular,
the treatment of so-called “unilateral” assets, latent potential, and special
contribution. These are matters of interest not just to “a small clique of
specialist practitioners” but also to the community at large, in particular
those who are or may find themselves in similar proceedings in future. I
recognise, of course, that this case lies at one extreme end of the spectrum of
financial remedy cases and that it may be thought that the decision is of
little relevance to the vast majority of such cases in the family court, but
for the relatively small cohort of “big money” cases the outcome of this case
may have some relevance. A number of the issues that arose in the case –
including foreign nuptial agreements, the identification and treatment of
matrimonial and non-matrimonial assets, and special contribution – arise in
cases where the value of the assets is much less than in this case.
23. There is, therefore, a
public interest in the publication of my earlier judgment. That interest does
not, however, require the judgment to be published in a version which
identifies the parties or other members of their family.
24. In considering the article 8
rights in this case, the court bears in mind, as noted by Lord Neuberger of
Abbotsbury PSC in PJS v News Group Newspapers Ltd [2016] UKSC 26,
[2016] AC 1081, that
“claims based on respect for
privacy and family life do not depend on confidentiality (or secrecy) alone. As
Tugendhat J. said in Goodwin v NGN Ltd and VBN [2011] EWHC 1437 (QB) at paragraph 85, ‘the right to respect for private and family life
involves more than one concept’. He went on to cite with approval a passage …
in The Law of Privacy and the Media, 2nd edition, 2011, Warby,
Moreham and Christie [which] summarised the ‘two core components of the rights
to privacy’ as ‘unwanted access to private information and unwanted access to
[or intrusion into] one’s …personal space”, what Tugendhat J as characterised
as ‘confidentiality’ and ‘intrusion’”.
As explained above, the article 8
rights which the parties enjoy in this case, as in all financial remedy cases,
include the confidentiality that attaches to the information which they have
been obliged to disclose within the proceedings. But the evidence establishes
that the other component of the right to privacy – the right against unwanted
intrusion into one’s personal space – also arises in this case. In particular,
it is certain that identification of the parties would cause some intrusion
into the life of their son, and it is significantly likely that the intrusion
would be on a scale that would cause harm to this vulnerable boy. I accept the
wife’s evidence as to the various risks of harm to her son that would arise
were the judgment to be published in a form which identified the parties. For
the reasons set out at length by the wife in her statement, and reiterated by
counsel for both parties in their written and oral submissions, I am persuaded that
there is a particular need in this case for the court to take all necessary
steps to protect the family, and in particular the parties’ son, from the risk
of identification. I accept that any reporting restrictions order made by this
court will have no authority outside the jurisdiction, but it is within the
jurisdiction that the need for protection of the child arises.
25. If the judgment was
published with simply the names of the parties and other family members
removed, and only the information concerning the boy’s circumstances redacted, that
would not be sufficient to eradicate the risk of identification. The detailed
account of the history of the husband’s company would undoubtedly lead to
jigsaw identification. Accordingly, any published judgment must be further redacted
to exclude those details. I also accept that there is a number of other details
in the judgment which must be removed from any published version so as to avoid
the risk of inadvertent identification.
26. I do not, however, accept
the submission on behalf of the husband that this is a case which falls into
the exceptional category which is “incapable of camouflage”. I conclude that,
by redacting the judgment so as to delete from any published version the names
of the parties, details of their son’s circumstances and condition, and crucially
the history of the husband’s company, together with some other details
identified by counsel, it will be possible to conceal the identity of the
parties and other family members. It is true that a redaction of details on
this scale may reduce the utility of the published judgment since it may
obscure some of the detailed reasoning for the court’s decision on some of the
issues, in particular the issue of special contribution. A substantial part of
the judgment will, however, be published without redaction and I do not
consider that publication of the anonymised and redacted judgment will be
pointless.
27. I am not attracted by the
suggestion that a decision about whether to publish the judgment should be put
off until after the determination of the proposed appeal. It is unclear how
long the appeal process may take. So far as I am aware, decisions about whether
a judgment at first instance should be published have not previously been
postponed until after appeal.
28. Accordingly, I conclude
that, balancing the competing rights in this case, and having regard to the
importance of those rights and the reasons for interfering with them, the
article 8 right to respect for private and family life enjoyed by the parties and
their child outweighs the article 10 rights engaged in this case, and that it
is proportionate for this court to make a reporting restrictions order
precluding the publication of any information relating to the proceedings, save
for an anonymised and redacted version of my judgment dated 21 December 2017.
29. The parties have submitted a
schedule setting out areas of agreement and disagreement on the details of the
proposed redactions. I shall respond by sending out a note setting out my
decisions on the individual points at issue. For obvious reasons, it is neither
necessary nor appropriate to include those comments in this judgment.
30. The reporting restrictions
order will be in the standard form used in the family courts. The order will be
as set out below, which substantially follows the drafts submitted by the
parties, albeit with some amendments. In particular, I have not included the
so-called “public domain” proviso. As is now widely accepted, in cases where
the article 8 rights under consideration include intrusion, so that the
repetition of information will cause a further interference with the rights, it
is appropriate to restrain the publication of information notwithstanding the
fact that it is already in the public domain: PJS v News Group Newspapers
Ltd, supra, per Lord Mance at para 32. It is of course right that, when
considering whether to grant relief which might affect the exercise of article
10 rights, the court is obliged by s.12 (4)(a)(i) of the Human Rights Act to
have regard to the extent to which the material has become available to the
public. In this case, although Mr Farmer informed me that there was some
knowledge about the case amongst members of the media, there is no evidence of
any substantive prior publication. In the circumstances, the public domain
proviso would serve no useful purpose.
31. The order will be as
follows:
AFTER HEARING Desmond Browne QC, Lucy Stone QC,
Duncan Brooks and Caroline Addy for the applicant wife; Martin Pointer QC and
Rebecca Carew Pole for the respondent husband
AND AFTER HEARING Mr Brian Farmer of the Press
Association
REPORTING
RESTRICTIONS ORDER MADE BY MR JUSTICE BAKER ON 19th June 2018 SITTING IN
PRIVATE
IMPORTANT: If you disobey this order you may be found
guilty of contempt of court and may be sent to prison or be fined or have your
assets seized. You should read the order carefully and are advised to consult a
solicitor as soon as possible. You have the right to ask the court to vary or
discharge the order.
The parties
1. The
applicants for this order are XW and XH, respectively the applicant wife and
respondent husband in matrimonial financial remedy proceedings and the parents
of AB, a child (“the parties”). The identities of XW, XH and AB are set out in
Schedule 1 to this order.
2.
The lead solicitor for XW is Debbie Chism of Stewarts, 5 New
Street Square, London EC4A 3BF. Email: [email protected]. Tel: +44 (0) 20
7822 8000; Direct Line +44 (0)20 7822 8023. The lead solicitor for XH is
Raymond Tooth of Sears Tooth, 8 Upper Grosvenor Street, Mayfair, London W1K
2LY. Tel: 0207 499 5599. Fax: 0207 495 2970. Any enquiries about the scope and
effect of this order should be addressed to either of them.
Recitals
3. On
21 December 2017, the Court handed down judgment in private on the applicant’s
claims for financial remedies under the Matrimonial Causes Act 1973.
4. 26
February 2018 the Court considered applications for the anonymisation of the
judgment delivered in the proceedings on 21 December 2017 and for a reporting
restrictions order.
5. This
order was made at a hearing on notice to the media, who were informed by the
Press Association Copy Direct Alert Service.
6. The
Judge read the following documents:
(a) the application notice
dated 19 January 2018 and attached draft order served on behalf of XW;
(b) the witness statement
of XW dated 19 January 2018;
(c) the application notice
dated 19 January 2018 and attached draft order served behalf of XH;
(d) various draft redacted
versions of the judgment dated 21 December 2017;
(e) written submissions on
behalf of the parties;
(f) correspondence
from Mr Farmer setting out submissions on the application for a reporting
restrictions order.
7. Schedule
2 to this order contains an explanatory note. It forms part of this order and
must always be supplied any person affected by the order.
Orders
8. Duration
This order shall have effect
until further order of the court.
9. Who
is bound
Subject to the following
paragraph, this order binds all persons and/or companies or unincorporated
bodies (whether acting by their directors, employees or in any other way) who
know that the order has been made.
10. Territorial limitation
In respect of persons outside
England and Wales:
(1) Except as provided in
subparagraph (2) below, the terms of this order do not affect or concern anyone
outside the jurisdiction of this court.
(2) The terms of this
order will bind the following persons in any country, territory or state
outside the jurisdiction of this court:
(a) the applicants
or their agents;
(b) any person who is
subject to the jurisdiction of this court;
(c) any person who
has been given written notice of this order at his residence or place of
business within the jurisdiction of this court;
(d) any person who is able
to prevent acts or omissions outside the jurisdiction of this court which
constitute or assist in a breach of the terms of this order;
(e) any other
person, only to the extent that this order is declared enforceable by or is
enforced by a court in that country or state.
11. Undertakings
The parties will not without the
permission of the Court seek to enforce this order in any country, state or
territory outside England and Wales.
12. Anonymisation of the
judgment dated 21 December 2017
The judgment handed down on 23
December 2017 shall be amended and redacted so as to anonymise the parties,
their child, other family members as well as other pieces of private and/or
confidential information contained in the un-redacted judgment so that no
person, other than the advocates or the solicitors instructing them (and other
persons identified by name in the redacted judgment itself) may be identified by
name, location or by any other means from the judgment and that in particular
the anonymity of the child and the adult members of their family, including the
parties, must be strictly preserved.
13. Publishing
restrictions
This order prohibits the publishing
or broadcasting in any newspaper, magazine, public computer network, Internet
website, sound or television broadcast or cable or satellite program service or
otherwise (including, for the avoidance of doubt, BAILLI or other legal
resources websites) of any of the following matters:
(1) the following
information:
a. the
names of the parties and any other matter tending to identify the parties,
their child and the third parties identified in Schedule 1 to this order (and
hereafter referred to as “the third parties”);
b. any
information relating to the parties’ finances, including their income, assets,
financial resources, expenditure, financial need or requirements, or their
business affairs; and
c. any
information relating to the parties’ marriage and their familial or personal
relationships; and
d. the detail
of any offers made during the proceedings
IF BUT ONLY IF such publication
is likely to lead to the identification of
(a) XW and XH as
being the parties to these proceedings;
(b) AB as being the child
of the parties to these proceedings.
(2) any information
relating to these proceedings, save for the anonymised and redacted version of
the judgment delivered 21 December 2017 and any other judgment in the
proceedings subsequently released for publication.
14. Publication of this
order
No publication of the text or a
summary of this order (except for the service of the order under paragraph 16
below) shall include any of the matters referred to in paragraph 13 above.
15. What is not restricted
by this Order
Nothing in this Order shall prevent
any person from:
(a) publishing or
seeking information which is not restricted by paragraphs 12 and 13 above;
(b) enquiring whether a
person or information or place falls within paragraph 12 and 13 above;
(c) seeking
information while acting in a manner authorised by statute or by any court in
England and Wales;
(d) seeking information
from the responsible solicitor acting for any of the parties or any appointed
press officer.
16. Service
Copies of this Order endorsed
with a notice warning of the consequences of disobedience on the front of the
order shall be served by the applicants:
(a) by service on
such newspaper and television broadcasting or cable or satellite or program
services as they think fit, by fax, email or first-class post addressed to the
editor (in the case of a newspaper) or senior news editor (in the case of a
broadcasting or cable or satellite programme service) or website administrator
(in the case of an Internet website) and/or to their respective legal
departments; and
(b) on such other persons
the parties may think fit, by personal service.
17. Further applications
about this Order
The parties and any person
affected by any of the restrictions in paragraphs 12 and 13 above may make an
application to vary or discharge it to a judge of the High Court on not less
than 48 hours’ notice to the parties and the press by the Copy Direct service.
Such application is to be reserved to Mr Justice Baker if available.
18. Costs
No order as to costs.
SCHEDULE 1
[Names]
SCHEDULE 2:
EXPLANATORY NOTE
(1) The
parties were married in 2008. Neither is a public figure, although the
respondent husband is a successful businessman whose products are widely used
by many people across the world.
(2) In
2015, the marriage broke down and the wife, XW, filed for divorce. The ensuing
financial remedy proceedings, which were complex, were heard in private in
2017, with judgment handed down on 21 December 2017.
(3) By applications
made in February 2018, both parties applied to the court for a reporting
restrictions order to prevent any reporting of the judgment (HX) or to allow
only the reporting of a redacted version (WX).
(4) After
a hearing on 26 February 2018, at which the press were present and made
representations, Baker J. made the above order redacting the judgment.
