We wrote in January about a case reported as a wife losing her fight to keep divorce hearings secret. The wife in question was Mrs Norman. You can read our original post here. At the time the judgment explaining the Court of Appeal’s reasons had not been delivered, and we said we would update our post once it was published. The judgment is now out :
and this is that update.
The first thing to note is that it is now clear beyond doubt that the judgment in N v N  EWCA Civ 2011 does indeed concern the same couple, because although the case numbers can’t be matched, the facts can – in particular the fact that an original consent order was made by District Judge Levey sitting in Guildford on 11 January 2005.
Mr and Mrs Norman have been involved in this litigation for now over a decade. This new judgment sets out the extremely convoluted and complicated procedural background – in short many appeals over many years.
This new judgment is specifically limited to the refusal of the Court of Appeal to grant / renew a privacy injunction in the appeal. It doesn’t deal with the outcome of the appeal itself which will be covered in another judgment (which we may or may not see published because it is a refusal of Permission to Appeal rather than a judgment on full appeal, and refusals of PTA are not routinely published – although it seems likely this one will be due to the fact that a connected judgment is already in the public domain).
The short version is that the press had not been served with notice of the injunction made in an earlier Court of Appeal hearing (on a different connected appeal), so the previous existence of that injunction could not be relied upon as a “status quo” argument. More importantly, the court was very clear that the facts did not justify anonymity. See here for example at pa 72 :
…The fact that a litigant is criticised for bringing a claim (or, indeed, for defending one) cannot in general be a ground for saying that the litigant’s article 8 rights* are engaged, although there may of course be circumstances where, because of extreme comments on social media, a litigant may have well founded fears for his or her safety in which case anonymity may be justified. [*Article 8 rights are the right to private and family life]
In 2011 Mrs Norman had been the subject of critical commentary in the press. That was not enough – and arguably would not have been treated as enough in 2011 if the press had been notified and argued the toss.
It is important to understand that this decision is very explicitly about how questions of open justice and anonymity in financial remedy cases should be approached at Court of Appeal level (where the starting point is that proceedings are in open court, and the relevant rule is Civil Procedure Rule 39.2(1)). It is not about the correct approach to “first instance” hearings (the original divorce trial) where the relevant rule is Family Procedure Rule 27.10, which states that the starting point is that the hearing is in private. It therefore does not resolve the ongoing difference of opinion between High Court Judges about privacy in financial remedy cases, i.e. it does not resolve the “current conundrum in respect of the proper interpretation of FPR r. 27.10” as the court diplomatically put it. However, Black LJ tells us that this issue is due to be resolved in another appeal shortly.
The three concurring judgments are all careful to draw this distinction between the original trial and the Court of Appeal – there is a particular emphasis on :
- the fact that hotly contested evidence may be heard live at trial, that may turn out to be irrelevant or untrue – whereas in an appeal the facts have already been decided and the appeal court just has to look at the law as applied to the facts, and
- the greater likelihood of public interest at appellate stage.
The answer to the question of whether anonymity ought to be granted in any given case may (or may not) be different at first instance than at appellate stage – we will have to await the judgment that Black LJ has promised.
In the Court of Appeal the judges have now clarified the procedure when someone wants to ask for anonymity. It is no longer good enough (if it ever was) to simply turn up at court and expect the court to grant anonymity. A proper application must be made and served on the press :
34 In future (and subject to the exception below), this court will expect that any application for this court to hear an appeal, or an application for permission to appeal, relating to financial relief proceedings either in private, or subject to reporting restrictions which anonymise the parties or prevent publication of information relating to the application (“an anonymity application”), will be the subject of a formal court application, setting out the grounds and supported by necessary evidence, upon which the anonymity application is based. Notice of the intended anonymity application, a copy of the Notice of Appeal and any evidence in support of the anonymity application should also be given by the applicant to media organisations by service on the Press Association’s Copy Direct Service. The exception to which I refer is as follows: in a financial remedy appeal, where all that is sought is to anonymise the names and dates of birth of minor children or, for example, to restrict publication of information relating to where they attend school, or about their medical condition, and the parties agree, a formal application may not be necessary. However, even in such a case, a letter should be sent to the court indicating that such an application will be made and stating that the court may wish to consider whether the press should be informed. …
Footnote 9 : If the application is made at the same time as the Appellant’s Notice is filed, then the anonymity application can be made by inclusion of the proposed order sought in Section 9C of the standard form and by inclusion of, or reference to, the evidence in support of the anonymity application, in section 10. If the anonymity application is made later, then it will need to be made by means of the issue of a separate application notice and payment of the applicable application fee. In the first instance, the Notice of Appeal, and evidence in support of the anonymity application may use initials.
The practical reality is that the notification itself may attract more attention from the press than doing nothing would have done, particularly when The Times appears to be running something of a campaign for openness in these sorts of proceedings (see the first post about this case), so those who want to avoid press intrusion will have to think very carefully before deciding whether it is better to ask for an injunction or to try and sail under the radar of the press.
Sailing under the radar is probably made easier however if you avoid making threats to kill your ex and swearing profusely in the course of the actual appeal hearing, as this recent news report demonstrates :
We’ll try and cover Mr and Mrs Crowther’s case when there is better information available. It looks as if it might be a useful case through which to explain the law about inherited property and division of marital assets.
Feature pic courtesy of Sybil Liberty on Flickr – thanks!