Family Law

Cape Intermediate & the family lawyer

The case formally applies only to CPR 1998 proceedings, ie not to family proceedings. However, the Supreme Court makes clear that its decision is intended to extend to all proceedings covered by the common law, ie including all family proceedings. This is subject to proceedings which involve private material, or for example, material relating to children (see eg the list in CPR 1998 r 39.2(3)); but not necessarily only where the court has ordered a private hearing.

Guardian v Westminster - referred to extensively by the Supreme Court—involved a successful journalist’s application for release of court material from criminal proceedings. Toulson LJ explains at [1] (cited by Lady Hale) ‘open justice’: ‘Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes—who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process….’

Guardian v Westminster applies to criminal proceedings, and Cape Intermediate to civil. So what of family proceedings? Open justice applies to all common law courts. This is explained in Cape Intermediate (at [41]) by setting out four principles (emphasis added):

1. Open justice ‘applies to all courts and tribunals exercising the judicial power of the state’.
2. Thus ‘unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court’ etc.
3. ‘Court’s rules [are] not determinative (save to the extent that they may contain a valid prohibition)’ of the issue.
4. It is not a question of the limits of the court’s jurisdiction. ‘What is… in question is how that jurisdiction should be exercised in the particular case.’

The open justice principle applies to family courts. Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 (still the leading case on the assertion by the House of Lords of open justice) was a nullity case (ie family proceedings). Access may be denied in certain defined circumstances (Cape Intermediate at [46]): ‘There may be very good reasons for denying access [to documents]. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality’.

Rule-making powers & the common law

So how does the common law affect proceedings in family courts? In Guardian v Westminster, Toulson LJ explained how the common law has developed the open justice principle [69]: ‘[It] is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.’

Only statute can override the common law. Subject to that, the High Court has jurisdiction as to how open justice should be applied. Rules are not ‘determinative’ (see [41] above). So what do FPR 2010 say about release of documents to non-parties? Rule 29.12(1) states: ‘… No document or copy of a document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.’

According to r 29.12(1) the court the court can give ‘permission’. However, in Appleton and Gallagher v News Group Newspapers [2015] EWHC 2689 (Fam), [2015] All ER (D) 131 (Sep), Mostyn J took r 29.12(1) head on. He asserted at [13]: ‘… Further the press are not allowed any access to documents whatsoever—see FPR 29.12.’ If this is what r 29.12(1) says—and with respect to the rule-makers, the rule is not clear—it is not what Cape Intermediate v Dring says. Mostyn J’s words were obiter: they are unlikely to represent the law. A rule cannot change the common law save where statute permits (see Lady Hale in Dunhill (a protected party by her litigation friend Tasker) v Burgin [2014] UKSC 18, [2014] 2 All ER 364 at [27]: ‘[Rules cannot] change the substantive law unless expressly permitted so to do by statute’).

Even where a case is heard in private, can documents be released to non-parties? Clibbery v Allan [2002] EWCA Civ 45, [2002] All ER (D) 281 (Jan) (a case cited extensively by Mostyn J in Appleton) concerned family proceedings heard in private. A circuit judge had refused to make an occupation order injunction (under Family Law Act 1996, Pt 4) on Ms Clibbery’s application. After the hearing she passed documents in the case to The Daily Mail. Mr Allan sought an injunction to prevent publication. The injunction was granted on an interim basis but refused by Munby J, and his refusal was upheld by the Court of Appeal. Ms Clibbery was allowed to publish documents from proceedings heard in private. That remains the law today.

Cape Intermediate v Dring & release of court material in family proceedings

Cape Intermediate v Dring applies to all courts covered by the common law, including family proceedings (though privacy will dictate more exceptions). Each case, in any jurisdiction, where a non-party applies—eg media; other researcher; interested charity or other group—must be considered on its individual facts. On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision.

CPR 1998 r 5.4C will be applied by analogy in any family case. Any implication in FPR 2010 r 29.12(1) to the contrary cannot be ‘determinative’ of the release issue. Clibbery v Allan and Cape Intermediate v Dring explain what can be released from family proceedings; subject always to statutory and common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).

This article was first published by New Law Journal. Reproduced with permission.