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James Copson: Common Sense Prevails

Date:9 OCT 2012

James CopsonThe recent, anonymised judgment in A v A [2012] has come as a welcome relief to divorcing spouses, and to professionals involved in financial remedy proceedings. Individuals' private financial affairs revealed under compulsion through the courts can now ordinarily expect to remain confidential.

 Although financial remedy proceedings are heard in private, the media can attend all such proceedings (except FDRs) and will not be excluded from them unless a Rule 27.11 exception applies. Those exceptions are that exclusion is appropriate in the interests of a child, for the safety or protection of a party, a witness or other connected person, for the orderly conduct of proceedings or in case justice will otherwise be impeded or prejudiced.

 However, the decision in A v A, whilst emphasising the importance of open justice following the opening of the family courts to the media in 2009, made it clear that the role of the media will usually be limited to that of the public's watchdog, reporting only on how the family justice system works and raising awareness as to how decisions are reached. In this case the District Judge allowed the media to attend the final hearing, but imposed a reporting ban pending the financial remedy judgment. In fact, no judgment was necessary as the parties were able to reach agreement before it was handed down.

The decision is to be welcomed. It preserves the implied undertaking of confidentiality allowing parties to reveal otherwise sensitive information in financial remedy proceedings without the fear that such disclosure then becomes exposed to public scrutiny. This means that ordinarily the balance will now favour the Article 8 right to a private and family life over the Article 10 right to freedom of expression. There will, of course, be exceptional cases in which the balance will fall in favour of publication, but this latest ruling prevents financial remedy proceedings becoming a blackmailer's charter. It sits comfortably with Mr Justice Coleridge's latest decision in the long running Charman case, in which he refused permission for evidence in the financial remedy proceedings to be released to HMRC. It also sits comfortably with the Imerman decision in which the Court trumpeted its role as the ultimate arbiter as to what material should be disclosed for the purposes of resolving matrimonial disputes.

Judges can still publish their decisions, and Court of Appeal hearings are heard in public, so privacy cannot always be guaranteed if parties go to Court. But, this decision does mean that most divorcing couples can relax and feel safe in the expectation that financial remedy proceedings will be conducted without fear of media intrusion. For those who cannot agree and wish to preserve confidentiality without risk of media encroachment there is the alternative of arbitration under the IFLA scheme, although this does not come as the free service to the public that the Court offers. And for those who do engage in formal Court proceedings, this latest decision is a shot of good common sense.

James Copson is a Partner at Withers LLP with expertise in the resolution of complex financial disputes, especially those of an international nature.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.