Hearing an appeal in private

 
The Court of Appeal were asked to rule, as a preliminary issue, whether the mother’s appeal should be heard in private

Re DE and AB 2014

http://www.bailii.org/ew/cases/EWCA/Civ/2014/1064.html
Even though a family Court hearing is held in private (or secret, depending on your standpoint), where only those directly involved – or the Press by application, can attend, if the case gets appealed, the appeal hearing is usually heard in public.

It always throws you a little when you are in the Court of Appeal, dealing with incredibly sensitive and delicate matters and there are thirty bored law students and two Roy Cropper types with  tartan thermos flasks sitting on benches behind you, but that’s the way of it. Anyone can walk into the Court of Appeal and watch a hearing.

In reality what they get to hear is two hours of this sort of thing

“I see at paragraph 14, subsection (v) of your document that you make reference to Lord Butter’s decision in Re K – can you take me to the relevant passage?”

“My Lords, yes, in the bundle of precedents, that is at page B92, and it is the third paragraph from the top, beginning ‘it is well-established that’…”

And the prospects of anyone being able to make sense of, follow or enjoy that whole affair are pretty limited.
Anyway, the main dispute in Re DE was the claim by a mother that the father should make financial payment for a child – this is under Schedule 1 of the Children Act. This is usually (but not necessarily limited to) for cases where the parents weren’t married to each other and it is a way of getting one parent to make a financial contribution to the other, where the Child Support Agency can’t help (because the case is more about capital than income, or one parent is effectively a millionaire)
In the High Court, Mr Justice Bodey refused the mother’s application, and made an order restricting the reporting of the case – i.e that the parties and the child could not be named.
The father asked for the appeal to be heard in private, in large part as a result of this:-
The father applies for the proceedings to be heard in private on the basis that the mother, in a telephone call she made to the father on 2 July 2014, has threatened him with ‘maximum publicity’ by ensuring that as many journalists and members of the public as possible attend the permission hearing. The father contends that the publicity of the appeal process is being used to bring undue pressure on him and to defeat the administration of justice by publicising in open court matters and information that are currently restrained by injunction (the ‘prohibited information’). Indeed, during the 2 July telephone call the mother allegedly informed the father that the risk of the prohibited information coming to the attention of the public could be avoided if he made a payment of £250,000 to her and also guaranteed that he would meet certain financial requirements set by her. In layman’s terms, if that allegation were to be proved, the precipitating circumstance would not have been a negotiation, it would have been blackmail
[Nicely put, that last sentence]

Followers of the super-injunction scandal of a few years ago may remember that some of the super-injunctions were granted on the basis of an allegation of blackmail – i.e give me compensation/a cheque and we’ll leave the papers out of it. So, one has to be wary – just because father makes that assertion doesn’t mean that it is true, and likewise just because the mother denies it doesn’t mean that father made it up. Just don’t take it as being settled either way.

Of course, the loophole here, is that by appealing the decision of Mr Justice Bodey, the case goes into the Court of Appeal, and the Press and public can attend that hearing.

Father’s preliminary application, therefore, was that if the appeal was open to the press and public, then all the benefit to him of Bodey J’s judgment would be lost BEFORE the Court of Appeal decided whether he was right to have given the father that protection. The Press and public would already be in the court room, hearing all of the juicy details.
The Court of Appeal therefore had to weigh that point (in essence, there’s no point arguing about whether something should be secret if you tell everyone the secret before you have the argument) against the wider public interest of appeals being heard in public.

I heard the father’s preliminary application before coming to a decision whether to adjourn it as requested by the mother. I did not need to decide the truth or otherwise of the allegation that the father makes as the trigger to the application given the stance taken by the mother before me. The mother makes it clear that she wishes the detail of the prohibited information to be discussed in open court, indeed that is the purpose or one of the purposes of her appeal. I make it clear having listened to her at length that I came to the very firm conclusion and I find as a fact that although she asserts that the prohibited information must be discussed in public so that on behalf of the public she can ensure that ‘secret justice’ is subjected to scrutiny, her overriding intention is to extract revenge on the father, if needs be at the expense of the child.
Despite the entirely adverse view that I formed of the mother, it is necessary for me to record that an application to cause part of the appellate process to be heard in private should be a very rare application indeed. Given the inevitable and proper moves to transparency within the family courts it would be an entirely retrograde step that would potentially damage family justice were this court to be persuaded to sit in private on anything other than an exceptional basis. It was not necessary to decide to do so on the application made in this case because a more proportionate mechanism was available.
As I shall explain, the court was able to use its powers to prevent publication of the prohibited information while continuing to sit in public. Even if it had been necessary to sit in private I would have done so with representatives of the media being present and able to take notes, that subject only to undertakings or orders to protect the prohibited information, would have enabled them to exercise their proper role in the public interest in the administration of justice. The circumstance that permitted this solution to be easily applied to this case was that no member of the public save for a pupil member of the Bar chose to attend the hearing, let alone the allegedly threatened supporters who might have been intent on publication rather than scrutiny.

[The last bit is saying, in essence, that this might have been difficult had there been members of the Press and public there to throw out, but in reality, there was just one pupil barrister, who politely made their excuses and left]
But the Court of Appeal still had to follow the principles and precedents and come to the right decision in law. In case the issue comes up again, it is helpful that the case sets those principles out

Legal submissions on the law – power to sit in private
The father submitted that it was necessary to seek an order that the hearing take place in private on the basis that (a) publicity would defeat the object of the hearing; (b) a private hearing was necessary to protect the interests of the child; and (c) it was in any event necessary in the interests of justice.
A court hearing an appeal or an application for permission to appeal may sit in private if the court whose decision is being appealed had the power to sit in private during those proceedings. But the appellate court must give its decision in public “unless there are good and sufficient grounds” for giving it in private (in which case the court must state those grounds in public): see section 1 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968.
Though a case was heard in private, it does not follow that the Court of Appeal will sit in private, on the contrary. Hearings in family cases in the Court of Appeal are open to the public, save on very rare occasions where the court orders otherwise: see The Family Courts: Media Access & Reporting, published by the Judicial College and Society of Editors in July 2011.
It is axiomatic that the starting point for this court’s consideration of the preliminary application is that open justice is a fundamental principle. The general rule is that hearings are carried out in, and judgments and orders made, are public: see, for example article 6(1) ECHR, CPR 39.2 and Scott v Scott [1913] AC 417.
Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising its wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury observed at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:
“As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration.”
A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:
“But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”
After citing the dictum of Viscount Haldane, Lord Devlin continued at p 239:
“That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”
More recently the importance of the common law principle of open justice was emphasised by nine Justices of the Supreme Court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38; [2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society at [2]. He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: AMM v HXW [2010] EWHC 2457 (QB) at [34].
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence: Scott v Scott [1913] AC 417 at 438 – 439, 463 and 477 and JIH v News Group Newspapers [2011] EWCA Civ 42 (JIH) at [21].
When considering the imposition of any derogation from open justice, the court must have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings.

It is also worth noting that unless the Court of Appeal make a specific order (which they have the power to do), then all of the restrictions on reporting and naming the parties which would apply in the Family Court do not apply.

Specifically

Section 12(1) a of the Administration of Justice Act 1960 will not apply to the present hearing if it is to be heard in public. As a consequence, any matters discussed in open court at the permission hearing can be freely reported.
Reporting is prima facie not restricted unless the Court of Appeal makes an order in the proceedings. In children cases, s. 97(2) Children Act 1989 does not apply in the Court of Appeal: see Pelling v Bruce Williams [2004] EWCA Civ 845; [2004] Fam 155; [2004] 2 FLR 823 at [53]).
This Court has observed that it is necessary to analyse whether, on a consideration of the competing rights in each case, anonymisation of proceedings and judgment is necessary: Pelling v Bruce-Williams at [49]. Reporting may be restricted under the inherent jurisdiction or the Children and Young Persons Act 1933 section 39, if applicable.

So the Court of Appeal had to decide whether to exercise that power in this case. They did, on the basis that given that the mother was seeking publicity in this case, and that there was an anonymised judgment giving lots of details about the case (but no names) out in the public domain, it would be simple if this appeal was using real names to link the two cases together and for a lot of sensitive and delicate information to be in the public domain.
the fact of the existence of the anonymised judgment of Bodey J significantly enhances the risk that if the parties are named prior to the outcome of the hearing or any permitted appeal, that the information restrained would in any event enter the public domain through jigsaw identification. This court finds itself in the position encountered by Bodey J, that is if during the hearing information currently subject to the injunction is discussed in open court and is rendered reportable, “it would effectively be to give the mother everything she seeks, something which [I] think she realised during the course of the hearing, and would undermine the balanced decision taken by DJ Waller not to permit disclosure to the Police and/or the FCA”.
Accordingly I shall order that the proceedings be held in public but subject to immediate and continuing publicity protections so as to prevent withheld and prohibited information from being disclosed into the public domain without the permission of the court. There shall be anonymisation of the reporting of the identities of the parties and the child and any information likely to lead to the identification of the child and the order made by Senior District Judge Waller shall be extended to cover this hearing.
At the conclusion of the permission hearing and after permission had been refused and further argument heard, I extended the orders made during the proceedings to protect any prohibited information inadvertently disclosed during the hearing. For the avoidance of doubt, the injunction made by SDJ Waller continues to have effect. The precise terms of the orders that I made are annexed to this judgment.