“To be heard in the dining hall…”: Scott 100 years on
The open justice principle identified in Scott v Scott  AC 417 remains the default position for family proceedings. Any derogation or departure must be justified as an exception. The approach of the Family Procedure Rules (in FPR r 27.10), purporting to reverse the polarity of that presumption of open justice, ought to be regarded as ultra vires (ie not within the statutory powers of the rule makers: see Courts Act 2003 ss 75 and 76) — not to mention an affront to the whole purpose of open justice and transparency, viz accountability and the disinfecting powers of sunlight, argues David Burrows in this guest post.
‘Compelling reason’ for departure from open justice
Scott v Scott  AC 417 is regarded as the starting point for the definition of the narrow range of exceptions to the open justice principle. Over a hundred year later, and following a small number of statutory developments (most of which re-assert what Scott says), it retains its central importance (as the handful of references to House of Lords/Supreme Court decisions below, shows); and its reasons for departure from open court justice remain the starting point for statutory developments.
In R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 invervening)  EWCA Civ 420;  QB 618 Toulson LJ explained the open justice principle (in a comment relied upon since in the Supreme Court: see eg A v British Broadcasting Corporation (below) at §) as:
 Open justice [what Toulson LJ later calls the ‘open justice principle’]. 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. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott  AC 417, 477: “Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”
Scott v Scott explained the common law recognition of the need for exceptions to the open justice principle; but only if for compelling reason. Lord Reed summarised the Scott exceptions in A v British Broadcasting Corporation  UKSC 25;  AC 588 as follows:
 Exceptions to the principle of open justice were considered in the well known case Scott v Scott  AC 417, 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 a 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 Viscount Haldane LC, of greater relevance to the present case, was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject matter” … All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice.
Of departure from the open justice principle Lord Devlin found this to be explained in Scott. Whilst justice must be open, the procedure by which justice was to be obtained was but a means towards an end (In re K (Infants)  AC 201; and see per Lord Diplock in Attorney General v Leveller Magazine Ltd  AC 440 at 451). Justice was the end each proceeding must seek to achieve. Thus, said Lord Devlin, in In re K  AC 201, 238:
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.
Lord Toulson cites Scott as a starting point for his approach to the open justice principle in Kennedy v The Charity Commission  UKSC 20;  AC 455:
 It has long been recognised that judicial processes should be open to public scrutiny unless and to the extent that there are valid countervailing reasons. This is the open justice principle. The reasons for it have been stated on many occasions. Letting in the light is the best way of keeping those responsible for exercising the judicial power of the state up to the mark and for maintaining public confidence: Scott v Scott [(above)]; R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [(above)].
Scott v Scott: the case
Enough of references to Scott v Scott  AC 417. What was the case all about; and what does it say of legal principle 100 years later? The head-note in the law report reads, very simply:
The Probate, Divorce and Admiralty Division [part of which became the Family Division in 1970] has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera in the interest of public decency.
The headnote might have added ‘… public decency or at all; and therefore the courts cannot automatically restrict publication of details of a nullity hearing’.
The facts were not in issue. Mrs Scott filed a nullity petition for a declaration that their marriage was void because of his impotence. She then took out a summons asking for the appointment of medical inspectors, and that the petition should be heard in camera. On her summons an order was made for such a hearing. Following a hearing in camera, and she obtained a decree of nullity. There was nothing to differentiate the case, said Viscount Haldane LC, from many others which are heard in open court, and so far as the public were concerned it might quite well have been so heard he said.
The decree was made absolute in January 1912. In August 1911 Mrs Scott and Mr Braby, her solicitor (second appellant), sent copies of the shorthand notes of the proceedings at the hearing to the husband’s father and sister ‘and also to a third person’. Mrs Scott felt an inaccurate account of the case had been given by her ex-husband. In December 1911 Mr Scott applied to commit her and her solicitor for contempt for sending the copies of the notes. She was in breach of the order for the hearing in camera, it was said. The High Court found contempt, and ordered Mrs Scott and the solicitor to pay costs. The Court of Appeal refused to hear an appeal since – at the time – there was no appeal against a criminal case, and they held that this was such.
Viscount Haldane summarised the issues before the House as follows, at p 432:
My Lords, the question which we have now to decide necessitates consideration of the jurisdiction to hear in camera in nullity proceedings, and of the power of the judge to make an order which not only excludes the public from the hearing, but restrains the parties from afterwards making public the details of what took place.
Unanimously the House held that the judge had no such powers in this case; and they went on to discuss the exceptions to the open justice principle. For the judge to have lawfully ordered a hearing in camera he must bring himself within an exception to the open justice principle. It is these exceptions and the principles on which they are based which makes Scott v Scott, and the principles it laid down, so important.
Scott: exceptions to the open justice principle
The exceptions to the open justice principle recognised by Scott have expanded over the last 100 years. In A v British Broadcasting Corporation  UKSC 25;  AC 588 at §§ and , Lord Reed stressed the ability of the common law to develop (see italicised passage below), and gave a number of examples which went beyond the exceptions envisaged in Scott:
 Some of these examples may arguably go beyond the categories envisaged in some of the older authorities. As Lord Loreburn observed however in Scott v Scott at 446, it would be impossible to enumerate or anticipate all possible contingencies. Furthermore, in this area as in others the common law is capable of development. The application of the principle of open justice may change in response to changes in society and in the administration of justice. It can also develop having regard to the approach adopted in other common law countries, some of which have constitutional texts containing guarantees comparable to the Convention rights, while in others the approach adopted reflects the courts’ view of the requirements of justice (italics supplied)….
Of this passage and its wider context, in JX MX v Dartford and Gravesham NHS Trust  EWCA Civ 96;  1 WLR 3647, the Court of Appeal said:
 … Lord Reed recognised that there may be many different cases in which the court must have regard to the need to do justice in a wider sense than merely reaching a just determination of the issue between the immediate parties.
In A v British Broadcasting Corporation at § as already mentioned, Lord Reed refers to the main well-known three elements in the list of exceptions to the open justice principle:
- Wardship and children proceedings
- ‘Lunacy’, now Mental Capacity Act 2005
- That publicity might destroy the subject matter of the case (eg a commercial secret)
With the addition of national security these elements recur in the main statutory references to exceptions: in section 12 of the Administration of Justice Act 1960 and rule 39.2 of the Civil Procedure Rules 1998.
Administration of Justice Act 1960:
12. Publication of information relating to proceedings in private.
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a) where the proceedings—
(i) relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii) are brought under the Children Act 1989 or the Adoption and Children Act 2002; or
(iii) otherwise relate wholly or mainly to the maintenance or upbringing of a minor;
(b) where the proceedings are brought under the Mental Capacity Act 2005,…
(c) [relates to ‘reasons of national security’];
(d) [relates to a secret process, discovery or invention which is in issue in the proceedings];
(e) where the court (having power to do so) expressly prohibits the publication of all information relating to the proceedings or of information of the description which is published….
Civil Procedure Rules
CPR 1998 r 39.2(1) repeats the ‘general rule’ that a hearing must be in public. Rule 39.2(3) sets out particular exceptions:
(3) A hearing, or any part of it, may be in private if –
(a) publicity would defeat the object of the hearing;
(b) it involves matters relating to national security;
(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;
(d) a private hearing is necessary to protect the interests of any child or protected party;
(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;
(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or
(g) the court considers this to be necessary, in the interests of justice.
The common law has developed in a number of different directions, beyond these statutory instances, such as:
- Implied undertaking not to publish or otherwise ‘use’ documents disclosed in proceedings other than those read or referred to in open court (CPR 1998 r 31.22; and cf discussion of this subject in family proceedings in Allan v Clibbery  EWCA Civ 45;  Fam 261;  1 FLR 565).
- Exclusion of a witness who is to give evidence in proceedings (see Scott v Scott at 446)
- Lifetime reporting restrictions orders (JX MX v Dartford & Gravesham NHS Trust & Ors (above: substantial infant settlement, mother wanted to avoid publicity); Birmingham City Council v Riaz, AB & Ors  EWHC 1857 (Fam);  CN 1110, Keehan J (avoidance of publicity for survivor of sex exploitation).
- Evidence covered by hearsay rules.
Open justice principle and family proceedings
For the family lawyer, and for the proponent of open court justice (called ‘transparency’ by some, which slightly misses the fact of the rights of the public and the press), the use of these exceptions, with full subtlety, permits open justice in all courts (including family courts). Rightly – and lawfully – it turns family law’s ‘private’ court impulse (FPR 2010 r 27.10) on its head. It accords with the common law which is at present overridden is so cavalier fashion by the Family Procedure Rules Committee rule makers (FPR 2010 r 27.10 declaring all family proceedings under the rules to be in ‘private’ is palpably outside any powers (ultra vires) which they have under Courts Act 2003 which empowers the committee.
Mr Allan found that Ms Clibbery was able, lawfully, to pass on his papers to the press (Allan v Clibbery  EWCA Civ 45;  Fam 261;  1 FLR 565). If the same case were tried today, and if FPR 2010 r 27.10 were indeed lawful, the case would go the other way: Ms Clibbery would have been considered to be in contempt of court. A rule cannot change the common law (Jaffray v The Society of Lloyd’s  EWCA Civ 586;  1 WLR 75). FPR 2010 cannot alter what the Court of Appeal found in Allan v Clibbery. Despite what FPR 2010 r 10.5 (hearings in private: the Allan case would now be dealt with under FPR 2010 Part 10) and r 27.10 say, save in the cases referred to in AJA 1960 s 12(1) or where the court otherwise orders, all civil proceedings must be in open court (Scott v Scott) unless the court otherwise orders.
In the course of the House of Lords hearing in Scott  AC 417, 487, a count of the number of nullity hearings dealt with in camera in the period 1820 to 1857 (setting up of a new civil court for divorces and matrimonial cause) was attempted. It was thought there were four including a file with a pencil note with of the judge’s order that the cause be heard “in the dining hall”.
21 July 2015