Elements of Scott v Scott
Scott v Scott  UKHL 2,  AC 417 is well-known (see my earlier post ) – and still almost daily referred to – for its definition of open justice principles. It is not always recalled that the case dealt with two issues, recorded by the ICLR Appeal Cases head-note as:
“(1) That the order [appealed from] to hear in camera was made without jurisdiction; and (2) that the order, assuming that there was jurisdiction to make it, did not prevent the subsequent publication of the proceedings.”
The second element (described as ‘Scott (2)’ here) deals with subsequent publication or release to non-parties of court material. The publication of court material to non-parties has been the subject of authoritative case law over the last forty years; in this case law Scott (2) is not mentioned. If ‘subsequent publication’ of material was the common law in 1913, surely it remains law in 2019, unless expressly overridden by statute (R v Secretary of State for the Home Department, ex p Simms  UKHL 33;  2 AC 115 per Lord Hoffman at 131).
Scott (2) is common law authority for the proposition that, even if a case is heard “in private” (“in camera” in 1913), material which emerges from the case can be released or published, unless the court makes an order restricting release or other reporting of the case. Since Scott, both statute and the common law have intervened to regulate Scott’s subsequent publication rule in the form of:
(1) In proceedings relating to children and those suffering from a mental incapacity (what Scott described as the administrative role of the court) statute confirms that publicity of proceedings may involve contempt of court (Administration of Justice Act 1960 (AJA 1960) s 12(1)); and
(2) In respect of documents produced by compulsion of a duty to disclose (such as in matrimonial financial relief proceedings) under the ‘implied undertaking’ to the court codified in CPR 1998 r 31.22(1). (In relation to Family Law Act 1996 Pt 4 (domestic abuse) cases, as explained in Clibbery v Allan  EWCA Civ 45;  Fam 261 no implied undertaking applies.)
Scott: the case
The Scott case concerned Mrs Scott’s nullity petition and the solicitor who had acted for her. She had filed a petition seeking a decree declaring that her marriage to Mr Scott was void because of his impotence. The petition was listed for hearing in camera (ie in private). It was not defended and the appellant obtained a decree of nullity which was made absolute in January 1912.
In August 1911 Mrs Scott and Mr Braby sent copies of the shorthand notes of the proceedings at the hearing to the husband’s father and sister (that was the limit of its “subsequent publication”). Mrs Scott felt an inaccurate account of the case had been given by her ex-husband to them. In December 1911 Mr Scott applied to commit her and her solicitor for contempt for sending the notes. She was said to be in breach of the order for the private hearing. 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 in effect a criminal hearing.
On the hearing of an appeal to the House of Lords Mr Scott was represented there, at the request of the court (to ensure the case would be fully argued), by counsel provided by the Treasury, acting on the advice of the Attorney-General. After he had recited the facts, Viscount Haldane LC summarised the issues before the House ( AC 417 at 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….”
That is to say:
(1) Can the court hear nullity proceedings in secret?
(2) If so, can it prevent the parties making the public the details of what happened?
Scott and subsequent publication
Lord Shaw found himself “shocked” by what was unravelling in the case as to secrecy of court proceedings (at 476). He concluded categorically that the judge in the Probate Divorce and Admiralty Division judge (Family Division judge, in modern terms) had had no power to make the order for a hearing in private. And even if he did have such a power:
“I am further of opinion that, even on the assumption that such an order had been within his power, it was beyond his power to impose a suppression of all reports of what passed at the trial after the trial had come to an end.”
It is difficult to be clear on what was the Lord Chancellor’s view on this question. Perhaps because he saw no need to express an opinion on the publicity point once he had decided there was nothing “exceptional” which justified the hearing being in private (439-440). Earl Halsbury’s view “as to the injunction of perpetual secrecy” was that there was no “judgment of authority to justify it” (443). Earl Loreburn accepted the need to recognise the “terror of publicity”, in a party to proceedings, at the hearing and afterwards, but as to preventing all subsequent publication, his opinion was (448):
“… To say that all subsequent publication can be forbidden and every one can be ordained to keep perpetual silence as to what passed at the trial is far in excess of the jurisdiction, and is indeed an unwarrantable interference with the rights of the subject. It is not that a Court ought to refrain from exercising its power in such a way. It is that the Court does not possess such a power.”
And so, he said,
“the right of this lady to tell the truth and to furnish the best evidence of the truth in defence of her own character and reputation is inalienable, and cannot lawfully be taken away by any judge.”
Lord Atkinson centres his findings on the variety of cases nowadays summarised in CPR 1998 r 39.2(3) as that “(a) publicity would defeat the object of the hearing” – “secret processes” as Lord Atkinson described them (450-451) – as distinct from the parens patriae jurisdiction associated with children etc. However he distinguished nullity cases:
“Nullity suits are not instituted to protect property. The publication of the evidence taken in camera in such a suit even after the cause has ended may, no doubt, cause pain, but it cannot render property valueless or cause the destruction of the whole matter of dispute. The relief prayed for will have been granted or refused, the issues in the suit decided, subsequent publication of the evidence could not have an effect at all…”
Recent case law
Over the past 40 years case law on release of court material has included the following cases. First, in Re F (orse A) (a Minor) (Publication of Information)  Fam 58 (CA) Scarman LJ (with Lord Denning MR and Geoffrey Lane LJ) considered publicity of material from wardship hearings held in private (ie Scott (2)). He restricted its ambit in wardship (in modern terms, to all children proceedings per AJA 1960 s 12(1)(a)) to the following (at 93-94):
“… The true reason [publication cation of information relating to the proceedings should be prevented] was the mischief likely to be done to the ward if familial proceedings, parental in character though conducted by a judge, should be exposed to the glare of publicity. But, as was also clearly said in [Scott], the common law did not permit the cloak of secrecy to remain wrapped round the proceedings longer than was necessary in the interests of the ward. ‘When respect has thus been paid to the object of the suit, the rule of publicity may be resumed,’ Lord Shaw of Dunfermline said in the course of his speech at p 483. It is, I think, a necessary implication in all the speeches in [Scott] that the cloak of secrecy was available to conceal from the world, not the life story of the ward, but only so much of it as was properly to be regarded as the subject of the proceedings….”
In Clibbery v Allan  EWCA Civ 45;  Fam 261 the Court of Appeal (Dame Elizabeth Butler-Sloss P, Thorpe and Keene LJJ) made an order – that they could not restrict release of court materials in a domestic abuse (Family Law Act 1996 Pt 4) application – that complied with Scott (2), but without mentioning that aspect of Scott. (Re F was no referred to at all, perhaps because it was regarded as referring only to children.)
Common law in 2019
And so the common law in relation to release of material in family proceedings stands in 2019. A faltering track runs from Scott, through Re F and terminates in Clibbery v Allan. These cases provide the modern law for post-hearing release of material in family cases. Development of the common law since then has been left to a variety of civil proceedings cases outside the family law field. These apply to family as to any other proceedings, subject – as in any proceedings – to the restrictions in AJA 1960 s 12(1) and to what is now codified in CPR 1998 r 31.22 (the ‘implied undertaking’).
Most recently cases on release of court material include (to take only three), first, R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618. That case turned on the question of whether a court could release documents to a journalist after a court hearing, for him to make better sense of the proceeding. By extensive reference to the open justice principle the Court of Appeal held that such release was permitted. There is frequent reference to Scott v Scott, but not its second limb, despite the fact that it provided part of the answer to the issue before the court (eg Earl Loreburn: “… To say that all subsequent publication can be forbidden and every one can be ordained to keep perpetual silence as to what passed at the trial is far in excess of the jurisdiction, and is indeed an unwarrantable interference with the rights of the subject.”).
In Blue v Ashley  EWHC 1553 (Comm),  1 WLR 3630 witness statements had been released to the press before a trial, though after a pre-hearing appointment. Such release did not engage the open justice principle, said Leggatt J. There was therefore no legitimate basis for making the witness statements public in advance of the trial. Release of material was from a private hearing (ie the pre-trial appointment), but Scott is not mentioned by the judge at all. (This case must now be read through the prism of Cape Intermediate v Dring (below); and, perhaps, of Scott (2).)
In Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK)  UKSC 38,  3 WLR 429, on an application by a non-party to the case (namely a group concerned with asbestosis), the Court of Appeal ordered release of court material in a case which had been heard but which was settled before judgment. The Supreme Court agreed with that order. The range of documents – by no means all – which might be released was defined. Reference to Scott and open justice occurs; but not to Scott (2), nor as part of the reasoning for release or material.
This article has not considered Appleton v News Group Newspapers Ltd and the Press Association  EWHC 2689 (Fam),  2 FLR 1 and Mostyn J’s comment on Family Procedure Rules 2010 r 29.12(1) (no documents to be released unless with “permission of the court”), partly because it was obiter and partly because the rule, which he says prevents release of documents to the press, does not say what Mostyn J says it says. And if it does, it does so without the rule-maker, or Mostyn J, having had regard to the common law explained in this article and from Scott (2) onwards down to Cape Intermediate v Dring.
Scott (2) confirms that (subject to restrictions such as those set out in AJA 1960 s 12(1) and the ‘implied undertaking’ (CPR 1998 r 31.22(1)) as to compulsorily disclosed documents), even in relation to hearings heard in private, documents and information may be released later; and Cape Intermediate v Dring, once court material is to be released, explains what the limits of such release should be.
17 September 2019