Open justice and family proceedings: Part 2, stare decisis
In the second of three linked posts, David Burrows considers a recent drive towards open justice in financial remedy proceedings in the family courts, following a change of mind by one particular judge. … Continue reading
Financial order proceedings: privacy and anonymity after Xanthopoulos v Rakshina
A short series of ‘judgments’ over the past few months have seen Mr Justice Mostyn reconsider his views on privacy in family proceedings (especially financial order proceedings) and – especially on anonymity – radically to alter his previous position as a judge. The most recent of these cases is Xanthopoulos v Rakshina  EWFC 30 (12 April 2022).
The first post of this three part series asserted that open justice comprises four main elements:
- Is the court open for general purposes as is the case with most criminal and civil proceedings?
- What documents can be released to non-parties (eg the press) before a hearing (eg pleadings, skeleton arguments)?
- What documents can non-parties expect to read after the hearing?
- Anonymity of parties, witnesses, children etc.
Mostyn J’s subject in Xanthopoulos was mostly anonymity (ie (4)); but similar open justice principles apply throughout these four overlapping topics. A number of important legal principles – going well beyond open justice – are engaged by Xanthopoulos, principally whether a judge is entitled to differ from earlier judgments on the same subject; and even, as in Mostyn J’s case, to differ from his own previous decisions (ie to change his mind)?
Common law: stare decisis and the hierarchical principle
English and Welsh common law is based on a hierarchical system of precedent where judges at the base of the hierarchy – High Court, circuit and district judges, and magistrates – take account of the judgments of their co-equals, and are bound by higher courts (ie the Court of Appeal and Supreme Court). The Court of Appeal is bound by its own and Supreme Court decisions, save (in short-hand terms), where these are plainly wrong (per incuriam: for a recent such case, with family proceedings aspects, see eg Crown Prosecution Service v Gohil (reported as Gohil v Gohil)  EWCA Civ 1550,  Fam 276,  1 FLR 1095).
The Supreme Court can only diverge from its own decisions where not to do so, might ‘lead to injustice… and unduly restrict the proper development of law’ (Practice Statement (Judicial Precedent)  1 WLR 1234 [House of Lords] 26 July 1966). The 1966 statement concluded that it was not intended ‘to affect the use of precedent’ in all other courts. (This summary is taken from what may still be the best short introduction to the subject: Precedent in English law, Cross and Harris, 4th Edition, Clarendon Law Series (1991).)
Thus, the doctrine of stare decisis. The aim is to keep the law as certain as possible, without making it completely static. It is unfair to go to court advised on one version of the law, and to come out with a judgement a day or so later only to find the judge has moved the goal posts completely.
In Davis v Johnson  UKHL 1,  AC 264 (an important case on domestic abuse, but also a leading House of Lords review of stare decisis), Lord Diplock approved the comments of his fellow law lord, when as Scarman LJ, he sat in the Court of Appeal in Farrell v Alexander  QB 345. As Scarman LJ he confirmed – a principle asserted many times – that the Court of Appeal must be bound by its previous decisions (at 371):
“I have immense sympathy with the approach of Lord Denning MR. I decline to accept his lead only because I think it damaging to the law in the long term… Consistency is necessary to certainty — one of the great objectives of law. The Court of Appeal — at the very centre of our legal system — is responsible for its stability, its consistency, and its predictability.”
Ratio of a decision; the court’s reasoning
The next question on precedent is what is the ratio of other decisions (including his own, in Mostyn J’s case) which a judge should follow? What is law (ie binding), and what a matter of discretion? In Part 1 it was explained that decisions on privacy of hearings are fact specific (A v British Broadcasting Corporation  UKSC 25,  1 AC 588); but such decisions must be predicated on a correct definition of the law to be applied to each set of facts. So what are the rationes of Mostyn J’s decisions in this area of law?
In W v M (TOLATA Proceedings; Anonymity)  EWHC 1679 (Fam),  1 FLR 1513 (25 June 2012), Mostyn J, obiter (in passing), defined the privacy position in family cases as:
“ My view is that the starting point in financial remedy proceedings should be that, if sought, a reporting restriction order in equivalent terms to the standard rubric [dealing with privacy on reporting restrictions orders] should be granted…. As the White Paper put it ‘families need to be confident that their privacy will be protected’. Or in the words of Stanley Burnton LJ [in Lykiardopulo v Lykiardopulo  EWCA Civ 1315,  1 FLR 1427] ‘parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected’…”
He continues, saying that in the rules, Parliament ‘has drawn a clear distinction between’ family and civil proceedings. ‘The former’ he says ‘are designated by the rules as private business; the latter as public business’ (at ). He concludes: ‘ Ultimately it is for the Government and Parliament to decide whether to extend those rules to non-marital proceedings between domestic partners’.
This is wrong. It is for the judges to decide, not for rule-makers. A reader of Part 1 will know that open justice is a matter entirely of common law, as explained by Toulson LJ (eg per R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court  EWCA Civ 420,  QB 618 (3 April 2012): decided three months before W v M but not referred to by Mostyn J). The common law says the same for all civil proceedings. It is therefore fundamentally the same for parties who are married or unmarried (they were unmarried in W v M). The court rules under which a case is proceeding – whether CPR 1998 or FPR 2010 – does not matter.
Further, Parliament has very little to do with rule-making: it is delegated to committees by statute (Civil Procedure Act 1997 and Courts Act 2003 ss 75 and 76) in the same terms for civil and for family proceedings. At common law there is not therefore the contrast Mostyn J draws between civil and family proceedings. But that said, nor can rules override the law (statute law, or common law: Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933).
‘A general rule of anonymity and privacy’
Mostyn J defined the law on privacy in family proceedings in L v L (Ancillary Relief Proceedings: Anonymity)  EWHC 2621,  1 WLR 1259 (27 July 2015). Perhaps this – at least for him – is the ratio around which his further decisions should coalesce. Unhelpfully, he refers the reader to his own book (which I do not have to hand as I write) to find out the ratio of his decision:
“ Accordingly, for the reasons that are set out in Financial Remedies Practice, 4th ed (2015), of which I, [with others] are the authors, at paras 27.38–27.63, it is appropriate for me to make an order which preserves the privacy of the parties….
 In this case… I was entirely satisfied that the general rule of anonymity and privacy should be respected and I therefore made the orders referred to above.”
“ … Mostyn J…, in common with many other judges of the Family Division hears financial remedy cases in private. He expressed his view contrary to that held by Holman J in [L v L (above) at] : ‘On the contrary, it is my opinion that the rule does incorporate a strong starting point or presumption which should not be derogated from unless there is a compelling reason to do so’.”
That there is a “general rule of anonymity and privacy” and that this “should be respected” is Mostyn J’s decision. It is that “that the general rule” should inform the courts’ decision-making on the facts of each individual case (A v British Broadcasting Corporation (above)). That is the law which Mostyn J should apply, and with which his brother and sister judges should have comity. And on the basis of that reasoning, in L v L Mostyn J refused the press’s application to report the names of the parties, and confirmed an earlier reporting restrictions (ie anonymity) order in that case.
If Mostyn J holds in July 2015 that the law is one thing, so it stays at puisne judge level. It is not only open to another judge at that level to find it says something else other than for clear reason (judicial comity). Nor is it for the judge whose definition of the law should guide others, to change that law: that is for the Court of Appeal on basic stare decisis principles.
Steadying the law in family proceedings
Clearly the law in this area does need steadying. A start can be achieved, surely, by taking account of all relevant aspects to privacy of CPR 1998 r 39.2(3) and FPR 2010 r 7.30(3)(c) as representing a codification of the common law by which all courts are bound? That is not to say that each only apply to proceedings which they concern (eg r 7.30 only applying to divorce proceedings). Each provide a codification or summary of the common law, and as such codification should always be followed.
And to conclude the adjudication exercise, the decision-maker applies that law (eg as summarised in CPR 1998 r 39.2) to the individual facts of the case and, through the prism of European Convention 1950 Arts 8 and 10 (Re S (Identification: Restrictions on Publication)  UKHL 47,  1 AC 593,  1 FLR 591), decides the outcome.
Featured image: Photo by Amina Filkins, via Pexels.