Katz Partners considers that the proposals do not strike the right balance between informing the public and preserving the privacy of litigants. We responded to the judiciary’s consultation on this matter and suggested an alternative approach that seeks to protect the privacy rights of parties in financial remedy proceedings.
The judiciary’s proposed changes are significant and can be summarised as follows:
Katz Partners considers that a better balance would be to allow journalists limited access to court documents but maintain anonymity of the parties in judgments and press reports. A summary of our submissions in response to the consultation can be found below.
Katz Partners’ submission
Katz Partners wholeheartedly supports the objective of codifying and clarifying the existing rules concerning the reporting of financial proceedings so as to achieve a better balance between the privacy of the parties and transparency/freedom of expression of the press. Although we do not believe that there exists the same level of public concern about the operation of the Financial Remedies Court as may be said to exist about public law children proceedings, improving public understanding of the operation of the courts in financial remedy proceedings is unarguably a desirable objective.
Our principal submission was that the proposed changes do not strike the right balance between protecting the privacy of litigants and informing the public. We submitted that the better approach would be to protect, as a general rule, the anonymity of the parties (in addition to their children) whilst permitting the publication of more detailed information provided it does not undermine the anonymity grated to the parties and children concerned. Our view is that where private information is concerned, an anonymised judgment enables the court to publish as much as possible about the case, thus enabling the public to have a much better idea about why the court acted as it did than would be the case if the applicant were named and no, or very limited, information about the matter in dispute was published.
We submitted that if journalists or legal bloggers wish to publish the identity of the parties to proceedings then, other than in exceptional cases, they should be limited to publishing a description of the issues in dispute in the proceedings. The exception should be in cases where there is a clear public interest in both naming the parties and allowing publication of the parties’ private financial information.
Our view is that denying parties anonymity in the way proposed does not contribute to greater transparency because:
It is likely to result in practice in less detail being provided in judgments than would be the case if anonymity were preserved because of legitimate concerns about infringing the rights of third parties (including children) or publishing commercial or price sensitive information for example; and
This regime is likely to result in fewer financial remedy cases litigating. In some cases, this will be because the parties use alternative dispute resolution to avoid the requirement to disclose their private information to the media. However, in other cases, a party may be blackmailed by the other party into entering into a disadvantageous settlement in order to preserve their privacy or the private and confidential information of others, such as family members or business associates.
Our response to the consultation also raised concerns in relation to the inevitable interference with the parties’ and their children’s Article 8 right to a private and family life and we commented on the proposed universal practice of routinely publishing unanonymised financial remedy judgments.
We anticipate the level of response to this consultation to be significant given the potential ramifications should the proposed changes be introduced. We look forward to seeing what the judiciary make of the responses and the changes to the proposal that may follow as a result.