May – Case Law Update 1 – reporting restriction order at the beginning of a case

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Each month, Justine, our Professional Support Lawyer, shares a round-up of key cases, with links to full information and an overview of learnings. Her role is dedicated to helping develop our family lawyers.

XZ v YZ [2022] EWFC 49 (Fam)

https://www.bailii.org/ew/cases/EWFC/HCJ/2022/49.html

Mostyn J imposes a short-term reporting restriction order at the beginning of a case which will endure until a full Re S balancing exercise can be undertaken at the end of the case, and endorses this as a useful procedure in many cases.

H made an application in a financial remedy case on a Form D11 for a Reporting Restriction Order (RRO) in advance of the final hearing. The RRO application was fixed to be heard on the first day of the final hearing which was listed for 7 days. W neither opposed nor supported the application.

H’s argument in support of the RRO was founded, inter alia, upon the following arguments:

  1. i) Article 8 ECHR is engaged by the reporting of information disclosed in financial remedy proceedings, in turn obtained under compulsion (this not being H’s application for financial relief);
  2. ii) A significant proportion of the final hearing would focus on the valuation of a business in which H is a joint and equal shareholder. Dissemination of information regarding that business “could sour existing relationships and enable his competitors, all of whom bid and compete for the same work, to obtain a significant advantage”;

iii) Reporting of that business information would also affect the commercial interests of third parties including, principally, H’s business partner;

  1. iv) Aspects of H’s evidence as to his approach to a prospective liability arising from his involvement in an overseas company could be exploited and used for collateral purposes and prejudice his position in those proceedings. The nature of the allegations could expose H to criminal sanction, including imprisonment; and
  2. v) Most of the evidence filed by the parties was done so with a reasonable expectation that their anonymity would be preserved, with steps including the reply phase being completed in January/February 2021, prior to the court’s analysis in BT v CU on 1 November 2021.

Mostyn J conducted the balancing exercise envisaged by Lord Steyn in Re S [2005] 1 AC 593. He found merit in some of H’s arguments but indicated that there were two unknowns in respect of that exercise, namely the extent to which the oral evidence would in fact prejudice H and related third parties

which would not be known until the evidence had been heard. Secondly the extent to which the press opposed the RRO in the name of open justice and the Article 10 rights of the public at large.

Therefore Mostyn J considered he should make an interim blanket RRO which would last until H’s application could be considered substantively during final submissions. This would hold the ring and preserve the tenability of H’s arguments so that he could decide what weight is to be attributable to the Article 8 ECHR arguments and conduct the Re S balancing exercise.

Mostyn J expressed the view that using a short-term RRP in this way could be a useful procedure in many cases. It would avoid wasting time at the beginning of a case and ensure that the balancing exercise is done on the best available evidence.

I’m Stowe’s Professional Support Lawyer. Our Lawyers got tired of researching all of the latest updates in family law, so I made a family law newsletter that shares all of the most interesting, relevant highlights in family law. I post a lot of it here, however, sign up below for the monthly newsletter, everything you need to know, in one place.

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