Appleton & Gallagher v News Group Newspapers and PA 
In Appleton & Gallagher v News Group Newspapers and PA  EWHC 2689 (Fam) this matter came before Mr Justice Mostyn in the High Court of Justice, Family Division. His judgment was delivered in private. On the 14th September 2015, Mr Justice Mostyn was contacted by Judge O’Dwyer who was to sit at an ancillary relief hearing in the Central Family Court where he had received a joint application by both the Petitioner and Respondent for exclusion of the press in accordance with FPR 27.11(3).
Mr Justice Mostyn noted that the rules of FPR 27.11(3) and PD27B enable the court conducting the trial to exclude but, PD27B para 5.2.(b) allows the court to look at lesser alternatives such as reporting restrictions before an exclusion order is made.
Judge O’Dwyer considered this to be a decision of the High Court and therefore referred the matter to Mr Justice Mostyn which came before him on the 15th September 2015. As there was not enough time to examine the arguments put forward by Counsel for NGN, one of the interested parties, he made a holding order.
Between the 16th September and 19th September the case was held in private, with the press present, before Judge O’Dwyer who reserved judgment.
Mr Justice Mostyn observed that traditionally proceedings for ancillary relief had been held in chambers and only the parties and their representatives would be present, it being implied that the proceedings were private and would not be reported, otherwise, would be in contempt of court. He referred to the case of Clibbery v Allan in the Court of Appeal
- “The information provided by the parties is made under compulsion and extends to all aspects of their economic existence, past, present and future. The scope of disclosure is far wider than in a civil dispute”.
He continued that the rule change which came into effect on the 27th April 2009 was not meant to do away with the essential element of privacy in these matters, which privacy had always been implied, with the hearing taking place in chambers. The rule change had come into effect to demonstrate how proceedings concerning children and public law care proceedings operated. Sir Mark Potter had explained
- “whereas the media are now enabled to exercise a role of “watchdog” on the part of the public at large and to observe family justice at work for the purpose of informed comment upon its workings and the behaviour of its judges, they are unable to report in their newspapers or programmes the identity of the parties or the details of the evidence which are likely to catch the eye and engage the interest of the average reader or viewer.”
Counsel for NGN referred to the case of DL v SL which had been before Mr Justice Mostyn who had considered in that case that the 1926 Act, which had restricted the reporting of divorce, not only referred to divorce defended and contended in an open court but to the ancillary relief proceedings. As Mr Justice Mostyn observed, the 1926 Act allowed a summary of charges and counter-charges to be published as well as the judgment.
Mr Justice Mostyn considered that the intention of the 1926 Act was to deal with those divorces held in open court or ancillary relief proceedings and would apply to ancillary relief matters if the matter was transferred from chambers to open court. He emphasised what he had said in the case of DL v SL, was to allow reporting of the proceedings would be contemptuous of this Country’s observance to the 1966 International covenant where Article 14(1) makes particular reference to excluding a matrimonial matter from a public judgment.
On the 15th September 2015, Mr Justice Mostyn made orders prohibiting the media from publishing any report on this case until a further order is made and they must not:
- Identify any person or location except Counsel and Solicitors in the matter but they could report that the parties were engaged in ancillary relief proceedings at the Central Family Court.
- They cannot refer to any financial information, personal or business, in the witness statements and voluntary disclosure other than that information which is already in the public domain.
He observed that information about the parties and their partners now and in the past was readily available on the internet so it did not make sense for the press not to name them and therefore his order prevented the naming of any children only.
With regard to financial matters, he observed these were subject to the implied undertaking which binds all journalists and he saw no reason to deviate from this and in his judgment, the order must continue until Judge O’Dwyer hands down his judgment in the Family Court, whereupon, he will have to consider whether the orders carry on in respect of his judgment as to publication, redaction and anonymity matters.
He granted permission for NGN to appeal in the hope that the Court of Appeal would resolve the issues which he had raised in the case of DL v SL.