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BARCLAY V BARCLAY [2021] EWFC 40 - To Publish Or Not To Publish?

This recent decision of the High Court deals with whether permission should be granted to publish a substantive judgment in financial proceedings when an interim reporting restriction (RRO) had previously been made within proceedings.

Facts

Lady Hiroko Barclay (W) brought an application for financial remedy orders against Sir Frederick Barclay (H). These proceedings were heard in private (FPR r27.10). At the commencement of proceedings, the court imposed an RRO. Judgment in the substantive proceedings was handed down on 30th March 2021. The judgment was critical of H’s conduct.

The parties agreed that the award and parties’ open positions could be published. H opposed any further publication – noting his right to privacy. W argued that H’s conduct (noted within the judgment) had removed this right. The media argued that the judgment was of general public interest. The wider family were concerned about the impact that further reporting may have on their ‘financial affairs’.

Decision

The court sets out plenty of useful guidance and case law at paras [15] - [26]. Basic principles are identified as follows:

  1. Open justice is a fundamental principle of our constitution. The general rule is that hearings are carried out and delivered in public.
  1. There are exemptions to this rule – namely that family proceedings are usually conducted in private FPR 27.10.
  1. The fact that family proceedings are in private does not automatically prevent publication of what happens in family hearings - Administration of Justice Act 1960 and Clibbery v Allen [2002] Fam 261 paras [17] and [51]. 
  1. In financial proceedings, confidentiality attaches to financial disclosure. The recipient of financial disclosure is subject to an implied undertaking not to use it for any other purpose other than the proceedings. Any disclosure by a party of information arising from financial proceedings amounts to a breach of confidence and contempt of court, unless authorised by the judge.

In relation to the question whether or not to publish the judgment, the starting point (as identified by J Cohen) is H’s right to privacy, balanced against W’s right to freedom of expression – both rights protected under the ECHR. In most circumstances, the right to privacy in FPR will prevail (at [31]).  However, there are rare cases where the conduct of a party will disentitle him from protection against publicity – see the case of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 where the Court of Appeal reversed an earlier decision to publish an anonymised judgment. The Court of Appeal ordered disclosure of full judgment identifying the parties on account of H’s poor conduct, which included perjury.

J Cohen decided against publishing the substantive judgment in this case – noting H’s right to privacy. The court found that H’s behaviour did not go anywhere near the level of misconduct in Lykiardopulo or Veluppillai v Veluppillai [2016] 2 FLR 681 which would disentitle H to his privacy.