Working together, splitting up and the right of privacy v the right of freedom of expression

The £100m divorce case of Lady Hiroko Barclay and Sir Frederick Barclay was unique in many ways, but the judge’s comments on the case about what should and shouldn’t be disclosed were particularly interesting, writes Louise Barretto, Head of Family Law at solicitors Bishop & Sewell.

Whenever a famous and rich couple divorce the media is likely to take a keen interest. In Lady Hiroko Barclay and Sir Frederick Barclay’s casethe Judge, Mr Justice Cohen, gave permission for a limited judgment to be published, having initially imposed a reporting restriction order, although as in the normal practice, he allowed publication of the fact that the hearing was taking place and that the parties could be identified.

The proceedings were heard in private in accordance with the Family Procedure Rules and were attended by a number of accredited media representatives as provided for in the rules.

Often the media will be prevented from publishing any reports on cases where there is a reference to or concerns that either of the parties’ financial information, whether of a personal or business nature, may be placed in the public domain. The Judge in this case was working to a very tight timetable and felt that if he allowed arguments on whether or not information was in fact ‘the parties’ financial information’ this would have meant that the case over ran the time estimate significantly.

No publication

On this basis the Judge said that there should be no publication of the hearing at all beyond the identity of the parties and their legal representatives.

Lady Barclay argued that the judgment should be published because whilst her husband may wish to maintain his privacy, she wished to exercise her right of freedom of speech. She said that neither right trumped the other, but that she didn’t want to be silenced about the way that her husband had behaved before and during the litigation.

Lady Barclay felt that the public had a right to know how her husband had behaved and that such behaviour had meant that his right to privacy had been removed. The media were also involved in this hearing, obviously wishing to be able to publish details of the judgment, and their argument was that the whole of the judgment should be published so that the public could understand how the court had reached its conclusion on the division of the assets and finances generally. Further parties to the hearing on privacy were the husband’s nephews who were concerned that publicity may affect their financial affairs. They had not seen the judgment but were concerned about privacy generally.

In cases where one of the parties has misbehaved a Judge may authorise publication without any redaction, sometimes the court may authorise publication of the fact that certain named parties are engaged in litigation but prevent publication of any information relating to the proceedings.

Financial remedy proceedings

In a lot of cases the parties’ confidentiality can protected by publishing judgments in an anonymised and redacted form but there are some cases where the facts may be so unique that this is not possible.

In financial remedy proceedings connected to a divorce the starting point is privacy. This is because the parties are obliged by the rules of the court to provide full and frank disclosure of all relevant financial matters and also because the reasons for the breakdown of a relationship and its consequences are very personal matters.

There is no corresponding public benefit to acquire this knowledge.

On the other hand, it can be argued that what happens in Family courts is a matter of public concern and that open justice is extremely important. So, there is clearly tension between these two ideals and this is normally overcome by publication of anonymised judgement.

In some high-profile cases anonymity or omitting certain sections simply can’t protect the parties. An example of this would be the divorce of Paul McCartney and Heather Mills. In the Barclays’ case the main argument between husband and wife was the extent to which the husband’s conduct had deprived him of the right to confidentiality.

In this case the husband was criticised for his behaviour in relation to ignoring orders and failing to produce documents or answering questions. He also ignored an order controlling the sale and the use of the proceeds of sale of his luxury yacht. Sir Frederick sold the yacht and used the money himself. The Judge regarded that behaviour as admissible.

Mr Justice Cohen reached the conclusion after balancing the right of privacy and the right of freedom of expression not to publish his ruling in full. But he agreed to release a short judgment in which he said he ordered Sir Frederick to pay Lady Barclay lump sums totalling £100m.

Sir Frederick agreed to pay her legal costs of £1.8m.

If you would like to find out more about the issues raised in this article or need advice concerning family and divorce matters more widely, please call me on 020 7091 2869 or or email lbarretto@bishopandsewell.co.uk

About Bishop & Sewell LLP

Bishop & Sewell is a long-established, full service Central London law firm – with an international reach – specialising in Personal, Property and Commercial legal matters. To learn more, visit www.bishopandsewell.co.uk

Photo by cottonbro from Pexels

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