Article first published in Wealth Briefing on 25 September 2014.
Media reporting of divorce financial cases is troublesome. It is difficult for the parties, who are often high-profile as well as high-net-worth, their advisers and the media.
Do wealthy parties, as the judge put it in this summer’s case of Cooper-Hohn v Hohn (the divorce of the billionaire hedge fund manager and philanthropist by his American chief executive wife), want their finances splashed in the newspapers on the nation’s breakfast tables the next morning? The answer is of course not, but in practice these days they rarely have a choice.
Traditionally, press members and the public were not allowed to cross the threshold of the court-room door in family law cases. But a new open door policy introduced in 2009 permitted accredited members of the media to sit in on family law cases. The brother of Diana Princess of Wales, Earl Spencer, together with his wife tried unsuccessfully to exclude the press from the court room when the new rules arrived. Simply being a public figure, the Court said was no justification to shutting the door to the media.
The trouble is deeper, however, than whether journalists can always come in to court. No-one is yet clear on how much they can actually report. The door is therefore ajar rather than fully open.
This all provides a recipe for confusion when the media want to report big-ticket high value divorce cases so it’s hardly surprising that Sir Chris Hohn tried to test the parameters.
In July this year his lawyers made an application for a ban on press reporting of his financial details which were necessarily on the table as part of the financial settlement of his divorce. The press were already aware of and had reported the basic facts of the marriage- vast personal wealth in excess of £1 billion – likely to make the divorce settlement the biggest in English legal history. The question was how much detail about his assets and company finances the press could report.
In the event the Judge (Mrs Justice Roberts) recognised there was a legitimate public interest in the case due to the Husband pleading exceptional contribution (he argued that his exceptional talent (“genius”) justifies an extra share of the assets over and above 50% which is often now the norm in English divorce awards since the House of Lords decision [White] in 2000). She refused to impose a “blanket ban” on the reporting of the case but prohibited coverage of certain “confidential and commercially sensitive financial information”.
The judgment referred to a balancing act which had to respect the right to a fair hearing of the parties, on the one hand, and also the right to freedom of expression which the press enjoyed on the other (both being enshrined in the Human Rights Act 1998). The Judge could see that the Husband might find it difficult to give full and frank evidence if there was free press reporting. She was therefore conscious, like others before her, of the need, for public policy reasons, to ensure that parties do give full, honest disclosure in private and that nothing should stop them from doing that.
She decided that the press could not report commercially sensitive details relating to Mr Hohn’s companies. So this restriction and a routine ban on reporting any details concerning the children have been applied. The press can however report the rest of the case.
The Court’s judgment is expected soon on the overall financial outcome. When released, it will also have to be suitably general on financial details and perhaps anonymised where necessary (although the judge was not prepared to guarantee that). Many of the Husband’s close business entourage have signed confidentiality agreements and it would be surprising if the Judge were to cut through those, in effect, with a very open judgment about his business dealings.
What really matters in these cases, is getting to the bottom of what the spouses are truly worth and what assets are liquid, or not liquid. Therefore judgments tend to be short on actual commercial details.
So what lessons can be learned from the Cooper-Hohn case to date? One newspaper trumpeted the July decision marks a major step forward in allowing greater transparency. However looked at the other way, in fact the Court said a basic protection against wide reporting undoubtedly does exist and blanket permission to report can be curtailed in certain circumstances.
There will, of course, still be pressure on parties to settle due to the ability of accredited press members to attend court and potentially report certain matters. This is particularly useful when a lawyer acts for the financially weaker party. Indeed, and presumably to try and drive home that tactical advantage, throughout the Cooper-Hohn v Hohn proceedings the Wife adopted the position that the press were free to report on the case without restriction.
In future cases where there is likely to be significant press interest, the wealthy party should apply for media reporting restrictions, as the Husband did in this case. It will only be an advisable application however where there is genuine commercial sensitivity at stake. Otherwise, the wealthier party may simply be heaping further unnecessary and unwelcome press attention on themselves. The problem for Mr Hohn, perhaps unavoidably, was that he focused further press interest on his case over the media reporting questions.
Once the application is underway it is still going to be a case-by-case decision for the Judge. Frustratingly for lawyers, the Cooper-Hohn v Hohn judgment did not in fact move the law forward. It probably could not, given the balancing act the court must adopt.