Up to now, journalists have been allowed to sit in private divorce hearings but they have, in most cases, been unable to report on most of what they hear. It has long-since been the position that matrimonial disputes are inherently private and, other than in certain specific circumstances, should not be freely reported.
For that position to be reversed, the media need to show that there is a genuine public interest in publishing anything they hear. This is not the same as what would be “interesting to the public” – a phrase you will often hear us say when protecting our clients’ private lives.
Sir Chris Hohn is currently in the middle of divorce proceedings. Sir Chris runs a philanthropic hedge fund reported to hold approximately $4.3bn,. His wife is seeking half of his net assets which have been estimated at $1.3bn. The case is thought to be the largest to have come before the English Courts.
The media applied to the court to reverse the blanket ban on reporting the court proceedings. The High Court yesterday upheld their application, despite Sir Chris disclosing 18 confidentiality agreements that were in place, although the decision may yet be appealed. The media are claiming this to be a victory for open justice. The position on the ground is not quite what is being reported.
The judge found that the public interest was engaged when it came to the issue of whether “special (non-monetary) contributions to the marriage” is inherently discriminatory; a matter in contention in this case. The fact that this case involves the largest sums of money the court has had to deal with before was not enough to engage the public interest.
Crucially, the media are still being restricted in what they can actually publish – they cannot report on financial information, whether personal or business, unless that information is already in the public domain.
The judge agreed that Sir Chris had a legitimate interest in keeping his financial affairs private – particularly as they might relate to shares in a public company that could be affected if the case was openly reported. It was also obvious that parties to a divorce could not be expected to divulge the intricate details of their finances if they knew that everything was at risk of being reported. The judge has called for the Court of Appeal to provide guidance on the reporting of financial proceedings in the High Court, an area where clarity is needed.
It is hard to tell whether yesterday’s judgment has really set a new precedent, as is being hailed by the media today. It might mean that all hearings are, in theory, reportable; but if they are still subject to broad restrictions imposed by a judge, as in this case to stop the more salacious details from being reported, has this really changed the landscape?