Everyone has a right to privacy but the public has a right to know how and why Judges make decisions. Should the default be that cases are reported on an anonymous basis or that anonymity should only be applied in selective incidents? The Family Court continues to grapple with the unenviable battle of open justice, a fundamental pillar of a fair and democratic society; and the right to an individual's privacy. Even the Judges cannot decide.
Not so much daggers drawn but more a polite tete a tete at high tea. That is how one may describe the different opinions of Mostyn J in Augousti v Matharu [2023] EWHC 1900 (Fam) and Peel J in Tsvetkov v Khayrova [2023] EWFC 130. But of course we shouldn't expect anything less of two of the leading judges in the land, with the former having retired this summer.
Augousiti therefore was Mostyn J's final judicial word on the topic: anonymity vs open justice.
Both judges reached the same conclusion, opposing anonymity in these particular instances, meaning their polite disagreement was more about their starting base. So what is the fuss about and does it really matter? Well, yes.
Without open justice, so an argument goes, how can one have faith in the sanctity of the courts or advise clients about what will actually happen at Court.
But equally, is it right that an individual's most personal details and financial information could be laid bare for all to see even in circumstances where they may have had no desire for their marriage to end and may have taken all reasonable steps to negotiate outside of the court process?
Mostyn J has long been of the firm view that anonymised judgments are unlawful. Not just wrong but actually against the law. In Augousiti he worked from a starting point that the judgment should not be anonymised and was considering the extent to which there should be any limited anonymisation or redaction.
Peel J, however concludes that anonymisation is not merely lawful but almost mandatory and was starting from the point of anonymity, and thus what details it was in the public interest to share when considering Tsvetkov. He referred to the decision of the Court of Appeal in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315 which he said was binding on him (and all other first instance judges).
Mostyn J disagrees with Peel J partly because (and forgive the overly simplistic distillation) the law has evolved since 2010, the year in which the Court of Appeal decision on which Peel J relies was handed down.
In Lykiardopulo the proceedings had been held behind closed doors before there was a rule change on 27 April 2009 allowing the press to report on cases they heard. So although the Court of Appeal judgment was handed down in 2010 it related to a case heard before a seismic shift in what the press could and could not report on. Mostyn J instead relied on s. 12 of the Administration of Justice Act 1960 and the House of Lords decision of Scott v Scott [1913] AC 417.
Anonymisation vs open justice is a multi-layered issue. The judiciary are often asking for an authority be that a higher court or Parliament to clarify what the standard approach should be, to avoid inevitable judicial divergence on the issue. However, with Sir James Munby and Messrs Justice Holman and Mostyn all now retired, these musketeers of open justice cannot continue to opine, at least from the Bench, on the subject.
Which does leave the question: who will take up their mantle or (in the absence of higher authority) will a leaning to anonymisation win?
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