The case of Gallagher v Gallagher has hit the headlines, in relation to the right to privacy and anonymity within family proceedings. This case related to financial remedy proceedings arising from divorce.

The husband had applied for a reporting restriction order or alternatively an anonymity order, for the following reasons:

  1. His rights under article 8 of the ECHR (European Courts of Human Rights) were engaged.  It was his position, that the information being disclosed in the financial remedy proceedings was obtained under compulsion i.e.by force.
  2. A proportion of the final hearing was going to focus upon the valuation of a construction business to which he was a joint and equal share holder.  It was his concern that the disclosure of information relating to his business could have a detrimental impact on existing business relationships, enable competitors to obtain a significant advantage and potentially impact upon the commercial interest of third parties.
  3. Further the reporting of business information would affect the commercial interest of others and in this case his business partner.
  4. He was concerned that part of his evidence could be exploited by others and used to potentially prejudice his position in an Irish lawsuit that was being brought against him, and potentially expose him to criminal sanction including imprisonment.
  5. Finally, most of the evidence that was filed was done so by him in the belief that there was going to be a reasonable expectation that the anonymity would be preserved.

 

The husband’s application for the orders was refused by Mr Justice Mostyn who made clear the importance of transparency in family law cases. He referred to “the rule of Open Justice” being an ancient and deeply entrenched constitutional principal in this country.  Further he went on to say that the court rules in relation to family proceedings referred to them being held in private.  However, this meant members of the public, not journalists or legal bloggers.

The Judge did not feel the husband’s reasons were enough to trump the constitutional principal of open justice.  Further the fact that children could be indirectly identified in his view was not enough to trump open justice. He went on to make quite clear that this would mean that many cases would need to be then held in secret.

The judge concluded, that such orders can only be made in an individual case after conducting a balancing exercise between a person’s rights under the European Convention of Human Rights.

The changing approach of the courts to transparency may lead more separating couples to consider using out of court dispute resolution processes such as Collaborative Family Law or Family Arbitration in order to preserve the privacy of their family and their financial arrangements.

 

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