Allowing hacks into the melting pot of the family courts could have as yet unforeseen consequences, says Raymond Tooth and Jeffrey Nedas
On 27 April 2009, the hitherto locked doors of the family division were opened to accredited journalists. The press now have access to cases which were once “in private” and “in camera” and the corridors may now hum with the furious scribbling of professional biros.
Before, full details and even parties’ names would not be known unless the matter was being dealt with in the Court of Appeal, for example, Miller v Miller (2006) and Myerson v Myerson (2008) or if for some particular reason the Court decided not to “anonymise” a judgement, for example, McCartney v Mills-McCartney (2008).
Technically, only members of the media accredited by the UK press card scheme will have the automatic right to attend hearings.
However, the court possesses the power to allow those who write occasional items as well as members of the foreign media to also be present.
Strictly speaking, as the old confidentiality rules will continue to apply, the unbolting of the doors does not give journalists carte blanche to disclose parties’ personal details – including financial information.
However, notwithstanding the rules, it is most unlikely that parties with a public, city or commercial profile will want closely-guarded information about their financial circumstances to be in circulation anywhere – especially if their business and financial interests – disclosed and undisclosed are going to be dissected by the court or if they are going to be in some way discredited or exposed during the course of a final hearing.
Once information is known to journalists, it may, in practice, be difficult to prevent its publication.
Post-print sanctions may be available but, by the time they are involved, reputational damage and the dissemination of sensitive financial information may have already occurred.
There are some limitations in the scope of the rules. The new rules do not grant accredited journalists automatic access to “bundles”, which include experts’ reports.
However, that permission may also be granted at the court’s discretion.
So, apart from the inherent risks for the parties, where do the new rules leave solicitors and financial experts?
From the financial expert’s perspective, one can understand how a journalist could have his appetite whetted by listening to lurid disclosures of previously secret bank accounts, opaque off-shore entities and vast amounts of expenditure on lifestyles and girlfriends.
However, whether long technical debates on the minutiae of accounts and the finer points of earnings before interest and tax multiples, price/earnings ratios and discounted cash-flow spreadsheets will be quite so enthralling remains to be seen – it will on occasion test the endurance of journalists waiting for salacious details to be revealed.
On occasion reported judgements cite oral testimony given by an expert or make reference an expert’s report.
If the press is now going to be able to quote an expert perhaps experts will need to pay even closer attention to what they say and how they express their opinions.
From the lawyer’s perspective, the new media access makes it possible that a husband or a wife may see press presence as a catalyst which could be used to bring about a settlement or to obtain an even better one.
Rumour has it that, after the end of April, there have been a number of cases where the probability of press presence certainly had an influence on what had been bitterly contested and acrimonious cases until then, settling at the eleventh hour at the doors of the court.
Ultimately one cannot deny that the acid test of the new transparency rules will be the way in which parties approach the entire disclosure process.
It is possible that the risk of exposure at trial will encourage more openness and honesty en route.
If so, there may be an opportunity to settle cases at an earlier stage, with a consequential saving of time and money as well as of reputations and credibility.
The possibility of preventing headlines carrying the words “exposed”, “secret” or “sham” may persuade parties to consider using alternative dispute resolution where, of course, the rules of privacy and confidentiality remain unchallenged.
Collaborative law and mediation could now commend themselves much more readily as a means of resolving ancillary relief claims.
It will also be interesting to see whether, following the recent decisions on post nuptial agreements (MacLeod v MacLeod (2008)) and on pre-nuptial agreements (Granatino v Radmacher (2008)), there is any interaction between either of these types of agreement and the new press rules.
For example, if these agreements include confidentiality clauses in relation to both content and disclosure will those clauses be drafted so as to be wide enough to cover future divorce proceedings?
What is clear, however, is that the new rules are going to add yet another dimension to contentious cases. It has certainly not been a dull few years in the divorce world, but it looks set to get more interesting again in the years ahead.
Raymond Tooth is named partner at Sears Tooth and Jeffrey Nedas is forensic accountant and founder of Jeffrey Nedas & Co