Nowhere to hide
29 April 2002
"I thought that it was love, but I was no more than a sexual slave." This was the headline-friendly revelation of Glory Anne Clibbery, as delivered through the pages of the Daily Mail, that sparked the legal challenge which threatened - or promised, depending on your point of view - to open up the family courts to the attentions of the press pack.
It was a tabloid story par excellence featuring spurned mistress and former actress Clibbery and Ivan Allan, a racehorse owner and business associate of Alex Ferguson. Allan sought to overturn a decision in favour of his partner of 15 years that had prevented him from placing a gagging order to stop her talking about their relationship.
For family law practitioners, it was the equivalent of the recent rash of celebrity privacy cases, such as Jamie Theakston, Naomi Campbell and Garry Flitcroft (the Premiership footballer who had affairs with two women), where the courts had to balance a right to privacy with freedom of the press. In February, the Court of Appeal dismissed Allan's appeal and ruled that open justice applied to all courts and that the family courts were no exception.
According to Mr Justice Munby sitting at first instance, Clibbery went to the heart of the daily practice of the Family Division. But "much more fundamentally", he observed, "it goes to the very root of the proper administration of justice and of the rights of litigants to talk in public about what has happened to them in court".
"The big shock for family lawyers was that people had thought family cases heard 'in chambers' were private," says Richard Collins, a family law partner at Charles Russell, who acted in the case at first instance. "You couldn't just scurry off and sell your story to the press. That's why the judgment caused such unrest, because the historic way of thinking was so shaken up."
Dame Elizabeth Butler-Sloss, president of the Family Division, took a more measured view in the Court of Appeal in February. "The exclusion of the public from proceedings has objectively to be justified," she ruled. "It is not good enough for it to be said that we have always done it this way, so it has to be right. The principle of open justice applies to all courts, and in principle the family courts are not excepted."
However, the appeal judges suggested that the principle was not extended to cases involving children and those where a person's financial arrangements are being looked at.
Practitioners welcomed the reining in of the court of the first instance ruling. "A lot of people breathed a sigh of relief when she looked at it, because it pulled back some of the broader assertions of the Munby judgment," notes Collins.
The relationship between Clibbery and Allan ended in Spring 2000 when he asked her to move out of his Mayfair flat. She sought an order that she should be allowed to continue to occupy the flat on the grounds that they had been living together as husband and wife for 15 years.
Allen's evidence was that his ex-lover was one of a number of mistresses and that the relationship was a mutually beneficial arrangement, whereby he gave her somewhere to live and paid her money in return for sex. A hearing took place in chambers and the judgment was made in favour of Allan. Clibbery felt that she was portrayed as little better than a prostitute and went to the Daily Mail, which ran a double-page spread which quoted from Allan's forthright affidavit.
The Munby judgment set off alarm bells among many family law practitioners, who thought press intrusion would make many marriage breakups even more traumatic. For example, the chairman of the Solicitors Family Law Association (SFLA) Jane Craig noted last year: "It would be sad to think that this decision might undermine people's ability to resolve disputes in a conciliatory way."
Clibbery's lawyer James Stewart, who is head of family law at Reynolds Porter Chamberlain, expresses surprise at what he calls the "kneejerk" reaction of some lawyers. "We, as family lawyers, must adopt a less suspicious approach towards the press," he says. "We must recognise that a transparent court process is clear and safe and that 'publicity is the very soul of justice'."
It is a theme that another leading family lawyer endorses enthusiastically. The lawyer in question has just returned from court where a judge has made his client pay out £350,000 to his wife. His client was ordered to sell the matrimonial home and accompanying land to release funds. The man raised the money through a loan and, while he agreed to sell the house, he wanted to keep the land. The judge insisted that all the property must be sold.
According to that lawyer, this is an example of unjustified judicial interference in the private life. "If it was in public, one wonders whether the judge would have been so quick to have acted," he notes.
Stewart explains how the case of Hodgson v Imperial Tobacco (1998) - where Hodgson published details about litigation against the tobacco company - now applies in the Family Division. In Hodgson, Lord Woolf treated the term 'in chambers' as being the same as 'in private', and went on to hold that proceedings in chambers are not prima facie secrets and can be reported.
But the Court of Appeal judgment does leave family lawyers looking for clarification. "The definitions of 'chambers', 'private' - synonymous following Clibbery - 'secret', 'in camera' and 'confidentiality' need to be tightened up and the Family Proceedings Rule requires attention," Stewart argues. "Family lawyers, the press and court users all need to know where they stand, and it's clear that consolidating legislation would be useful." Lord Justice Thorpe, sitting in the Court of Appeal, called for government ministers to take a look at this area.
SFLA members David Burrows, a sole practitioner in Bristol, and Richard Sax, a family law partner at Manches, have been looking at the Clibbery legacy. Both welcome the balance struck by the Court of Appeal as fair-minded, but they also have concerns that practitioners have been left to deal with some residual uncertainty.
The basic rule is that all proceedings are to be heard in open court, and those that are not are the exception and should be justified. According to the Court of Appeal, justification arises in children and financial relief proceedings. Burrows believes that the justification for the latter category is not so clear-cut and "a little strained" when compared with the privacy of children proceedings that is already covered by statute.
He continues: "It would have been helpful if the Court of Appeal had gone on to list all types of family proceedings and say what is private and what's in between, given that we have quite a lot of pressure from groups such as Families Need Fathers to say that all proceedings should be in open court." The pressure group has been camped outside a number of judges' homes, including that of Butler-Sloss, in protest of a perceived failure to deliver on a key principle enshrined in the Children Act: that both parents should continue to play a part in their children's lives when the adults' relationship has broken down.
Sax points out that Clibbery leaves a question mark over information and documents voluntarily disclosed before the commencement of proceedings. "Quite often you'll be disclosing information where there aren't proceedings, and I think that might be a dangerous thing to do in certain cases - although it might be the decent thing to do," he says.
Marcus Dearle, a family law partner at Withers, welcomes the Court of Appeal putting the breaks on the first instance judgment "by outlawing the publication of financial information in ancillary relief proceedings, provided that the information had been disclosed under compulsion".
However, he is not sure as to how helpful all this academic debating is for the clients. "The public, at first blush, is uncertain about the significance of the ruling, and hours of debate among family lawyers about the meaning of compulsion that it has triggered only serves to confuse the layman even further," he comments. Dearle fears that such argument could plant the very idea of publication in the embittered spouse's mind. "Especially when it mightn't have been there beforehand, cutting across most family lawyers' bog standard advice to avoid publicity at all costs," he adds.
Dearle reckons that lawyers - "not surprisingly" - are already looking at the need for spouses to sign up to confidentiality agreements at the outset of post-breakdown negotiations to clarify that even voluntary financial disclosure must remain a secret. "All this will be a red rag to a bull for some spouses," he adds.