What’s Right To Write? Cooper-Hohn V Hohn [2014] EWHC 2314 (Fam) And The Implications On Media Reporting

This case considered the vexed issue of media reporting of family cases in England.

Practitioners in jurisdictions where proceedings are open to the public (and the press) may wonder what all the fuss is about. However, whilst open justice is an important cornerstone of the English legal system, most family law proceedings in this country have long been recognised as an exception to the rules.

Family law represents a 'special category' of cases: heard in private, with disclosure provided under compulsion and with the court adopting a quasi-inquisitorial role.

Accredited representatives of the media are permitted to attend financial remedy hearings, but what should they be allowed to report?

Should a couple's finances be 'fair game' because they are high profile individuals, or because of the size of their wealth? Should the veil of confidentiality which enshrines such proceedings suddenly be lifted at the court's doors? Does the media have to apply for permission to report, or is it up to the parties to apply for an injunction or restrictions preventing reporting? These were questions Mrs Justice Roberts found herself grappling with during Mr Hohn and Mrs Cooper-Hohn's 10-day final hearing to determine how the parties' wealth should be divided upon their divorce.

How a familiar problem came to a head

Two days in, and just before the husband was to start giving evidence, the Judge was taken off piste to hear arguments from Counsel for the media, and for both parties about what the press should be allowed to publish.

It was accepted by all that the law was unclear. The only certainty was the law's uncertainty, or the 'turbid waters' Mostyn J had referred to in W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam).

The Family Procedure Rules 2010 allow accredited members of the media to attend court, but those rules are silent on what they may report about what they hear.

There is no binding decision about whether the '1926 Act' (a one page statute restricting publication of certain proceedings) applies to financial remedy cases. There is also no clear law about whether the 'implied undertaking of confidentiality', which the parties owe to each other and to the court, should extend to the press.

The question of whether information heard in private proceedings, with the press present has 'entered the public domain' remains unanswered.

The case itself

The husband maintained that the very nature of financial remedy proceedings was...