Clibbery v Allan (Allan v Clibbery)

A family proceeding heard in private is not, for that reason alone, secret or subject to a continuing prohibition on publication. Privacy at the hearing and confidentiality afterwards are distinct questions.

Continuing confidentiality may arise from statute, an effective court order, an implied undertaking attached to compelled disclosure, or the need to prevent prejudice to the administration of justice. Ancillary relief and children proceedings normally attract protection. Other family proceedings require a case-specific assessment, and any restriction must be strictly necessary and proportionate.

The respondent unsuccessfully applied under Part IV of the Family Law Act 1996 for an occupation order concerning a flat. The proceedings were heard in chambers under the Family Proceedings Rules 1991. No special confidentiality direction was made.

After the respondent disclosed information to newspapers, the appellant obtained interim injunctions restraining further disclosure. Munby J discharged them in Clibbery v Allan and Another [2001] 2 FLR 819, holding that a chambers hearing did not itself make the proceedings confidential.

The appeal concerned whether family proceedings may properly exclude the public, when private proceedings remain confidential after their conclusion, and whether an injunction should restrain publication in this case.

1. The appeal was dismissed unanimously and the injunction discharged. Dame Elizabeth Butler-Sloss P gave the leading judgment. Thorpe and Keene LJJ agreed with the result.

2. The principle of open justice applies to family courts. Nevertheless, the Family Proceedings Rules 1991 validly authorise specified family proceedings to be heard in private. The Rules were supported by section 40 of the Matrimonial and Family Proceedings Act 1984 and were not ultra vires. Munby J had stated the limits on private family hearings too broadly.

3. A private hearing does not, without more, make the proceedings secret or prohibit later publication. The court must identify a statutory restriction, a valid prohibitory order, an implied undertaking arising from compelled disclosure, or some other demonstrated risk of prejudice to the administration of justice. Derogation from open justice must be strictly necessary and proportionate.

4. Information concerning children is ordinarily protected by section 12 of the Administration of Justice Act 1960 and the applicable procedural rules. Information disclosed in ancillary relief proceedings is also protected by an implied undertaking. Those proceedings require full and frank disclosure, and the protection extends to documents, affidavits, witness statements and information derived from them, before, during and after the proceedings.

5. Proceedings under Part IV of the Family Law Act 1996 are not automatically secret. The court must examine the particular application, including whether it involves children, compelled financial disclosure, a statutory restriction, or another reason why publication would impede justice. The requirement in section 36(6) to consider all the circumstances does not invariably create the necessary compulsion. Thorpe LJ considered that a corresponding duty of disclosure was strongly arguable once section 36(6) was engaged, but it was not engaged here because the application failed at the jurisdictional threshold. Keene LJ agreed that section 36(6) did not invariably create an implied undertaking.

6. On the material before the court, the earlier case concerned jurisdiction and no sufficient ground for continuing confidentiality was established. The balance between privacy under article 8 and expression under article 10 was correctly struck in favour of publication. Even had jurisdiction to grant relief been established, an injunction would not have been appropriate.

1. Court of Appeal: The appeal in [2002] EWCA Civ 45 was dismissed unanimously and the continuing injunction was discharged.
2. High Court, Family Division: Munby J, in Clibbery v Allan and Another [2001] 2 FLR 819, refused to continue the injunctions and discharged the order previously made without notice by Connell J.
3. County court: His Honour Judge Krikler dismissed the respondent's applications under Part IV of the Family Law Act 1996. He held that section 36(1) conferred no jurisdiction because the parties had not lived together as husband and wife and the flat had not been their home.