RB (Adult), Re (No 4)

Publication of a judgment handed down in private is not, without more, contempt of court where no statutory restriction applies. Proceedings concerning adults under the High Court’s inherent jurisdiction are not within section 12(1)(b) of the Administration of Justice Act 1960; that provision applies to proceedings under the Mental Capacity Act 2005 and specified mental-health proceedings. The Family Procedure Rules 2010 contain no relevant restriction. A standard reporting rubric is not an injunction, but its conditional permission and anonymity requirement are binding on anyone using the judgment. Breach may constitute contempt under section 12 where that provision applies. The proper remedy is an application to modify the rubric.

The proceedings concerned an adult lacking capacity and were conducted in the Family Division under the High Court’s inherent jurisdiction. Lord Justice Munby had previously given judgments concerning the substantive proceedings, permission to appeal and costs, each handed down in private without the conventional reporting rubric. The parties raised whether those judgments could be published or reported, whether judicial permission was required, and whether anonymity restrictions applied. The judgment determined the statutory and common-law framework governing publication of judgments in adult proceedings in the Family Division.

1. Publication of adult Family Division judgments. In the absence of a relevant statutory restriction, publication or reporting of a judgment is not contempt merely because it was given or handed down in private. That principle applied to proceedings concerning an adult under the High Court’s inherent jurisdiction. The restrictions in section 12(1)(a) of the Administration of Justice Act 1960 and section 97(2) of the Children Act 1989 concern proceedings involving children.
2. Section 12(1)(b). Section 12(1)(b) applies to proceedings brought under the Mental Capacity Act 2005, and to specified proceedings under the Mental Health Act 1983. It therefore applies to proceedings in the Court of Protection, but not to proceedings in the High Court under the inherent jurisdiction in respect of adults. The Family Procedure Rules 2010 contain no relevant restriction.
3. Effect of the rubric. In cases involving children, the rubric has two distinct functions. Its first part grants permission to report, while its second part makes that permission conditional on compliance with the stated anonymity requirements. A person cannot rely on the permission while disregarding its conditions. The rubric is not an injunction: it contains no penal notice and the procedural requirements applicable to reporting-restriction orders are not followed. Nevertheless, it is binding on anyone who uses the judgment, and disobedience may constitute contempt under section 12.
4. Remedy and caveats. A person wishing to publish material prohibited by the rubric should apply for its modification. The conclusion was confined to adult proceedings under the High Court’s inherent jurisdiction. The Court of Protection has a materially different statutory regime, including rules 91 and 93 of the Court of Protection Rules 2007, and ancillary-relief proceedings may be subject to other restrictions.

This was a first-instance judgment in the High Court. The judgment referred to earlier decisions in the same litigation, including [2010] EWHC 2423 (Fam), [2011] EWHC 112 (Fam) and [2011] EWHC 2576 (Fam).