Appleton & Anor v News Group Newspapers Ltd & Anor

In ancillary relief proceedings heard in private, the trial court has power to make a reporting restriction order, even where the press may attend under the Family Procedure Rules. The implied undertaking protecting compulsorily disclosed financial information continues to operate after the 2009 rule change and applies collaterally to observing journalists. Any restriction must nevertheless reflect the balancing exercise under Re S. Privacy begins with substantial weight because the proceedings remain private, but publication may be justified by iniquity, waiver, extensive prior public disclosure, or other higher interests. The media may report the nature of the proceedings and information already in the public domain, but not confidential financial evidence or its detail unless the court releases it.

The petitioner and respondent were engaged in ancillary relief proceedings before Judge O'Dwyer at the Central Family Court. The press attended those proceedings. The parties sought restrictions on reporting, and the issue was referred to Mostyn J because the proceedings concerned financial matters and also involved children.

Mostyn J had made an interim reporting restriction order. He was asked whether the order should be lifted, modified or continued. He was not asked to determine whether Judge O'Dwyer should publish his judgment, or whether that judgment should be anonymised or redacted.

1. Power of the trial court. The court of trial has full power to make a reporting restriction order in financial remedy proceedings which are not “children proceedings” within FPR 25.2(1). Although the High Court alone may make orders restricting publication of information about children or incapacitated adults under PD12I, the trial court controls reporting of proceedings before it. If it considers such an order, the notice procedure in PD12I should be followed.
2. Continuing confidentiality. The 2009 rule change allowing press attendance did not abolish the core privacy protected by the implied undertaking. Ancillary relief requires exceptionally wide, compulsory financial disclosure. The undertaking continues to bind the parties and applies collaterally to journalists who observe the private hearing. The reasoning in Clibbery v Allan and the Court of Appeal’s confirmation in Lykiardopulo v Lykiardopulo remained applicable. The contrary argument recorded in Cooper-Hohn v Hohn was rejected.
3. Balancing exercise. Privacy is not an automatic trump. The court must balance privacy and freedom of expression under Re S. In ancillary relief proceedings, however, privacy begins with substantial weight because Parliament has preserved the private character of the hearing. Publication may nevertheless be justified by proof of iniquity, waiver, extensive prior disclosure in open court, or a compelling need to correct public misinformation, as illustrated by Lykiardopulo v Lykiardopulo, Blunkett v Quinn and Young v Young.
4. Application and order. The restriction on publication of financial information was continued. The parties could be identified because they were well known and their involvement in the proceedings was already public. The children were not to be named. The media could report facts already public, such as company ownership or property ownership, and could report that evidence was given about those matters, but could not publish the confidential content of the evidence. NGN was granted permission to appeal, with the time for filing extended.

This was a first-instance decision of the High Court (Family Division). The judge granted News Group Newspapers Ltd permission to appeal, extending the time for filing the appellant’s notice until 21 days after Judge O'Dwyer’s decision concerning publication, anonymisation and redaction.