Last year’s high profile divorce hearing between Nicole Appleton and Liam Gallagher highlighted the issue of media reporting on evidence given in financial proceedings.
Ms Appleton and Mr Gallagher argued that the media should not be able to report on the financial facts and figures that had been provided by them under their legal duty of disclosure. The media, on the other hand, made the argument that as the proceedings were not held in private, they should be allowed to report on any aspect of the proceedings that they wish to.
The Family Division made a judgement call that where the financial information had been compulsorily extracted, it was subject to an implied undertaking that it would not be published. This meant there were reporting restrictions on the press in that respect.
The common understanding is that such financial information is regarded as personal, private and confidential, and whilst the media are allowed to attend Court to ensure that the case is conducted fairly and to enable the public to be educated about the process of financial remedies on divorce, it does not necessarily mean that reporting on every financial detail that comes before the Court is necessary to achieve those objectives. So where there is a presumption that information will be treated in a confidential manner, this should extend to any members of the press who are in attendance.
The media is generally entitled to attend any Financial Remedy hearings and report on those proceedings (except in relation to the identification of any children under 18 years). Generally, the media does not attend Financial Remedy proceedings unless there is a particular issue being discussed or unless the parties are high profile, which would create public interest in the financial proceedings. It is possible to apply to the Court for reporting restrictions, but the Court has to weigh up the parties’ expectation of privacy and the media’s right to freedom of expression under the European Convention of Human Rights. There is no presumption that the media will be restricted in what they can report, and each case is assessed on its own merit.
If you are concerned about the media reporting in relation to your financial arrangements in divorce, there are a number of alternative options. Most significantly, if your matter can be settled using a form of alternative dispute resolution (ADR) rather than proceeding through contested Court proceedings; in ADR there is an inherent level of confidentiality.
The first form of ADR that can be very helpful for separating couples is mediation. Mediation is a process during which the couple provide disclosure of their financial situation and then liaise with an independent and neutral person (the mediator) to determine what their respective positions are and whether they can agree a way forward in relation to their financial affairs.
Another option is collaborative law, where both parties have a collaborative solicitor and agree to do all they can to negotiate and reach an agreement regarding the finances through working with that solicitor rather than through making an application to the Court. The collaborative process usually takes place through round table meetings between both parties and their respective lawyers, and can also include other relevant persons such as a family accountant if appropriate. In the collaborative process, both parties agree with their lawyer that if they cannot reach an agreement then they cannot continue to instruct that lawyer, and would instruct an alternative lawyer if they wished to go to Court. This puts an added level of incentive on the parties to reach an agreement in order to avoid future costs, and can help focus the minds of the parties towards settlement, especially if they know that what they say in the collaborative process could not be used at Court.
An alternative to the collaborative process is assisted negotiation without the collaborative principles being in force. In these circumstances, the parties could continue to instruct their respective solicitors if matters did have to proceed to Court. This means that there is less impetus on the parties to settle as there are many financial implications if matters do proceed to hearing, but if parties still wish to settle matters this can be done through solicitors’ negotiation. It is also possible to use a process of solicitor assisted mediation, where the parties can attend mediation sessions with their respective lawyers. This can be of assistance in particularly legally complicated cases, or in cases where there is perhaps an inequality of bargaining power between the two spouses.
Another form of Alternative Dispute Resolution is arbitration. Arbitration is when parties instruct an arbitrator (in essence, a private judge) to decide certain points for them. There are a number of benefits in comparison to Court proceedings. Firstly, the parties can choose their arbitrator instead of just being allocated a Judge set at the local Court. This means if there is a particular difficulty in the case the parties can consider a number of arbitrators to find one that may be specialised in a particular area. Additionally, an arbitrator will be consistent throughout any necessary arbitration sessions, whereas if the matter went before Court it is likely that several different Judges may have a hand in proceedings before a final decision is reached.
Arbitration often happens more quickly and can be more cost effective. The arbitrator needs only to consider their diary and the diary of the parties and their representatives, and this can go some way to avoiding the delays that are inherent in the Court process. Another significant benefit is that the arbitrator does not have to be asked to decide every outstanding issue between the parties. Arbitration can be used as a tool to decide perhaps one sticking point between the parties, and then the parties can return to mediation once that point has been decided to see if they can agree a settlement based on that.
Arbitral awards have recently been recognised by the Court as being (if not determinative) highly suggestive of how the parties’ finances should be approached, and if the party wishes to depart from an arbitral award it is for them to explain to a future Court why this should be the case. Perhaps the most important feature of arbitration in these circumstances is that private arbitration is, as it suggests, private. It is confidential between the parties and the media has no right to be present for any aspect of the arbitration process. If you have concerns about any of your private financial details being made known, engaging in arbitration may well protect your confidentiality whereas entering into Court proceedings will not necessarily do the same.
The Family Law Company has several experienced mediators, including Norman Hartnell, Jane Chanot and Jill Read-Brown, who can assist separating spouses in dealing with their financial arrangements (as well as arrangements for their children if appropriate).
Norman Hartnell is also a family arbitrator, and if you would like to explore the possibility of arbitration please do not hesitate to contact Norman or his PA Sarah o 01392 421777 who will be able to discuss the merits of arbitration in relation to your particular circumstances.