Closed doors in public courts

pack of cards

In my last posting ‘£25 m mediation budget following the death of legal aid‘, I mentioned the case of W v M (2012)EWHC 1679 (Fam), with the forward thinking judgment from Mostyn J.

It was only after writing, that it occurred to the blogger that Sir Nicholas Mostyn‘s judgment could hold the key for a dramatic development for future legal services in England and Wales.

When an established and credible ‘private process of dispute resolution’ is available through mediation and private arbitration, why should our system of public justice ever work behind closed doors?

Perhaps now is the time for the former Presidents of the Family Division Mr Justice Potter’s 2008/9 vision and Sir Nicholas Wall’s endorsement, to become a reality? Maybe now parliament should be preparing to update the House of Commons Standard Library note?

Nicholas  Mostyn is not a stranger to this line of thinking. In M vM & London Borough of Sutton he lifted the injunction on the Sunday Telegraph columnist from reporting proceedings.

The current President, Lord Justice Munby is on record with even more radical views,

“Both principle and pragmatism demand that we open the family courts, that we drastically relax the present access restrictions.

“But affording access to the family courts is not alone enough. The answer, if I may be permitted to adopt the former Lord Chancellor’s language, is that we need both more people going into the family courts and more information coming out. Each of these is essential; neither alone is sufficient.”

“I am not talking merely about judgments which are thought to be reportable because of their perceived legal interest. Releasing for publication only those judgments which are ‘reportable’ means that the public obtains a seriously skewed impression of the system. What one might call ‘routine’ judgments in ‘ordinary’ care cases and private law cases should surely also be published – all of them, unless, in the particular case, there is good reason not to. The second point leads on from the first. It is not only High Court judgments that should be published in this way. Why should not County Court judgments also be published?”

More recently, on 22 February 2013 at the Family Law Bar Association dinner he said,

” I am determined to take steps to improve access to and reporting of family proceedings. I am determined that the new Family Court should not be saddled, as the family courts are at present, with the charge that we are a system of secret and unaccountable justice. Work, commenced by my predecessor, is well underway. I hope to be in a position to make important announcements in the near future”.

And today, we have new practice guidance in relation to public access to committals for contempt of court.

In W v M Sir Nicholas Mostyn said,

“Where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has also become available in financial remedy proceedings by virtue of the much-to-be-welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings also privacy can now be guaranteed”.

Does Sir Nicholas’ obiter sound the rallying call for imminent change?

‘For private proceedings, choose a private process. If you come to public courts, increasingly expect justice that is open to public scrutiny’.

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6 comments on “Closed doors in public courts

  1. […] readers by now will know of my views on the importance of mediation and private arbitration. You will also have read of my views about the relevance of an adversarial process in family […]

  2. The latest signal from Sir James Munby, President of the Family Division at para 45 http://www.bailii.org/ew/cases/EWHC/Fam/2013/4048.html

  3. bobby says:

    Mostyn cannot take credit for ‘this line of thinking’ since it was he who put in place the injunction in the first place -this leads to false reporting and credit he is not due!

  4. Arbritral awards to be given effect by family courts : S v S http://www.bailii.org/ew/cases/EWHC/Fam/2014/7.html

  5. […] With unacceptably escalating costs in adversarial court processes, coupled with the possibility of open justice through public courts, we are unlikely to continue to litigate many financial cases as we have done in the past. The […]

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