This article was originally published in EPrivateClient and can be accessed here.

Public or private? The divorce of Sir Frederick Barclay

The short judgment released in Sir Frederick Barclay’s divorce proceedings has made clear that anyone breaching court orders, or otherwise behaving poorly in divorce litigation, risks having details of their case made public.

The majority of cases concerning financial settlements on divorce are dealt with in private, and details are never made public. This reflects that these proceedings deal with intensely personal matters, and that publicising them would cause pain and embarrassment to the parties.

Whilst accredited journalists and legal bloggers are permitted to attend such hearings, they can only report on them in a very general way. Just as each party is not permitted to publicise any information disclosed by the other during the proceedings, neither are reporters allowed to make public confidential information which they hear in court, unless specifically permitted to do so.

In some cases, one party may seek the court’s permission for information to be made public. Such was the situation in the proceedings between Sir Frederick Barclay, the billionaire part-owner of the Daily Telegraph, and his wife of 34 years, Lady Barclay.

The parties had agreed that details of the award would be made public: Lady Barclay had sought £120m and was awarded £100m; Sir Frederick had offered a proportion of future loan notes and trust receipts, but this approach was not followed.

Lady Barclay sought to persuade the court that the full judgment in the case should be published. She relied on her right to freedom of expression, arguing that she should not be silenced in respect of the way Sir Frederick had behaved during the proceedings.

This was opposed by Sir Frederick, whose position was that his and family’s privacy must be prioritised. He argued that whilst he was a public figure, he had never courted publicity. He was concerned that publication could damage his wider family, particularly the parties’ daughter.

Press representatives also made submissions, arguing that it was in the public interest to know how the part-owner of a national newspaper interacts with others, given the influence newspapers exert on the public.

In determining the application, Mr Justice Cohen had to balance between the right to privacy and the importance of open justice and freedom of expression.

Drawing on the case of Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, the judge explained that, in rare cases, the conduct of a party disentitles them from protection against publicity. In that case, Mr Lykiardopulo had forged documents and lied to the court – an “extreme case involving an attempted perversion of justice”, which the Court of Appeal considered deprived him of the right to privacy.

Mr Justice Cohen accepted that whilst Sir Frederick’s conduct in the divorce proceedings had been “reprehensible”, it was not as serious as that of Mr Lykiardopulo. Nor did the judge consider Sir Frederick’s newspaper ownership relevant, as he had no evidence of the extent to which Sir Frederick influenced the paper’s content. On the other hand, Sir Frederick was a public figure “who should have been aware of the potential consequences of disobedience of court orders”.

The judge therefore arrived at a compromise reflecting his view that Sir Frederick’s behaviour “should not be allowed to pass completely under radar”: rather than the full judgment in the parties’ case being published, only the details of Sir Frederick’s poor behaviour, and the headline award would be made public.

In particular, Sir Frederick had “repeatedly” ignored court orders that he provide documents and respond to questions about the loan notes which constituted the vast bulk of his wealth, and which he claimed were unlikely to be honoured. Furthermore, Sir Frederick had ignored and directly disobeyed a court order intended to control the use of the sale proceeds of a luxury yacht, instead applying them for his own use. Serious as these acts were, they were acts of “omission rather than commission”.

Mr Justice Cohen’s judgment develops the law and makes clear that divorcing parties need to be warned – whether or not they are public figures – that failing to comply with court orders, or seeking to mislead the court, may result in details of their behaviour being made public.