Full case report
Rapisarda v Colladon
Reference  EWFC 1406
Court Family Court (In Open Court)
Judge Sir James Munby P
Date of Judgment 8 May 2014
Reporting restrictions- financial remedy proceedings- Judicial Proceedings (Regulation of Reports) Act 1926- judicial discretion
Applications were made to dismiss a large number of divorce petitions and to set aside decrees of divorce, both nisi and absolute, obtained in consequence of what Sir James Munby described as a conspiracy to pervert the court of justice on an almost industrial scale.
At the outset of the final hearing on 9 April 2014, which took place in open court, an issue arose in relation to the possible impact on the reporting of proceedings of the Judicial Proceedings (Regulation of Reports) Act 1926 (“the 1926 Act”).
Whether section 1(1)(b) of the 1926 Act – which restricted the publication of judicial proceedings in relation to, inter alia, the dissolution of marriage/civil proceedings and the nullity of marriage – applied to the proceedings.
That section 1(1)(b) of the 1926 Act did apply to proceedings, but directing (under section 1(4)) that the media and others be at liberty to report on the proceedings as they say fit,
Sir James Munby began by reviewing the history and purpose of the 1926 Act (see - of the judgment). The aim of the 1926 Act was to strike a balance between the principle of open justice and the need to curb reports from the divorce court for the protection of public morality, Clibbery v Allan and Another  EWCA Civ 45 considered. Section 1(1)(b) of the Act was couched in terms designed to prohibit the publication of material which was scandalous, indecent, disgusting, salacious or titillating. It was clear that the purpose of section 1(1)(b), and indeed of the Act as a whole, was the protection of public morality and public decency.
The 1926 Act applied to the present proceedings, Moynihan v Moynihan (No 1)  1 FLR 59 applied. However, there was one legitimate means of avoiding the impact of section 1(1)(b), by relying on section 1(4)(b), a point hitherto never considered.
The language of section 1(4)(b) was quite general and excluded from the ambit of the Act the printing or publishing of any notice or report in pursuance of the directions of the court. It conferred an unfettered discretion enabling a judge to give directions in relation to any notice or report. The word “directions” was quite general and was neither defined nor circumscribed. It embraced any direction of the court, whether a direction that something was to be published or a direction that something may be published. Likewise, the other words in section 1(4)(b) were quite general. Although the word “report” no doubt included such things as a medical or other expert report to the court, whose publication the judge would then authorise, there was nothing 1926 Act to limit it to such documents. The word “report” was therefore apt to include a media report of the proceedings.
It followed that section 1(4)(b) recognised a discretion in the judge to make a direction authorising the publication by the media of a report of the whole of the proceedings, as opposed to the concise statement, allowed by section 1(1)(b)(ii), of the charges, defences and countercharges in support of which evidence had been given.
Publication by the media of a report of the proceedings concerned did not, given the nature of the proceedings, engage the mischief at which the 1926 Act was directed. On the contrary, there was every reason why the media should be free to report the proceedings, which had been conducted in open court and related to a conspiracy to pervert the course of justice on an almost industrial scale.
The decision will be welcomed by journalists. On the assumption that the 1926 Act may apply to ancillary relief proceedings, Sir James Munby advised that judges might, in future, wish to consider whether to exercise discretion in such cases under section 1(4).
Criticising the 1926 Act, the Judge questioned how the protection of public morality and public decency, or indeed any other public interest, was facilitated by subjecting the reporting of proceedings in open court of the kind he had heard in the present case to the restraint imposed by section 1(1)(b) of the 1926 Act; to the contrary it appeared to fly in the face of the fundamental rule in Scott v Scott  AC 417. Sir James Munby suggested that Parliament might wish to consider with an appropriate degree of urgency whether the retention of the 1926 Act on the statute book was justified. How Parliament responds to this call for legislative change remains to be seen.
Treasury Solicitor for the Queen's Proctor
More from 5RB
5RB is the pre-eminent set in the area for handling defamation, privacy, contempt and data protection matters. Interviewees praise the set for having great depth and quality of counsel, and note that it boasts many of the top barristers in the field. Get the lowdown here.
New 3rd Edition of The Law of Privacy and the Media, published by OUP. Further details here.