Divorcing spouses are under a duty in England to use information given in divorce proceedings for the purposes of the proceedings only. The question of confidentiality has to be considered in two parts when conducting an academic exercise. The first is whether the information is actually confidential and the second is whether, if a party acts in breach, the court will impose an injunction. When dealing with high profile clients with the worldwide media clamouring for any snippet of information, then the stakes are higher and in reality it is almost impossible to achieve complete control or shutdown of information.
In 1990 the House of Lords considered the academic situation. By then, however, most of the world had read or heard of the contents of “Spycatcher”. That is why I say there is a world of difference between the academic and the real world.
It is extremely murky and unclear as to whether or not, and the extent to which, the court would grant an injunction if Paul McCartney asked them to – his only option if he can't get Heather Mills to sign up to a confidentiality agreement. In one decision, A v B plc (2003), the Court of Appeal initially granted an injunction to restrain one of two women selling a “kiss and tell” story. There was an element of blackmail – pay me some money, otherwise I will sell the story to the media. Though, admittedly, the parties were not married, the Court of Appeal rejected the continuance of an injunction as being an “unjustified interference with the freedom of the press".
There is a difficult balancing act in these cases. The media want to print a story. Understandable though it is that an individual may want to gag or control the media, in a sophisticated modern world, it is virtually impossible to obtain an enforceable worldwide shutdown of information or effective control of an individual’s ability in the future to speak out.
It is far more effective to reach consensus, agreement and, with an element of goodwill, attempt to agree future press releases. By all means fully commit to written confidentiality agreements and attempt to exert control by having active input to a story or a press release. Try to influence it, but you will not control nor contain the release of material.
Ultimately, if an individual is determined, then the media will inevitably find a way to place newsworthy material in the public domain.
There is a profound tension at work here. On the one hand, the understandable interest of an individual in a divorce to keep secret, private or confidential personal information for whatever reason. On the other hand, if another spouse wishes to tell and sell the story, tell it free of charge or the media place importance on releasing a story anyway then the story will out.
It did not take long to read in a national newspaper the supposed financial figure that Sir Paul McCartney might be prepared to offer following his “private” hearing in the High Court. Anyone with a determination, be it an individual, group of individuals, media or combination of these forces, will find it relatively easy to discover a route by which a story is told.
One final word of caution. Divorce hearings are customarily no longer anonymised, and reported decisions following a judgment of the court are there for all to see.
Warring couples should seriously consider settling cases with an element of goodwill, subject to conditions of confidentiality, and attempt to cooperate on press releases, rather than run the gauntlet of becoming fodder – the obvious target for a media feeding frenzy.
Andrew Breakwell