Family arbitration is increasingly used as a private alternative to court proceedings in family law disputes. One of the attractions, apart from it being quicker and usually cheaper than litigation, is that parties to arbitration will not normally face the risk of their hearing taking place in open court, with members of the public potentially being present or taking place in closed court when the media might still potentially be in attendance, even if constrained in the matters they can report on.
This is especially important for high-profile clients who want their disputes understandably dealt with privately and confidentially.
In the context of family arbitration, article 16.1 of the Institute of Family Law Arbitrators (IFLA) Family Law Arbitration Scheme Rules states: “The general principle is that the arbitration and its outcome are confidential, except insofar as disclosure may be necessary to challenge, implement, enforce or vary an award (see article 13.3(c)) in relation to applications to the court or as may be compelled by law.”
It is clear that any application to the court for an order to reflect the arbitrator’s award will obviously require reference to the award itself, but the words “as may be compelled by law” have had little scrutiny, up until now.
However, in Rt Hon The Countess Karen Anne Spencer v Rt Hon Ninth Earl Spencer, Charles Edward Maurice Spencer [2025], Mr Justice Peel had to consider how the court should deal with an application by a party to disclose parts of an award for use outside the proceedings which the arbitration was directly concerned with. Earl Spencer and Countess Spencer agreed that the financial remedies application arising from their divorce would be decided by family arbitration. One of the issues in the financial remedies proceedings, however, was the potential liability the wife had to the husband’s partner, Professor Jarman, who had issued proceedings against the wife in the King’s Bench Division (KBD) for alleged misuse, by the wife, of Professor Jarman’s personal information.
Although the wife had defended Professor Jarman’s claim, the arbitrator made an award in the family proceedings which was based on the assumption that the wife would accept a formal offer (a Part 36 offer) made by Professor Jarman to settle the KBD proceedings. Although acceptance of the Part 36 offer would constitute a formal admission of liability by the wife, the arbitrator had assumed that the wife would accept the offer without an admission of unlawful conduct and that a statement in open court was likely to be agreed and read out in the KBD proceedings to confirm that. Accordingly, the parties agreed that certain parts of the arbitrator’s award would be disclosed to the wife’s and Professor Jarman’s respective media lawyers and to the KBD and that agreement was recorded as part of the award.
In time, the wife did accept the Part 36 offer. However, the content of the statement in open court could not be agreed between the parties’ media lawyers and there was therefore an application before the KBD to deal with that.
Although most of the arbitrator’s award in the family proceedings was converted to a financial consent order, the parts of the order relating to the disclosure of that award were not agreed and came before Mr Justice Peel in the Family Court. The wife sought orders permitting disclosure of more than had been agreed within the arbitration. This included her being allowed to disclose the full award to her media lawyers and to use the contents of the award not only in the KBD proceedings but also in any dealings with the media to “defend her reputation”. The husband resisted that application.
Mr Justice Peel performed a balancing exercise, noting that it was well established that arbitration proceedings are generally (i) private and (ii) confidential in that there is an obligation, implied by law and arising out of the nature of arbitration, on both parties not to disclose or use for any other purpose any documents prepared for, disclosed or produced in an arbitration. He also reminded himself that the wife’s article 6 rights (right to a fair trial in the KBD proceedings, article 8 rights (protection of personal reputation) and article 10 rights (freedom of expression) were also to be taken into account. Similarly, he reminded himself, that the husband’s rights were also to be taken into account, in particular articles 6 and 8 (both of which bear on the confidentiality of the arbitration which was intended to avoid publicity).
In balancing those various rights, Mr Justice Peel considered that he should ensure that the wife could fairly put her case in other proceedings and should ensure that other tribunals were not misled.
Having performed his balancing exercise, Mr Justice Peel determined that the disclosure of the identified paragraphs of the award, which had been permitted by the arbitrator, went as far as was necessary or justified to satisfy the wife’s rights. She was, however, allowed to disclose to her media lawyers and to the KBD proceedings part of an email from the arbitrator which post-dated the award. She was also allowed to disclose the whole of the award to her media lawyers, but on the basis that only the identified paragraphs could be used by them in the KBD proceedings, to be referred to in open court.
Mr Justice Peel further held: “To go beyond authorisation of the identified paragraphs, for that specific issue, in my judgment is not justified. It would disproportionately invade the essential confidentiality of the arbitration process to give the wife wide scope to rely on matters contained within the arbitration which were not authorised for disclosure and which are not obviously necessary given the disclosure which has already been provided for … As Counsel for the husband submitted, to permit expansion of disclosure as sought by the wife would drive a coach and horses through the confidentiality central to the arbitration process.”
Notwithstanding the above, which was quite a unique case in that the parties were named in the published judgment primarily due to the proceedings in the KBD brought by Professor Jarman, which were to be heard in open court, parties to family law arbitrations should remain confident that the general principle of confidentiality will continue to apply in the vast majority of cases.
If you have any questions or concerns about any family matter, family mediation, or family arbitration, please contact Emma Harte.