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Publicity of evidence given in cases part 3

We have been considering the reasons why material available for a divorce hearing might be incapable of being put forward in public. This is by reference to issues arising in the Mills-McCartney divorce. In the last two Friday articles we have considered some of the issues. This week we look at documents which are of themselves private.

The development of a right of privacy has been a recent feature of English law. Although following the same common law tradition, the United States legal system produced a wider privacy law than English law did. What has happened to change things more recently in English law has been the Human Rights Act 1998. That has put increasing emphasis on the provisions of the European Convention on Human Rights of 1950. That convention provides by article 8 that subject to certain legitimate forms of interference therein specified "everyone has the right to respect for his private and family life, his home and his correspondence". The application of this can clash with the right to free speech (article 10) but the impact and effect of such a clash is a matter to be considered on another occasion. There is no doubt however that the case brought before the European Court of Human Rights in Strasbourg by Princess Caroline of Monaco extended the impact of privacy law in convention countries. The court held that states were required to amend their law to provide rights of action for breach of privacy, which had a significant impact in English law.

However even before this extension, although not amounting to a general right of privacy, the courts did recognize actions for breach of confidence. Often these actions would concern commercially sensitive confidential information, but they also extended to family and personal relationships. This was made plain in the famous case of the Duchess of Argyll versus the Duke of Argyll. The Duchess of Argyll brought the action because she believed that secrets relating to her private life, her personal affairs or private conduct were about to be made public by the Duke. These were matters she said had been communicated to the Duke in confidence during their marriage and moreover had not previously been made public . She wanted to stop these details being revealed.

The fact that the parties had divorced did not affect the confidence. That was obviously right. Parties during a marriage understandably and legitimately believe that there are certain communications between them which are confidential and will be kept so. It would be a somewhat startling consequence of divorce if everything understood to be confidential, or which would reasonably be treated as confidential, could suddenly be made public. There are various strong public policy considerations in favour of maintaining that confidentiality.

This principle has subsequently been extended to other types of relationships, and the development of the law of privacy gives wider protection still. Either way however, it is quite clear that apart from all the other ways in which the court would be keen to preserve confidentiality on behalf of litigants in the divorce, the court will seek to restrain attempts to make public confidences entered into between the parties during their marriage. It is likely therefore for a whole host of grounds, that various material which Heather Mills has said she would like to have made public, is likely to remain private.

Michael J. Booth QC