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Scott & Anor v Scott
Factual and Procedural Background
The Appellant (the wife) petitioned for a decree of nullity on the ground of the Respondent’s impotence. At the joint request of the parties Judge Bargrave Deane ordered that the petition be heard in camera. A decree nisi was granted and later made absolute.
Several weeks after judgment, the Appellant and her solicitor, Attorney Braby, dispatched typed copies of the official shorthand notes of the closed-door hearing to the Respondent’s father, sister and one other person. Alleging that this breached the in camera order, the Respondent applied to commit the Appellant, Attorney Braby and his partner, Attorney Waller, for contempt and sought an injunction restraining further disclosure.
Judge Bargrave Deane held the Appellant and Attorney Braby in contempt and ordered them to pay the costs of the motion. The Court of Appeal (by majority) dismissed their appeal on the preliminary ground that the order was “a judgment in a criminal cause or matter”, from which no appeal lay under section 47 of the Judicature Act 1873. The matter then came before the House of Lords.
Legal Issues Presented
- Whether a judge of the Matrimonial Division had jurisdiction to direct that a nullity suit be heard in camera merely because the parties requested privacy.
- Whether dissemination of an accurate transcript of such a hearing constituted contempt of court.
- Whether an order punishing that conduct was made “in a criminal cause or matter”, thus barring a civil appeal under section 47 of the Judicature Act 1873.
Arguments of the Parties
Appellants’ Arguments
- The 1857 Matrimonial Causes Act — particularly sections 22 and 46 — mandates that evidence be taken in open court; the judge therefore lacked power to sit in private except in narrowly defined situations (e.g., wards, lunatics, trade secrets).
- Even if the order for a private hearing were valid, it ended with the trial; it did not impose perpetual secrecy on the parties, so distributing the transcript was not contempt.
- The contempt order was civil in character; consequently an appeal lay to the Court of Appeal.
Respondent’s Arguments
- The Ecclesiastical Courts had historically heard nullity cases privately, and that practice (via section 22 of the 1857 Act) continued in the Matrimonial Division.
- The Appellants’ circulation of the transcript violated the order and amounted to a criminal contempt, bringing the case within section 47 of the Judicature Act 1873.
- An injunction and punitive costs were appropriate to protect the integrity of private matrimonial proceedings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Barnett v. Barnett (1859) | Early post-1857 authority that matrimonial hearings should be public. | Used to support the contention that open justice is the default position. |
| H. (falsely called C.) v. C. (1859) | Full Court held it had no power to sit otherwise than with open doors. | Cited to undermine the view that judges possess a general discretion to exclude the public. |
| Marshall v. Hamilton (1864) | Illustration of the emerging but legally doubtful practice of private hearings. | Shown by the House to carry no binding authority. |
| D. v. D. [1903] P 144 | Suggested a broad power to hear matrimonial causes in private. | Expressly rejected as an over-statement of judicial discretion. |
| Andrew v. Raeburn (1874) | Exception for cases where publicity would destroy the subject-matter (trade secrets). | Distinguished; the present case did not involve destruction of property or secrecy of process. |
| Rex v. Clement (1822) | Contempt jurisdiction where publication interferes with pending proceedings. | Held inapplicable because the nullity suit had concluded before any publication. |
| Seaward v. Paterson [1897] 1 Ch 545 | Civil contempt for aiding breach of injunction is still appealable. | Relied on to show that not every contempt is “criminal” within section 47. |
Court’s Reasoning and Analysis
1. Open justice is the rule. All five Law Lords traced the principle back to common-law tradition and to sections 22 and 46 of the Matrimonial Causes Act 1857, which require ordinary matrimonial proceedings to be conducted in open court. Historical references to the Ecclesiastical Courts did not establish a contrary rule; in fact, once “publication” occurred, those courts generally sat in public.
2. Exceptions must be strict and principled. The Court catalogued the only accepted categories justifying exclusion of the public: (a) wardship and lunacy (parental jurisdiction), and (b) cases where publicity would destroy the very subject-matter (e.g., trade secrets). Mere embarrassment or mutual consent of the parties is insufficient.
3. The order for a private hearing was ultra vires. The evidence in the nullity suit was “brief and simple”; there was no necessity that justice would fail without secrecy. Consequently, the in camera order rested on a mistaken view of the law and could not curtail the ordinary right of parties (or the public) to discuss what passed in court after judgment.
4. No criminal contempt. Even if the order had been valid, breach would at most constitute civil contempt comparable to breach of an injunction. The motion to commit therefore arose in a civil, not criminal, matter; the Court of Appeal had jurisdiction and erred in declining it.
5. Application to the facts. Because the underlying order was invalid, the Appellants could not be punished for disclosing the transcript. In any event, their conduct occurred after proceedings had ended and did not impede justice.
Holding and Implications
Holding: The House of Lords REVERSED the Court of Appeal, discharged the contempt order of Judge Bargrave Deane, and ordered the Respondent to pay the costs at first instance, in the Court of Appeal and in the House of Lords.
Implications: The decision re-affirms the constitutional principle of open justice and confines judicial power to sit in camera to narrowly defined, necessity-based exceptions. It clarifies that civil contempt orders are appealable and that matrimonial litigants cannot by consent convert ordinary proceedings into secret tribunals. Although it does not create new doctrine, the judgment curtails a growing practice of privacy in nullity and divorce suits and strengthens public and press rights to report court proceedings once a case has concluded.
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