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‘Everybody is infected by the cult of secrecy because that’s the way we’ve always done it’

Thursday February 29 2024. Catherine Baksi, The Times

Courts should be as open as a Charles Dickens novel, argues the
retired family division judge and top podcaster — otherwise nobody cares. Catherine Baksi meets him

Sir Nicholas Mostyn, 66, took early retirement from the High Court in 2023, three years after being diagnosed with Parkinson’s disease. With the exception of Sir James Munby, a former president of the family division of the High Court, Mostyn laments that “everybody else is absolutely infected by the cult of secrecy” because “that’s the way we’ve always done it”. He insists: “If you want a private decision, just sign an arbitration agreement,” adding “you’ve got to remember where you are — you’re not in a psychiatrist’s consulting room or a priest’s confessional box; you’re in a court”. His parents, who married young, had a turbulent relationship and divorced before going on to marry three more times each.

Family courts are “infected by the cult of secrecy” according to one former top judge, who argues that journalists should be able to name parties in matrimonial finance cases.

It is, he insists, important for the press to report family law cases so that the “public can see that the judges are behaving in a straight, fair and uncorrupt way” and understand how the law is being administered. However, it is the historic practice for financial remedy judgments to be anonymised up to the High Court.

In a 2015 ruling, Mostyn initially agreed with that position. But in another judgment seven years later, he said that he no longer held the view that “financial remedy proceedings are a special class of civil litigation justifying a veil of secrecy being thrown over” judgments.

“I changed my mind. I always say that the judge who I’ve overturned most is me,” says Mostyn, who has jokingly referred to himself as “the monarch of the mountainous principality of court 50”.

Reading the judgments of the House of Lords in the 1913 case of Scott v Scott — a case that he says is the “foundational decision about openness” — made him realise that he had got it “totally wrong” in the first case. In Scott, he explains, Lord Shaw of Dunfermline said that secrecy in court proceedings was the sort of thing that led to the French Revolution. “I thought, how can I be so stupid as to have fallen into the trap of secrecy? How could I have made that basic error?”

Aside from cases in the Court of Protection or those involving children, Mostyn says that anonymising the parties is “hopeless” because “journalists cannot publish stories about anonymous people because they have no traction with their readers. Imagine trying to read an anonymised version of Great Expectations — you wouldn’t get very far with Miss X lives alone and is rather eccentric. It wouldn’t work.”

As a judge, he admits that “I was not as loyal to the laws of precedent as people are expected to be”. Rather, in the tradition of Lord Denning, the renowned one-time master of the rolls, he says: “I always tried to get my judgments to follow the course of justice — and if precedent stood in the way, I tried to navigate a way around them.”

He never sought promotion to the Court of Appeal or higher, branding adjudicating in groups “collegiate judging” as tribunal members seek alliances to get colleagues to support their view.

Born in 1957 in Hitchin in Hertfordshire — not Lagos, as Wikipedia suggests — Mostyn was taken to Nigeria at the age of four, following the postings of his father who worked for British American Tobacco. His father’s career also took him to Venezuela and El Salvador, but the future judge went to prep school in Suffolk, where he suggests the mistreatment of children would be prosecuted today. “It was quite the worst school imaginable,” says Mostyn, adding that it makes the establishment in Evelyn Waugh’s novel Decline and Fall look “positively civilised”.

At a Catholic boarding school, Ampleforth College, Mostyn met his life-long friend, Edward Stourton, with whom he won a national debating competition. The pair decided they would each make a career from talking. “He went on to become one of the country’s most famous broadcasters and I became a barrister.”

Studying law at Bristol University and called to the Bar in 1980, Mostyn attributes his career in family law to his “inspirational” professor, Nigel Lowe, rather than the impact of his parent’s relationships. Good at maths and computer sciences, Mostyn took to computers early and used his skills to transform the handling of financial disputes.

Nicknamed “Mr Payout” owing to the huge sums that he won for divorcees, Mostyn was one of the most sought after barristers in the country, acting in the leading cases of the day. Representing the former Beatle, Sir Paul McCartney, in his divorce from Heather Mills was “an absolute thrill”.

Mostyn was diagnosed with Parkinson’s disease in 2020. “It was a blow,” says the judge, who developed micrographia, or abnormally small handwriting, and lost the ability to write. The endeavours of the neurologist Professor Ray Chaudhuri and help from judicial assistants enabled him to continue sitting until last year. Drug treatment has improved the “exhausting” tremors, but he has insomnia and night terrors when he does sleep.

After Stourton put him in touch with the journalist Rory Cellan-Jones, who also has Parkinson’s, the pair transformed their regular meetings with others, including the broadcaster Jeremy Paxman, into the successful podcast, Movers & Shakers, to share their insights living with the disease. 

On the back of that, Mostyn was approached by Charlie Falconer KC, a former Labour lord chancellor, and with the Labour peer Baroness Kennedy of the Shaws KC, to join the Law and Disorder podcast, analysing recent big cases.

Living by the motto of the Movers & Shakers team, “carpe diem”, Mostyn continues skiing, golfing, horse-riding and tennis.

“I’m packing in everything I can in a slightly manic way because I don’t know how long I’m going to be given to carry on enjoying things,” he says, adding that there is no time for being “unpleasant, argumentative or disputatious — you’ve got to enjoy every minute”.

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