Private law rights of children: Part 1

20160418_164836-e1544888626602.jpgA child’s ‘views’ in the family courts


How many children know they have rights to ‘express their views freely’ in court proceedings – especially in family courts – where a court is making a decision which affects a child? And if they don’t know, how are they going to find out? Even if they do know about their rights, how do children get their views before the judge? What are the steps they must take to get what they want to say before the court?


This first post in a series of three will say a little bit about what rights there are for children. Part 2 will look at procedure for how rights – views – are dealt with as a court process. Part 3 will look at expression of a child’s views, wishes and feelings in practice, and what court procedure rules actually permits.


I don’t know what is taught about children’s rights in individual schools. As a family lawyer I have a good idea that children who are the subject of proceedings are told very little about what their rights are. Few judges, I suspect, go on the front foot to comply with the law and to find out themselves what a child’s views are. And I fear, many specialist family lawyers are not sufficiently versed in the intricacies of children law to know what they need to do to help children to apply in private law (Children Act 1989 (CA 1989) Pt 2) proceedings; or to be sure that a child talks to a judge when it is appropriate.


Children and Children Act 1989 Pt 2 proceedings


Children’s rights are likely to arise in private children proceedings (Children Act 1989 (CA 1989) Pt 2 and especially s 8). This will arise in three sets of circumstance explained in this article:


  • A child who wants to make a free-standing application, whether or not with representation (CA 1989 s 10(8); and as did CT in Re CT (below));
  • A child who wants to join in existing proceedings (with or without representation: eg Cambra v Jones (Contempt Proceedings: Child Joined as Party) [2014] EWHC 913 (Fam), [2015] 1 FLR 263, Sir James Munby P); or within existing CA 1989 Pt 2 proceedings (eg between the child’s parents), for the child to proceed alone or represented by the child’s own lawyer (eg Mabon v Mabon (below));
  • A child whose instructions to the child’s instructed solicitor conflict with those of the child’s guardian; and the child wants his or her part in the case to proceed on the child’s instructions (on analogy with FPR 2010 r 16.29(2)(a) for Pt 4 proceedings)


This article does not deal with CA 1989 Pt 4 proceedings (care and supervision orders; also called ‘specified proceedings’ (CA 1989 s 41(6)). There a children’s guardian and a solicitor for the child are appointed by the court (CA 1989 s 41(2) and (3)).


Many experienced children lawyers have difficulty in unravelling what type of children proceedings are involved in individual cases (eg Black LJ (now Lady Black in the Supreme Court) in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027: see Preface to my Children’s Views and Evidence by Bloomsbury Professional, 2017  (and see Chapter 6)).


A child’s ‘views to be expressed freely’


United Nations Convention on the Rights of the Child 1989 Art 12, as relevant to a child’s views on a case, says:


1 States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.

2 For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.


Charter of Fundamental Rights of the European Union (2000/C 364/01) Art 24, on a child’s views, echoes the position on ‘views’: ‘1 Children… may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.’


In Re D (A Child) (International Recognition) [2016] EWCA Civ 12, [2016] 1 WLR 2469, [2016] 2 FLR 347 (the child was seven) Ryder LJ identified CA 1989 s 1(3)(a) as a ‘fundamental principle’ English law: that is ‘the ascertainable wishes and feelings of the child concerned’ in a case must be considered by a court. This provision said Ryder LJ is ‘mandatory’; though the court has a choice (ie a ‘discretion’) on the extent to which views are taken into account (see [38]).




A child is therefore entitled to ‘participate’ in the proceedings which are about her:


[44] … The law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and our jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) CA 1989 like that in article 12(1) of the UNCRC 1989 relates to the weight to be put upon a child’s wishes and feelings, not their participation.


A child must have his or her views heard, but not necessarily followed. This was explained by Lady Hale of an eight-year old child in Re D (Abduction: Rights of Custody) [2006] UKHL 51, [2007] 1 AC 619 [2007] 1 FLR 961 where she said of D, now aged eight, who did not want to go back to Romania (as described by Lady Hale at [20]-[22]), how should his views be considered:


[57]… As any parent who has ever asked a child what he wants for tea knows, there is a large difference between taking account of a child’s views and doing what he wants…. There is now a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.


A principle of ‘universal application’


To ensure every child participates in proceedings about that child the court must ask: how is the child to be heard? In Isobel’s case – says the UN – she is entitled to ‘express her views’, but how does she go about getting her views heard by the judge? Ryder LJ helpfully described hearing the child’s views as a ‘fundamental principle of procedure’; but how does that principle operate in practice? In Re D [2006] (above) Lady Hale said:


[59] … Children should be heard far more frequently [in Re D it was in Hague proceedings]. The only question is how this should be done. It is plainly not good enough to say that the abducting parent, with whom the child is living, can present the child’s views to the court. If those views coincide with the views of the abducting parent, the court will either assume that they are not authentically the child’s own or give them very little independent weight….


Lady Hale considered the ‘three possible ways’ (at [60]) of hearing a child’s views:


  • An interview with a CAFCASS officer, who is not only skilled and experienced in talking with children
  • The judge seeing the child
  • Solicitor representation.


Of the last Lady Hale said (at [60]):


… Only in a few cases will full scale legal representation be necessary. But whenever it seems likely that the child’s views and interests may not be properly presented to the court, and in particular where there are legal arguments which the adult parties are not putting forward, then the child should be separately represented.


So, imagine a child aged twelve: Clara. She does not agree in different ways with each of her parents. She does not want to live with her father as is being proposed by him to the court. A court welfare officer is ambivalent as to whether she should stay with her mother or her father. Clara says she wants to live, and spend more time, with her mother. She is content to see her father. On the basis of what Lady Hale says she should be separately represented.


Part 2 will consider the child who knows of his or her rights, and what she – Clara – does about claiming them. Part 3 will look at what practical arrangements are made for children and how these fit with the Convention and Charter expression of the rights.

Domestic abuse and secret courts

samsung - august 2014 233

Why not open court for all domestic abuse hearings


This post is written in the light of the recent JH v MF [2020] EWHC 86 (Fam) (22 January 2020), Russell J (where the judge was highly critical of a family courts judge and his approach to lack of consent of a young mother to sexual intercourse in a domestic abuse trial). Others have written about various aspects of this case (eg Suesspiciousminds at ‘Bad feng shui and bad judgment’ and Civil Litigation Brief at ‘A decision that was “unjust because of serious procedural irregularity and multiple errors of law”: when decisions are not based on the evidence’ I intend to concentrate on open court – or ‘transparency’ – aspects of domestic abuse court hearings.


The question which arises from Judge Tolson’s behaviour relates directly to how domestic abuse cases are dealt with by all common law courts (not just family courts) in the future. The question becomes much more than one of ‘transparency’ (which in reality is a euphemism for how far secrecy is permitted in any court). For a variety of reasons (see also my ) it is important to be clear how abuse allegations are dealt with in the variety of courts which may be dealing with them.


We must now be asking of judges like Judge Tolson (who tried the JH v MF domestic abuse case at first instance) when they operate in secret: why we are surprised that some judges behave so badly; and, as in this case, why do they project an early 20th century – even 19th century – approach to rape and sexual offences? And – it must be added – Judge Tolson is not the first family judge I can point to who, over the past year, has taken judicial steps which are unlawful and who should properly be supervised by press and other lawyers if our family law system is to preserve any form of credibility.


And how many men (it will mostly be men) will go on acting again and again (with different partners) in a way which is abusive, if they know they will always be dealt with in secret by family courts?


Domestic abuse: which court, what procedure?


This leads to the question: how does our domestic abuse law and procedure apply on the same facts to three completely separate areas of law:


  • A possible criminal trial prosecuted by the police (open court: jury in the crown court)
  • Damages proceedings in the civil courts (open court)
  • Domestic abuse proceedings in the family courts (secret)


It must be recalled that the third of these – the domestic abuse in the family courts – might also be tied up also with private court children proceedings (as was JH v MF). And I cannot see that our legislators have done anything to try to put this procedural jungle right in the two – so far abandoned – domestic abuse bills which Parliament have started on since early 2017. (When I was first in practice the only way to get a domestic abuse (as it then wasn’t called) injunction for an unmarried partner was on the tort of assault (ie (2) above); but have we really come that far in those 40+ years?)


In 2020 all civil courts, including family courts, are familiar with the concept of separate trial of one or more issues. Domestic abuse is a separate issue from (say) what is to happen to children. There is no reason to try issues of domestic abuse at the same time as dealing with the welfare of children. For example, though in JH v MF the issues of domestic abuse arose in the context of a father’s claim concerning his child, there is no reason why the judge should not have dealt with domestic abuse as a separate matter, set down for a separate hearing.


From there it would be a short step to say liability in tort ((2) above: the harassment or assault damages claim) should be put over to another day for damages to be decided in open court (save if children are directly involved), and based on the findings of the preliminary hearing.


How a criminal trial can be dealt with is more difficult since the procedures in criminal courts – all this has to be dealt with now under three separate sets of procedural rules – are so different from those in civil (and family, where different) courts. Most starkly, the standard of proof (considered for domestic abuse family proceedings by Russell J at [55]-[58]) between civil and criminal, is different. This must be the subject of a separate post.


But on a post for ‘Transparency Project’ the question arises: if the issue of domestic abuse is – as it must surely be – dealt with as an issue separate from other family matters (such as children), why cannot it be dealt with entirely as a discrete or separate trial.? That trial can be – must be, surely? – in open court, as with any criminal aspect of the case. There is no reason at common law (see eg Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417) why it may not be. (It is accepted that in a family court the media could be present even though the hearing was in secret (Family Procedure Rules 2010 r 27.11(2)(f)); but that misses the point. It does not make the hearing public as understood by the common law and as happens in all other courts concerned on the facts alleged.)


Open court hearings


The main case – still frequently referred to – on open court hearings is a family case namely Scott (above). In that case, over 100 years ago, the House of Lords (judicial branch) said that all cases, except for a very narrow number of examples (including children cases) must be in open court. Why? Because it is important – and this is still the law today – that people be able to see and hear (if they wish) what is being done by judges in their name. This is so – subject to a few very narrow exceptions (which might include the vulnerability of a witness of party: though in open court their evidence could be by video-link) – even if a trial might cause embarrassment.


In Scott v Scott Lord Atkinson (one of the five judges) said:


The hearing of a case in public may be, and often is, no doubt, painful, humiliating, or deterrent both to parties and witnesses, and in many cases, especially those of a criminal nature, the details may be so indecent as to tend to injure public morals, but all this is tolerated and endured, because it is felt that in public trial is to found, on the whole, the best security for the pure, impartial, and efficient administration of justice, the best means for winning for it public confidence and respect.


Scott was a case about nullity of marriage on grounds of non-consummation. It was up there in terms of embarrassment; but still, in 1913, it should be public (though would not be today). The point is, to balance any humiliation with the public good of trials being open. Open trial must normally take priority. And, given that on the same facts, a case will be heard in public if for damages and criminal, but in private if on the application of a complainant. Where is the logic of that?


And if Judge Tolson had not sat in secret, it is important to reflect that his decision might have been different (though publicity did not deter him from brushing off Mrs Owens’s complaints as to her husband’s alleged behaviour: Owens v Owens [2018] UKSC 41, [2018] AC 899, [2018] 2 FLR 1067 when it ended in the Supreme Court). An open court hearing might have encouraged him to ensure disposal in accordance with Lord Atkinson’s ‘pure, impartial, and efficient administration of justice’? Who knows?…


Now is the time, surely – especially with a domestic abuse bill somewhere in the offing – to challenge the question of where and how openly domestic abuse cases are to be tried?


David Burrows

23 January 2020



Potential for conflict and marriage breakdown


An ‘amicable’ financial settlement


In ‘An amicable divorce and financial settlement’ I considered the decision of Mostyn J in JK v MK & Anor [2020] EWFC 2 (20 January 2020). I concluded my post:


The question remains: does this apply to mediators and lawyers who act for both parties in seeking for them a consent order or other agreed disposal of an issue in family proceedings? This must be considered in a separate post.


There is a prior question to this: was Mostyn J’s assessment of the ‘position of conflict’ in which amicable (lower case title) found itself sustainable; for he declared that: ‘[21] … a declaration should be made that amicable is not placed in a position of conflict of interest by acting for both parties under the terms of its business model’. He gave as his reasons for this view as follows:


  • Solicitors commonly act where, for example, they are instructed by divorcing parties to deal with sale of a jointly owned property (at [17]);
  • That like solicitors amicable was likely to be in a fiduciary relationship with its clients; but Mostyn J specifically said he did not need to ‘decide the point’ ([18]-[19]); and finally
  • Amicable had a system of warnings or ‘red flags’ which indicated there might be a conflict.


The Queen’s Proctor took the view there was no conflict. There was therefore no real adversarial issue on this point. But surely the question is not as simple as the approach of the Queen’s Proctor. The example Mostyn J took of conveyancing for a divorced husband and wife has no conflict if the parties agree the price; just as both parties to damages proceedings could be jointly represented on the issue of a consent order for settlement of the claim. Few lawyers would safely act on that settlement unless they knew the lay claimant had independent advice on the amount of damages.


Potential for conflict


The point which was not considered by Mostyn J was the inherent conflict in any given piece of litigation. Because of the terms of Matrimonial Causes Act 1973 (MCA 1973) s 25 – which Mostyn J does not mention – there is a conflict inherent in any marriage breakdown. The court must consider ‘all the circumstances’ of the case. It must consider and balance the various aspects of each parties’ finances and the welfare of any children (there were none in JK v MK), especially assets available to them (none again, it was said), income and pensions (of which there is no mention). And it must do all this, whether or not a couple agree their settlement (Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813; Harris v Manahan [1997] 1 FLR 205, CA).


A sense of proportionality must be retained. Where childless couples have been married for only two years and have equivalent finances, a consent clean break application may often be uncontentious. But to cite this case as authority for other than the most rudimentary finances and to say there is no need then for independent advice, risks real potential for disaster for a couple; and perhaps a negligence claim against a joint adviser (whether a solicitor, mediator or ‘amicable’ itself).


The question is not whether there is any conflict. Where couples agree (as here) there is – in fact – none. The test is, is there potential for conflict; and here, by definition, and as a result of MCA 1973 s 25, there is always potential for conflict when a marriage – indeed when most couples’ relationship (though s 25 does not come in where couples are unmarried) – breaks down.


Mostyn J cites, but does not quote, para 6.2 of the Solicitors’ Regulation Authority Code 2019. In full this says (SRA Code is written in its irritating Kitchener style: ‘you’ means a solicitor):


You do not act in relation to a matter or particular aspect of it if you have a conflict of interest or a significant risk of such a conflict in relation to that matter or aspect of it, unless:

the clients have a substantially common interest in relation to the matter or the aspect of it, as appropriate; or

the clients are competing for the same objective, and the conditions below are met, namely that:

  • all the clients have given informed consent, given or evidenced in writing, to you acting;
  • where appropriate, you put in place effective safeguards to protect your clients’ confidential information; and
  • you are satisfied it is reasonable for you to act for all the clients.


The third of these conditions is covered by the amicable ‘red flags’ (explained in the earlier post); and the second is not applicable. But ‘informed’? Surely this must mean that someone independent – save in the most basic case – must have advised independently?


Mostyn J and the meaning of ‘conflict of interest’


‘Conflict of interest’ is defined as: ‘a situation where [a solicitor’s] separate duties to act in the best interests of two or more clients in relation to the same or a related matters conflict’.


Mostyn J did not consider what ‘conflict of interest’ means in the context of MCA 1973 s 25. As I see it, he should have decided this case on its facts only, and said that for this couple there may have been no conflict. He should have mentioned – at least – MCA 1973 and have pointed out that in the vast majority of matrimonial financial relief cases there is, by definition, the potential for conflict. In consequence, ‘informed consent’ in the majority of cases must demand that there be advice that independent legal advice be obtained. Only a tiny minority of childless couples are likely to be able – fairly – to rely on services such as those provided by amicable (or the equivalent from mediators or lawyers) without a second opinion being urged strongly to be obtained.


This is not special pleading for matrimonial lawyers. It is what potential for conflict and MCA 1973 s 25 demand.


David Burrows

22 January 2020

An amicable divorce and financial settlement


Assistance with preparation of a consent order


The extent to which a non-lawyer (called ‘amicable’ – all lower case in this case) can help a couple jointly to prepare and file a consent order application has been explained and approved by Mostyn J in JK v MK & Anor [2020] EWFC 2 (20 January 2020). He concludes his judgement


[46] The declarations [to be explained further] made in this case relate only to amicable [lower case: the company which assisted JK and MK]. Other online divorce facilitators (and there are many) can only rely on them if their business models are virtually indistinguishable from amicable’s.


How apt this comment is and the extent to which what amicable did can be replicated by mediation services – where they help couples jointly to reach agreement – will be considered in a separate post.


JK and MK were married in 2015. They had no children and separated in December 2017. They had no capital assets. Each was earning. They wanted a clean-break financial relief order. They approached “amicable” (the trading name of E-Negotiation Ltd, and which is always written in lower case) who helped them prepare divorce papers. amicable did not need to help the parties with finance negotiations, already agreed by them. amicable drafted the order using the relevant Standard Family Orders precedent and Form A.


‘amicable (is this the first time a judge has used lower case letters to start a paragraph?) helped the couple to prepare the statement of information for a consent order in relation to a financial order and to prepare a joint statement regarding legal responsibilities and disclosure of assets which was signed by both parties. This latter document is not required by the rules, but ‘I can see that it would be extremely helpful in enabling the court to scrutinise and to understand the net effect of the proposed consent order’ (see [3]), said Mostyn J. amicable charged for all this.


The court raised the question that ‘amicable was placed in a position of conflict of interest in acting for both parties’ (see [6]); and that ‘amicable [was] doing things that are forbidden to non-lawyers under the terms of the Legal Services Act 2007’. These questions were listed before Mostyn J and the Queen’s Proctor invited to intervene (Matrimonial Causes Act 1973 s 8). On Mostyn J’s direction amicable was joined to seek a declaration (though it is not clear from where he derives his power in the family court to make a declaration: he refers to it as from Senior Courts Act 1981 s 19(2)(a)).


Conflict of interest?


At [13] Mostyn J records Kate Daly, the founder of amicable (set up in 2015 following her own expensive and acrimonious divorce), as saying in her witness statement:


The desire to help people navigate their divorce positively, to improve access to justice (for the many not the few), and to avoid the emotional pain I and my family had experienced, drove me to investigate an alternative way to sorting out divorce and separation.


But did this aim to help both parties and to avoid being engaged in the conduct of litigation, even so, raise any question of a conflict of interest? The Queen’s Proctor thought not:


[17] The first and main concern that has been raised is that there is a conflict of interest for amicable to act for both parties. This concern is agreed by all to be unfounded. Specifically, the Queen’s Proctor is fully satisfied that no such conflict of interest arises. Joint instruction of solicitors happens frequently in divorce cases. Consider a consent order which provides for a jointly owned property to be sold. The parties will routinely jointly instruct a firm of conveyancing solicitors to deal with the sale….

[18] It is trite, where a solicitor acts for a client, that a fiduciary relationship arises. Where a solicitor acts for two clients, then, as a fiduciary, she must not act with the intention of furthering the interests of one client to the prejudice of those of the other. Thus, rule 6.2 of the current Code of Conduct for individual solicitors specifically permits solicitors to act for clients jointly where they have a substantially common interest in relation to the matter or the aspect of it, or where they are competing for the same objective.


amicable had a system of warnings (‘red flags’) to alert them when to refer on to solicitors (eg domestic abuse, alcoholism, suggestions of non-disclosure). In the light of his findings Mostyn J was willing to make a declaration (at [21]): ‘that amicable is not placed in a position of conflict of interest by acting for both parties under the terms of its business model’.


No violation of Legal Services Act 2007


But what of any violation of Legal Services Act 2007 s 12? Was what amicable were doing a ‘reserved legal activity’. Literally interpreted the Act might be said to apply to any legal document; but such ‘literalism’ must be avoided (see eg Lord Steyn at [19] in Sirius International Insurance Co v FAI General Insurance Ltd & Ors [2004] UKHL 54, [2004] 1 WLR 3251). Mostyn J held that the documents did not ‘violate’ the 2007 Act and declared accordingly. He suggested that the Family Procedure Rules Committee might want to consider an amendment to Form D8 accordingly.


The question remains: does this apply to mediators and lawyers who act for both parties in seeking for them a consent order or other agreed disposal of an issue in family proceedings? This must be considered in a separate post.


David Burrows

21 January 2020

Mr Boddington and an abbreviated lunch in Coventry


Administrative law and the family courts


This post started from the relatively mundane fact that courts – especially in family proceedings – have for a long time adopted the practice of directing people to turn up an hour early for their hearing. I always doubted that anyone – court service (HM Courts and Tribunal Service) or a judge – had power to do this; but I have never researched it. Now I am told that, in parallel with judges saying ‘lunch means lunch’ (ie one hour for lunch) a bench in Coventry on 14 January 2020 have insisted that they would take a case at 1.30 pm as parties and advocates were all directed to attend by 1pm for 2pm hearing, they (or their clerk) said.


Except for the individuals concerned in Coventry, this may all seem a little trivial; but it masks two more serious points:


  • Does the court, or HMCTS, have the power to do what it orders a party (B) to do; and
  • If B doubts the court or HMCTS has such powers what is to be done about it?


I fear that family lawyers, despite their training and instincts, are a submissive breed when it comes to checking law. They assume that because a case says something the judge is right (many examples could be cited for this sad assertion). But, if the research has been done and a lawyer thinks the courts are wrong, or a case has not been correctly decided or – more importantly for what follows – the lawyer thinks delegated legislation is wrong: what do you do next?


Delegated legislation


As in so many aspects of life, family law is governed by delegated legislation and, in many cases, sub-delegated legislation (practice directions, practice guidance, protocols etc: see Wyatt v Vince and other cases mentioned below). Procedure is regulated by rules (mostly Family Procedure Rules 2010 (FPR 2010)); costs by CPR 1998 rr 44, 46 and 47; and, for example, legal aid practice and child support confronts us with a variety of regulations. And the procedure rules are supplemented by practice directions (as explained by Hale LJ in Re C (Legal Aid: Preparation of Bill of Costs) [2001] 1 FLR 602: my only case before Hale LJ in the Court of Appeal). But what does a party to court or tribunal proceedings do if that party thinks the rule or regulation – and even more so, any sub-delegated legislation – is outside the powers of the body which has made it?


This question is raised at a time when, in the past three years, courts at the highest level have said parts of the practice directions which accompany FPR 2010 are wrong:


  • In Sharland v Sharland [2015] UKSC 60, [2016] AC 871 [2015] 2 FLR 1367 the Supreme Court (at [41]) agreed with Sir James Munby P that PD30A para 14,1 is ultra vires (ie outside the powers of the rule-makers, a committee chaired by Sir James). That paragraph has been rewritten.
  • In Wyatt v Vince [2015] UKSC 14, [2015] 1 WLR 1228, [2015] 1 FLR 972 PD4A para 2.4 on striking out claims was described by Lord Wilson, as politely as he could, as an ‘unhelpful curiosity’ (at [25]) and has now been revoked.
  • In Re a Ward of Court [2017] EWHC 1022 (Fam), [2017] Fam Law 725, Sir James Munby P said, in relation to a ward being interviewed, that FPR 2010 PD12D was wrong and should be corrected.


Substantive law: statute and common law


So what is substantive law and how can it be applied to the above questions? Substantive law consists of statute law and common law. Much of court procedure is defined by the common law, codified by the rules. Two examples will illustrate this: the open court principle is common law and is explained in a variety of case law. Exceptions to it – when the court may sit in private – are defined by the common law, but are also set out as a list in Civil Procedure Rules 1998 r 39.2(3). The ‘implied undertaking’ as to confidentiality of documents disclosed by compulsion now summarised in CPR 1998 r 31.22. In general terms these common law rules apply also to family proceedings.


Common law can only be changed by statute; and, in the case of fundamental principles like the open court principle, by statute in clear terms (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328). This principle of English law was mentioned in R (on the application of Miller) v The Prime Minister [2019] UKSC 41 (24 September 2019) where – referring to the common law and to constitutional law principles – the Supreme Court said:


‘[40] … We have already given two examples of such principles, namely that the law of the land cannot be altered except by or in accordance with an Act of Parliament, and that the Government cannot search private premises without lawful authority…. Such principles … include principles concerning the conduct of public bodies and the relationships between them. For example, they include the principle that justice must be administered in public (Scott v Scott [1913] AC 417), and the principle of the separation of powers between the executive, Parliament and the courts ([R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513] 567-568).’


Procedural rules and the law


It follows from the above that a rule – being neither statute nor common law – cannot change the law. Rule-makers make rules which regulate how the law is applied; they do not make the law itself. This was explained by Lady Hale in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and much the same was said by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75). In Dunhill v Burgin Lady Hale said:


[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210 [per Lord Denning MR].


To the question ‘What then are the powers of the Rule Committee?’ Lord Denning MR in the Grosvenor Hotel case (at 1243) replied ‘They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land.’ What Lady Hale, Lord Denning and Buxton LJ say applies to any procedural rules, including FPR 2010. Substantive law can only be changed by Parliament or the judges (common law). Save where they are given the power expressly by statute rule-makers cannot change the law.


So how are FPR 2010 made? FPRC are delegated by Courts Act 2003 ss 75 and 76 to prepare the rules, just as the Lord Chancellor – or the Ministry of Justice – is delegated to prepare legal aid regulations. Sections 75 and 76 define the rule-makers’ powers (their vires). It defines what Parliament says they can do. Examination of ss 75 and 76 shows there is nothing in FPRC’s powers to say the rule-makers can change the common law. The open justice principle is common law as are most of the rules about expert evidence and disclosure; the basis of costs law is statutory (ie Senior Courts Act 1981 s 51; though s 51(1) expressly states that it is subject to any rules such as FPR 2010 Pt 28); and children law procedure are a mixture of law (Children Act 1989) and rules (mostly FPR 2010 Pts 12 and 16).


Boddington and judicial review principles


Is there any way, short of formal application for judicial review, that a party to proceedings where questions about subsidiary legislation arise, can raise the issue of the powers of rule-makers or other public bodies where this crops up in their case? That is where Boddington v British Transport Police [1998] UKHL 13; [1999] 2 AC 143 comes in. Before looking at Boddington it is necessary to look at certain very basic judicial review principles. In Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 [1985] AC 374 Lord Diplock categorised the main grounds for judicial review as ‘illegality’, ‘irrationality’ (or unreasonableness) and ‘procedural impropriety’. This article will be concerned with the first, defined by Lord Diplock as:


By “illegality” as a ground for judicial review I mean that the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it. Whether he has or not is par excellence a justiciable question to be decided, in the event of dispute, by those persons, the judges, by whom the judicial power of the state is exercisable.


A question in what follows will be whether a decision-maker – mostly the rule-makers – has given effect to the law which regulates to the Committee’s rule-making or the guidance which is issued alongside it.


The rule in Boddington: a collateral challenge


Mr Boddington was a rail commuter who travelled from Brighton and a smoker. He was prosecuted for breach of a byelaw which was said to prevent him from smoking on a train. He smoked on the train after being banned from doing so. He contended that the smoking ban was ultra vires the railway company as it went beyond its statutory powers under the Transport Act 1962. How was that challenge to the legality of the bye-law to be dealt with by Brighton stipendiary magistrate?


The House of Lords held that the magistrate had been wrong to rule that Mr Boddington could not raise the underlying vires question as a defence to the criminal charge, because, on the true construction of the statutory provisions, Parliament did not intend to exclude that defence to such a criminal charge. It was emphasised that the first time Mr Boddington had a sensible opportunity to challenge the vires issue was when he was charged with breach. (He had not raised it in any judicial review proceedings.)


Mr Boddington was entitled to make a collateral challenge in the criminal proceedings. It was not necessary for him to take separate judicial review proceedings. Lord Steyn explained this (at 175):


… Allowing a collateral or defensive challenge ‘avoids a cumbrous duplicity [etc, see above] as Lord Bridge put it in [Foster (above)]. In any event, expediency is not a sufficient and proper basis for taking away by judicial decision part of the jurisdiction of magistrates’ courts to rule on issues pertinent to the guilt or innocence of defendants….


Challenge to the validity of subsidiary legislation


Lord Steyn pointed out that if courts could not deal with the validity of subsidiary legislation, they might be left in the position of having to ‘convict defendants and to punish them despite the fact that the invalidity of the byelaw or order on which the prosecution is based affords the defendant an answer to the charge. This would involve an injustice which cannot be tolerated in our criminal justice system. Not to permit a collateral challenge was a state of affairs which Lord Steyn found (at 173) to be too ‘austere and indeed too authoritarian to be compatible with the traditions of the common law’.


Mr Boddington’s appeal ultimately failed because the House of Lords held that, under the relevant statutory provisions, the rail company did have power to impose a total smoking ban. The House held, however, that the magistrate would have been entitled to hear the collateral challenge to the vires of the bye-law under which he was prosecuted.


In Howker v Secretary of State for Work and Pensions [2002] EWCA Civ 1623, [2003] ICR 405 Hale LJ (sitting with Peter Gibson and Mance LJJ) a benefits provision was found to be invalid, and it was held the Commissioner could have made findings on Mr Howker’s appeal to the Upper Tribunal (as it would now be). She pointed out (at [51]-[52]) that there were two categories of case where the validity of delegated legislation might be challenged. First was where administrative acts are aimed at a particular person (see Stannard (below)). The second is where subordinate legislation is of general character (ie directed at the world at large) (and see Lord Irvine LC in Boddington).


The question for a court or administrative tribunal, as Hale LJ explained in Howker concerns the extent of the jurisdiction in the court to hear and decide on validity:


[52] … It has been clear since Chief Adjudication Officer v Foster [1993] AC 754 that there is jurisdiction to entertain challenges to the validity of social security regulations in the course of the social security appeal procedures. The question is not, as it was in R v Wicks [1998] AC 92 and Boddington… whether the commissioner could entertain the challenge. The question [here] is whether he was right to reject it….


Vires of subsidiary legislation: to be raised in the court where it arises?


That is to say, if a question of validity of subsidiary legislation arises, can the question be dealt with in the court where it is raised? The short answer is: yes. In Stannard v Crown Prosecution Service [2019] EWHC 84 (Admin), [2019] 1 WLR 3229 the Queen’s Bench Divisional Court (Hickinbottom LJ, Whipple J) held that the court which tried an offence against community protection notice (CPN), was not obliged to consider the appropriateness of the notice where a defendant had not appealled against it when the notice was first made. Boddington did not apply, said the Divisional Court, because the CPN was specific to an individual and to his behaviour (following the Divisional Court decision in Director of Public Prosecutions v T [2006] EWHC 728 (Admin); [2007] 1 WLR 209).


By contrast, in White v South Derbyshire District Council [2012] EWHC 3495 (Admin), [2013] PRSR 536, QB Div Ct (Gross LJ, Singh J) the Divisional Court applied Boddington in respect of a prosecution by a local authority which had unlawfully created a site licence and occupiers of the site had not applied in relation to it. Allowing the occupiers application for judicial review Singh J said:


‘[35] As the decision in the Boddington case itself illustrates, there will be circumstances in which the courts will allow a person to raise an ultra vires argument even in a case which is not brought by way of judicial review.’


Friends, family or supporters and attendance at court: powers of HMCTS


And what of the person who wants to go into an open court, but is excluded by court staff? What are the powers of HMCTS? And this is relevant here; since it is probably an HMCTS direction which directs one hour early attendance.


Matthew O’Connor (MO) was a leading member of Fathers4Justice. He was due to be tried by magistrates for a public order offence. Court managers heard that there might be a demonstration at the court and decided to bar anyone who might be associated with MO unless they were listed as defence witnesses. When MO and others interested in attending his trial – eight to ten people – attempted to enter the court building, only MO and his lay representative were permitted entry. MO applied to the court for those excluded to be admitted on the grounds that he was being denied the right to a public hearing. This application was refused after advice from the justice’s legal adviser, and that a properly authorised court manager had taken the view that there was a risk on grounds of safety and security.


In R (O’Connor and anor) v Aldershot Magistrates’ Court, QB Divisional Court, Fulford LJ, Leggatt J) [2016] EWHC 2792 (Admin), [2017] 1 WLR 2833 MO and two of those accompanying him applied for judicial review of the magistrates’ decision; and the magistrates agreed to adjourn his hearing before them so he could apply. The Divisional Court emphasised the open justice principle (at [25]) by reference to cases such as Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531, [2011] 3 WLR 388 and R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618.


The issue of admission to the court must be resolved by the court on the day; not by incurring the extra time and expense of judicial review in an already busy Administrative Court list (and see Chief Adjudication Officer v Foster [1993] AC 754 especially comments on expediency of Lord Reid).


The Family Court: resolution of the issue on the day


So what is to be done? It the vires (powers of the court or delegated legislation) is to be challenged, this should be done on the day of the hearing which considers the point. And if anyone says you should turn up at 1.30 pm, do so; but challenge the powers of HMCTS ever to do this again. Give as much notice as possible to the court (if possible by FPR 2010 Pt 18 application). If there is no time for this argue your point on the day, citing some or all the above authorities.


And enjoy a proper email etc free lunch in the future…


David Burrows

15 January 2020

Harry and Meghan: a conflict of rights


Freedom of expression and privacy


The latest in the story of Prince Harry and Meghan Markel (the ‘Sussexes’) and their aim to carve out new roles as hybrid royals part prompted by their tribulations of dealing with the British media (for the latest see here). Involvement with the press – and in this context I think mostly of court proceedings – comes in a variety of forms (eg photographs, promoting you own story, protecting your privacy, details of family proceedings etc). It affects ‘celebrities’ disproportionately (though as Naomi Campbell’s case (see below) shows, it can be said they asked for it – mostly). It can affect us all: parents and children in care proceedings; anyone investigated by the police or involved in interesting (to the press) open court proceedings; and even some private proceedings case.


English law on press freedom and privacy are derived from the common law, prompted by European Convention 1950 Arts 8 (‘respect for private and family life’: ie privacy) and 10 (freedom of expression: ie publicity). To act for a ‘celebrity’ (silly expression, but convenient short-hand; or ‘figures of contemporary society “par excellence”’ of a Monacan royal family member (see below)) will be rare for most lawyers. However, the balance – the conflict – between privacy and media freedom of expression arises wherever the media take an interest; but an individual affected wants to keep a case private (see discussion in the ‘three way sex’ case: PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251; or the photographing of JK Rowling’s child: Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446,  [2008] 2 FLR 599, [2009] Ch 481).


Privacy and the common law


A law of privacy was more or less unknown to the common law till the early 21st Century (Kaye v Robertson [1990] EWCA Civ 21) a case which, said Bingham LJ, ‘highlights, yet again, the failure of both the common law of England and statute to protect in an effective way the personal privacy of individual citizens’. Then, after the incorporation of Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (‘the Convention’) into English law by Human Rights Act 1998 in October 2000 a trio of cases in 2004 sealed a common law concept of privacy and showed how it might develop on issues of privacy.


First was in the House of Lords in Naomi Campbell’s case (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457). The common law began to feel its way towards a concept of privacy. Privacy could be actionably invaded by the media. Campbell recovered modest damages for the privacy invasion by the Daily Mirror.


Six weeks later, privacy principles were explored in Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1 where the extent of the media’s freedom to interfere in a person’s private life was defined. Publication of photographs of the Monacan royal family member, Von Hannover, and her private life, by an invasive press were not permitted, said the European Court of Justice. The court said:


[23] …. even figures of contemporary society ‘par excellence’ were entitled to respect for their private life and that this was not limited to their home but also covered the publication of photos….


The ‘ultimate balancing test’


The lead case on the balance between competing Convention rights followed (and as can be seen, those involved – a parent and child in care proceedings – were by no means (but perhaps for that case) ‘celebrities’. The case was on the cusp between criminal and family proceedings, namely Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593. Should the name of a mother who was being prosecuted for murder of her child be anonymised for the sake of S, another child of hers? No, said Lord Steyn. Freedom of expression trumped privacy of the mother.


For general application of the Arts 8 and 10 balance (and any other Convention rights in the mix, the test a judge must apply to each case’s facts is, said Lord Steyn, as follows:


[17] … First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test. This is how I will approach the present case.


And still Lord Steyn’s test is the golden metwand by which Convention rights are determined in a variety of proceedings where rights appear to conflict.


Spencer and media involvement in family proceedings


Five years after all this, Prince Harry’s uncle (Princess Diana’s brother) found himself being required to conduct his matrimonial financial relief proceedings in front of the media, in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416. The rules for admission of media to family proceedings (now Family Procedure Rules 2010 r 27.11(2)) had recently been changed at the time. Munby J had sympathy with Countess and Earl Spencer, but said that there was nothing exceptional about the facts of their case which could justify him in ordering exclusion of the media. The couple settled the case overnight, so the press had no hearing to report.


Royal family members, privacy and publicity on marriage breakdown (any privacy problems of the Sussexes has nothing to do with marriage breakdown) coalesced in Prince of Luxembourg v Princess of Luxembourg [2017] EWHC 3095 (Fam), [2017] 4 WLR 223, [2018] 1 FLR 480 (to provide an abbreviated title to the case). The media had painted Princess Tessy as a gold digger. She wanted to be able to respond to this by explaining the content of her negotiations to settle her financial relief claim. One area of family breakdown which is totally out of bounds for publicity, is court negotiations for settlement; so even to put Tessy’s story right, Macdonald J said the press could not publish the private aspects of the negotiations.


Most of these cases refer to people on a different plane of notoriety than most clients; but the principles – say in relation to care proceedings or parties’ difficulties with local authorities or government departments or health authorities – are the same. Where there is an issue on freedom of expression the Re S balance must be examined and struck – one way or the other. Privacy and freedom of expression must be carefully balanced.

Release of court material


Non-party claim for court material in Court of Protection


The high point of open justice litigation from last year is the Supreme Court decision in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38, [2019] 3 WLR 429 where Mr Dring, on behalf of asbestosis victims (not parties to the litigation), applied for release of court documents (for more commentary on the Supreme Court decision see here). The case concerned asbestos and which had been settled (ie there was no formal judgment). This post looks at a case in the Court of Protection (Re Z [2019] EWCOP 55 (20 December 2019), Morgan J) which explains and develops the Cape Intermediate v Dring principles in another civil proceedings jurisdiction.


In Dring, a High Court master had made an extensive order for release of court material in relation to Mr Dring’s application. The Court of Appeal narrowed this order; and against cross appeals by both parties the Supreme Court upheld the appeal order. The position defined by the Supreme Court applies to release of court materials from all forms of court proceedings (civil, family, criminal etc) (as Morgan J emphasises in the Re Z [2019] EWCOP 55 (20 December 2019) considered in this post).


The Supreme Court examined to what extent can any court under CPR 1998 r 5.4C (or principles derived from that rule in non-CPR 1998 jurisdictions: see eg Court of Protection Rules 2017 r 5.9) direct release of court material to a non-party; or can do so under the court’s inherent jurisdiction. Giving further Supreme Court impetus to principles discussed in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 it was held in Cape Intermediate v Dring that the following material can be released by order of a court:


  • skeleton arguments and other written submissions (Cape Intermediate in CA at [69]; GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984);
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports, but not exhibits to these; and
  • any other document which it is necessary for the court, in its inherent jurisdiction, to release to comply with the open justice principle.


The significance of this for family lawyers is that the Supreme Court emphasised that these principles apply to all proceedings regulated by the common law, which includes family proceedings. Certain redactions and anonymisation – for example children’s, and maybe certain parties’, names – but application can still be made within the terms of Cape Intermediate v Dring.


Open justice and the Court of Protection


Cape Intermediate v Dring was considered fully in Re Z [2019] EWCOP 55 (above). On uncontested medical evidence, Morgan J held that Z lacked capacity to manage his property and financial affairs. His wife, brother and daughters had been involved in his Court of Protection proceedings and consented to the remainder of the order. Part of this (see [1](vi)) dealt with four declarations: (1) as to terms agreed for contact between Z and his brother and (2) and three, by consent, in relation to certain lasting powers of attorney in relation to Z. The judge explained that, when he made these declarations, by consent, ‘I had to consider, and I did consider, that it was proper for the court to make declarations by consent’ (at [1](vii)). This is relevant to his ‘judicial decision’ (see below).


Z’s son, JK, had not taken direct part in the proceedings (of his own choice; though his sisters had). After conclusion of the case, he wanted to have released certain material from the Court of Protection file which had been before the judge when he made his order. His application was refused. The judge considered that he had not proved sufficient grounds to justify an order ([73]).


In doing so, Morgan J carefully applied open justice principles as explained, for example, in Guardian v Westminster (above) and, seven years later, affirmed in the Supreme Court in Cape Intermediate v Dring (above). He was conscious that what he said was an important working out of the Cape Intermediate v Dring principles and gave judgment in open court accordingly. The principles he considered and the conclusions he reached would apply equally should a similar situation arise in proceedings in the family courts.


‘A judicial decision’


In Cape Intermediate v Dring there was no judgment, still less any order. In Re Z there was no contested hearing at all; but a full judgment on JK’s application (on which this post is based). That said, aspects of the case involved, in part, a decision-making process for the court. This was critical to his decision, as Morgan J explained:


[67] … The open justice principle is engaged in relation to those parts of the order which involved a judicial decision. The declaration as to the capacity of Z involved a judicial decision. As regards the declarations by consent, there was an element of judicial decision making involved but there was not a judicial decision in relation to the underlying dispute about the powers of attorney, because the parties had settled that dispute. Accordingly, in relation to the substantial body of evidence which related to that dispute, the open justice principle is not engaged; however, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access. As regards the remainder of the material which was provided to the court in relation to matters which were settled and which were the subject of other parts of the order of 26 November 2018, the open justice principle is not engaged but, as before, I have power to allow JK to have access to that material if there are strong grounds for holding that it is in the interests of justice to allow him to have access.


Morgan J summarised the scope of the open justice principle (at [19]) as applied here and as set out in Cape Intermediate v Dring. In his view this included:


  • Cape affirms that the open justice principle applies ‘to all courts and tribunals exercising the judicial power of the state’; and it therefore applied to the Court of Protection (para (i));
  • The court in question decides ‘what the principle requires in terms of access to documents or other information placed before the court’ ((ii));
  • The principle has two principal purposes ((iv)-(vi)):
  • to enable public scrutiny of the way in which courts decide cases; this is in order to hold the judges to account for their decisions and to enable the public to have confidence in them; and
  • to enable the public to understand how the justice system works and how decisions are taken; for this purpose, the public have to be in a position to understand the issues and the evidence adduced; the public need to have access to written material and should not be confined to what is expressed orally in court;
  • An applicant seeking access has no right to be granted access, save to the extent that the rules confer such a right ((viii)). A person seeking access must show
  • a legitimate interest in doing so ((xi)); and
  • must explain why granting him access will advance the open justice principle;
  • Relevant considerations for the court include the purpose of the open justice principle and the potential value of the information in question in advancing that purpose; balanced by any perceived ‘risk of harm to the judicial process or the legitimate interests of others’ ((xii)-(xiii));
  • The applicant will be expected to pay the costs of granting access ((xvii));


And Morgan J concludes his list (at (xviii)) by quoting Lady Hale in Cape Intermediate v Dring:


[47] …. In short, non-parties should not seek access unless they can show a good reason why this will advance the open justice principle, that there are no countervailing principles of the sort outlined earlier, which may be stronger after the proceedings have come to an end, and that granting the request will not be impracticable or disproportionate.


The decision of the court on release of material, even though there had not been contested proceedings, therefor turned on the element of judicial decision-making. There had been certain judicial decisions: for instance as to whether (on the basis of medical evidence) there should be any finding on capacity at all; and then whether the declarations in the order should be made.


On that basis and of the principles in Cape Intermediate v Dring summarised above, Morgan J rejected JK’s applications both under Court of Protection Rules 2017 r 5.9 (on analogy with Civil Procedure Rules 1998 r 5.4C). He found that JK had not done enough to establish that in this case the open justice principle went far enough to justify release.

Court of Appeal: privilege and confidentiality in 2019


‘Yes, I remember Addlesee…’


The latter part of 2019 has seen at least three important cases in the Court of Appeal on the subjects of legal professional privilege (LPP) and confidentiality.


In Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 (2 October 2019) the question was: ‘What happens to legal advice privilege attaching to communications between a company and its lawyers, once that company has been dissolved?’ said Lewison LJ in the Court of Appeal. Legal advice privilege (LAP), the more significant branch of LPP, endures till it is waived by the person entitled to it; if it is overridden expressly by statute; or where the iniquity exemption applies (ie where a person seeks legal advice to commit a crime or other such nefarious activity).


The brief facts of Addelsee – the reference in the heading above is to Edward Thomas’s‘I remember Adlestrop’ – the brief facts are that a group of investors paid into a scheme marketed by a company which was subsequently dissolved. The Crown had disclaimed any interest in bona vacantia. The investors brought a claim against the company’s lawyers in damages saying that the scheme was fraudulent. A Master refused to order disclosure of documents passing between the company and its lawyers. LAP remained despite the dissolution of the company, she said. The investors appealed.


The twin starting points for LAP, said Lewison LJ in the Court of Appeal, are R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513 and Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274. For him it was R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 which asserted that LAP was not just a question of evidence – ‘disclosure in legal proceedings’ – but it ‘was a fundamental human right’ ([13]-[15] and [61] and [62] per Lord Hoffman). LAP ‘is absolute and is based not merely upon the general right to privacy but also upon the right of access to justice’.


Legal advice privilege: a fundamental right


But why is LAP a human right? The common law replies that it is a matter which is basic to the administration of justice. A client must be able to speak frankly to a lawyer. The client must be have entire confidence that nothing will be passed on to anyone else at all, save with the client’s consent. Lewison LJ (at [8]) cited Lord Taylor in the Derby Magistrates case quoting from Anderson v Bank of British Columbia (1876) 2 ChD 644 at 649 per Sir George Jessel MR:


‘[The client] should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him, should be kept secret, unless with his consent.’


Central to all this is the fact that only the client can waive privilege. In Bullivant and ors v The Attorney-General for Victoria [1901] AC 196 it was stated: ‘The mere fact that a testator is dead does not destroy the privilege’. So, said, Lewison LJ, it seems that LAP may be as important to ‘those left behind’ as it was to the deceased (at [35]). But surely the right must belong to someone.  If the person entitled to the privilege dies or ceases to exist, does not their privilege die with them? No, says Lord Taylor in the Derby Magistrates’ case. There can be no exception, he said, to the principle of ‘once privileged, always privileged’. And thus, LAP ‘attaches at the moment when the protected communication is made’ (Lewison LJ at [57]). LAP applies as soon as the advice is given, to the circumstances in which it was given – what was said and so on – and it survives until waived. The survival of the beneficiary of the advice is irrelevant.


‘Iniquity exemption’: pub chatter and an email?


Lewison LJ featured again in the second case, Curless v Shell International Ltd [2019] EWCA Civ 1710 (22 October 2019); though here the judgement was of the court (Sir Thomas Etherington MR, Lewison and Bean LJ). The case concerned Mr Curless who was involved in Employment Tribunal (ET) proceedings with his former employer, Shell. Drinking in a bar one evening Mr C heard a conversation between two individuals, which he assumed related to tactics for seeing off his claim. Later he saw an email from senior lawyer working for Shell, sent to him anonymously and not intended, by its author or recipient, to be seen by him.


In his ET proceedings Mr Curless referred (paragraphs 10 and 11) to both of these sources of information. The question was whether his pleadings, to the extent that they referred to what was said and in the email (paras 10 and 11) should be struck out since they were cover by LAP; but that if so, was that privilege inapplicable because on the iniquity principle (R v Cox and Railton (1884) 14 QBD 153; that it cannot be part of a lawyer’s job to advise wrong-doing, and that, if that is the case, no privilege can arise). The ET said LAP applied; but on appeal to the EAT Slade J said not.


The email was one which was routine where advice was sought and provided in employment law cases, said the Court of Appeal. And the conversation in the pub was little more than gossip; and could not be used to interpret the email. Neither were susceptible to a claim for ‘iniquity’. The judgment concluded with a short discussion of case law in relation to the ‘iniquity exemption’ starting from Cox and Railton and explaining why, as the law stands, the iniquity exemption, in the light of Barclays Bank plc v Eustice [1995] 1 WLR 1238, CA, can go further than dishonesty.


Confidentiality and undertakings


DSM SFG Group Holdings Ltd & Ors v Kelly [2019] EWCA Civ 2256 (19 December 2019) was dealt with more on the basis of confidentiality, than of LAP (though LAP arose on the facts); and an important subsidiary issue was that of undertakings given to the court. The facts by most standards, and the first instance decision under appeal, were remarkable. The respondent had taped conversations between the appellant’s in-house lawyer and their own solicitors over a period of six weeks. The company issued harassment and breach of confidence claims, alongside seeking an injunction against Kelly.


That he had bugged the appellant company’s lawyers (and then lied to the court about it: see [11]) was bad enough. That the conversations on the face of it must normally have been covered by privilege surely stood out? But then the first instance judge permitted the respondents to alter their undertaking (see [25]) – originally (1) not to use the recordings other than to defend the proceedings; but also (2) then to counter-claim. As Simon LJ put it, the appellant’s claims were resolved against them by the judge, but before the issue had even been tried:


‘[30] … The original undertakings protected the appellant’s confidential information until the issues in relation to the claim for breach of confidence were resolved; whereas the revised undertakings allowed the respondent to use and disclose the appellants’ confidential information, so as to make claims including claims against third parties, before he had established any right to do so. The Judge’s order had the effect of allowing the use of confidential material before the right to do so had been established, see Imerman v. Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116 at [142]. In effect, the order granted the respondent summary judgement on the issue of confidentiality, subject to reservations whose effect was necessarily uncertain.’


The amendment at (2) was deleted; so that the issue of confidentiality (and LAP) remained live on the company’s application. And, as the court made clear, the respondent’s confronted a stiff climb to prove the justice of his breach of the company’s confidence (still more any attempt to override LAP). For example, Lord Denning MR in Seager v Copydex Ltd [1967] 1 WLR 923 at 931B-E (quoted by Simon LJ at [40], and still good law in 2019), said this:


‘I start with one sentence in the judgment of Lord Greene MR in Saltman Engineering Co v Campbell Engineering Co [1948] 65 RPC 203, 213: ‘If a defendant is proved to have used confidential information, directly or indirectly obtained from the plaintiff, without the consent, express or implied, of the plaintiff, he will be guilty of an infringement of the plaintiff’s rights.’… The law on this subject… depends on the broad principle of equity that he who has received information in confidence shall not take unfair advantage of it. He must not make use of it to the prejudice of him who gave it without obtaining his consent.’


Further, a subject close to the practice of many lawyers, the court reminded litigants that undertakings given by parties to the court, can – in principle – be released on application by the party who gave it. However, that release should only be on a ‘significant change of circumstances’ being established by the applicant (see recently Lord Wilson at [11], Birch v Birch [2017] UKSC 53, [2017] 1 WLR 2959, [2017] 2 FLR 1031).


Privilege and administration of justice


So three cases on aspects of LAP; and, to a lesser extent, of confidentiality. All show the continuing clarity with which the common law treats privilege and confidentiality. Their  centrality to rights and the administration of justice remains as ever.