‘TRANSPARENCY’ AND THE COMMON LAW

‘Open justice’: the common law starting point

 

‘Transparency’ in family proceedings – as it is known – in reality means the opposite. It means the extent to which family lawyers permit the common law open justice principle to be restricted and made more opaque (ie not transparent at all). Recently Roberts J, described her job as ‘to find a way through somewhat rocky terrain [in a matrimonial financial case] where, as everybody appears to agree, there is no clear roadmap’ (in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) – http://www.bailii.org/ew/cases/EWHC/Fam/2014/2314.html). Family lawyers have found it hard to read the maps in what is, essentially, relatively straightforward legal terrain if you start with the common law. It is the common law which this note outlines.

 

The starting point is open justice. Lord Bingham said that laws should be ‘publicly administered in the courts’ (‘Rule of Law’ (2006 – http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php). Open court hearings are guaranteed by the Human Rights Convention 1950 Art 6(1). The common law, as summarised by Civil Procedure Rules 1998 r 39.2(1), confirms it: ‘The general rule is that a hearing is to be in public’; or as Toulson LJ (now Lord Toulson) recently explained it in Guardian News and Media Ltd, R (on the application of) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420 (http://www.bailii.org/ew/cases/EWCA/Civ/2012/420.html) :

 

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

 

Family proceedings: exceptions to ‘open justice principle’

 

Family proceedings are bound by these rules as are all other civil (ie non-criminal) proceedings save where Parliament has said something different (eg to protect children proceedings). Exceptions exist at common law – Lord Toulson’s ‘unwritten text’. Three areas of civil and family proceedings need to be considered:

 

  • Children proceedings (including care proceedings and adoption)
  • Family money proceedings (like the Hohn case)
  • Other family proceedings: divorce, domestic abuse, parentage etc

 

Though we speak of ‘privacy’ the criterion is not that the hearing is private; but mostly that nothing, or only parts of it, can be published. Publicity is the general rule, unless something in a statute, or a court order in the particular case, says something different. Thus, even of proceedings ‘in private’, it is not illegal to publish ‘information relating to proceedings’ unless they are in respect of children or their upbringing (Administration of Justice Act 1960 s 12). That leaves open season on all other family proceedings, save as dictated by the common law or as ordered by the court.

 

The law is most easily approached as it is summarised by CPR 1998 r 39.2(3) which sets out a simple list of those types of individual case where publicity may be restricted by the court. The list includes:

 

  • A hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (eg enable someone to get rid of assets which the applicant was trying to freeze);
  • The case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (which would apply in many matrimonial financial proceedings, such as Cooper-Hohn); and
  • ‘The court considers this to be necessary, in the interests of justice’.

 

If the family court considers these provisions and then balances them against the right of the press – generally – to publish, then Mrs Justice Roberts’s map simplifies itself.

 

‘Use’ of documents following the court proceedings

 

Beyond this, a question remains as to the ‘use’ of court documents outside the proceedings. The law distinguishes between three categories of use:

 

  • The document disclosed under compulsion: ie because the law says the document must be produced (ie most documents produced in civil proceedings);
  • Documents ‘referred’ to in court; and
  • Documents where publicity is restricted but which a party wants to release (ie publicise in some way), or a third party wants to see.

 

It has long been the law that documents in category (1) – whether they are produced in public or private proceedings – are immune from being released to third parties (ie published in the broadest sense of the word, which may include to the press: know to lawyers as the ‘implied undertaking’ by the party who receives the documents not to release them further). This would cover many financial documents in family proceedings.

 

In category (2) there may be an issue as to whether the document has been ‘referred’ to in court; and this includes documents merely read by the judge as part of his/her preparation for the case. The document may then be referred to in court almost only in passing. If it is in this category, the document may be published outside the proceedings, unless the court says otherwise (it was in this type of proceedings that the Lord Toulson quote above arose). A party, or a third party to whom the document belongs, can ask the family court to restrict publication.

 

Of category (3): a particular line of family cases has arisen where the court is asked by one party or a third party (eg the tax authorities) for release of documents. On this the law is unsettled: some judges think wrong-doing (eg tax evasion) should be exposed, whatever the risk to future disclosure; whilst others – perhaps the majority – feel that possible dishonesty should be kept private, even from state authorities.

 

Conclusion

 

It is to be hoped that if the common law is followed, as outline above, the road will not be as ‘rocky’ as Mrs Justice Roberts sees it. The questions for judge and legal adviser to ask are:

 

  • Is it a children case: publicity will generally be denied subject to order of the court?
  • In any other category of family case: is there any positive reason (such as those referred to above) why the case should be heard in private (eg private financial information)? And if documents have been ‘referred’ to: should their publication be restricted?
  • If a third party or government body want to see documents: how is privacy to be balanced against the need for the court not to condone dishonesty?

CONSULTATION: SIR JAMES IS BUT ONE VOICE…

‘Guidance’: not consultation by a public body

 

Funny thing that: there’s me sounding off last week (see eg http://wp.me/p4jaDx-62) about the general need – as opposed to a specific requirement – for the President of the Family Division to consult on new ideas, whether as administrator or as chairman of Family Procedure Rules 2010. When I raise with his office the question of dates for consultation (suggesting that not a lot of time is being left between now and early October 2014 to ‘consult’) I am told (by email dated 26 August 2014):

 

As far as the guidance … goes, I should point out that this is not a consultation by a government department, and indeed, the President is under no obligation to consult at all. However he remains anxious to hear any views on all these important topics and as stated above we are happy to receive responses at any point.

 

The ‘guidance’ relates to ‘transparency’. At short notice Sir James Munby P issued Transparency in the Family Courts: Publication of Judgements: Practice Guidance of 16 January 2014. A further document entitled Consultation: Family Transparency – the next steps (19 August 2014) (consultation due by ‘end of October [2014] at the latest’) has been issued by the Judicial and Tribunals Office (http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ ). The document is unquestionably entitled ‘Consultation’.

 

I yield to none in my admiration for Sir James’s energy and determination. He is in a very powerful position, as the family court hierarchy stands, to change practice. He is no a natural democrat; and I doubt he distinguishes his judicial and his administrative roles clearly or at all. Much of what is going on in and around his office is now administrative and should not be run by just one person.

 

When the Civil Procedure Rules 1998 and the ancillary relief pilot scheme were being introduced the then Lord Chancellor, Lord McKay, took a close interest in them (as he did in the Children Act 1989 ten years earlier). But he knew his limits as an administrator and listened to people (as I know personally from when he asked me to go to see him about the then ancillary relief ‘pilot scheme’ in late 1997). The present Minister of Justice would not understand the need for consultation (unless it was explained to him); but his civil servants, including Sir James, know the difference. Indeed Sir James himself stressed the court’s public authority role as defined by Human Rights Act 1998 s 6(1) (not directly in relation to administrator consultation) in the very recent Q v Q (No 2) [2014] EWFC 31:

 

[46] … The court is a public authority for the purposes of the Human Rights Act 1998 and is therefore required, subject only to section 6(2), to act in a way which is compatible with Articles 6 and 8 of the Convention….

 

Consultation and the common law

 

Strictly speaking the common law does not require Sir James to consult. As far as the point goes, his office is correct, despite the title of his paper. However the tendency of modern government and administration is to consult whenever reasonably possible. The Court of Appeal have recently considered the point. In R (ota LH) v Shropshire Council [2014] EWCA Civ 404 Longmore LJ explained the position as follows:

 

Consultation on what?

[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

 

In putting forward ‘Guidance’ Sir James is not acting as a judge – judges judge. It is an administrative exercise which he undertakes in an office which – like that of Lord McKay LC – is that of an administrator. He is subject to the constraints of any public body or civil servant and required to act ‘fairly’ (ie not autocratically).

 

‘Fairness in consultation’

 

The role of fairness in consultation is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054. De Smith adopts the terminology of Lord Woolf in R v North & East Devon HA exp Coughlan [1999] EWCA 1871:

 

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

 

The ‘guidance’ consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I respectfully suggest, reasonably requires that he stand back and let someone else receive the consultation on transparency and let them put forward any legitimate law changes, or guidance, arising from it. The voice of Sir James should please be but one; not the only voice from which the consultees must persuade him of another course.

MUDDLED LAW AND THE SET ASIDE JURISDICTION

Setting aside a consent order

MAP v RAP [2013] EWHC 4784 (Fam), Mostyn J (3 December 2013) http://www.bailii.org/ew/cases/EWHC/Fam/2013/4784.html shows how muddled the law can become – as between substantive law, procedure and practice guidance – if judges do not remind themselves where law shades into subsidiary legislation, and subsidiary legislation into guidance and judicial obiter dicta.

In this case the application was to set aside a matrimonial financial consent order. The law is provided for by Senior Courts Act 1981 s 17(1) (see below) as explained by Gohil v Gohil (below; decided since December 2013). FPR 2010 r 4.1(6) has nothing to do with the process; nor does any other subsidiary legislation immediately apply. As will be seen application to set aside is by appeal out of time (s 17(1)); or perhaps, as suggested by the Court of Appeal in Gohil, it may be that a separate application (perhaps under FPR 2010 Part 19) can be issued by the party seeking to set aside.

The background to the case was that, after a marriage of nearly thirty years, a wife claimed that she had consented to a financial order at a time when she lacked capacity to do so. She applied for permission to appeal to set aside the order. Mostyn J found that her appeal as to capacity was arguable and gave permission accordingly. If that appeal succeeded then the order would be set aside. Two areas were of concern to the court: the set aside procedure and capacity in the context of the case. Both points have since been considered by the Court of Appeal and Supreme Court respectively since December 2013.

However the judge made comments on aspects of the law which may be regarded as misleading, and therefore justify review here. He seems to treat Supreme Court authority as the opposite of what it said; and overlooked Court of Appeal (as explained below in relation to Re L-B and Roult).

Law, procedure and guidance

Mostyn J makes no reference to statute law; yet SCA 1981 s 17 provides for ‘applications for a new trial’ (and see commentary in Family Court Practice (the Red Book)) as follows:

17 Applications for new trial.

(1)Where any cause or matter, or any issue in any cause or matter, has been tried in the High Court, any application for a new trial thereof, or to set aside a verdict, finding or judgment therein, shall be heard and determined by the Court of Appeal except where rules of court made in pursuance of subsection (2) provide otherwise.

(2)As regards cases where the trial was by a judge alone and no error of the court at the trial is alleged, or any prescribed class of such cases, rules of court may provide that any such application as is mentioned in subsection (1) shall be heard and determined by the High Court.

This section governs set aside applications, as Ward J painstakingly explained in B-T v B-T [1990] 2 FLR 1, save where – as was the case in 1990 – Matrimonial Causes Rules 1977 made provision for county court appeals. In procedural law terminology a ‘new trial’ is to what the set aside issue is addressed: an applicant wants his/her order set aside so that a fresh trial of the issue originally resolved by the order (whether a consent order, as here; or following a contested hearing) can be arranged. And one of the disposals of an appellate court is to ‘set aside… any order’ or to ‘order a new trial or hearing’ (CPR 1998 r 52.10(2)(a) and (c)). Application to set aside and the related forms of appeal permission applications are explained in Family Court Practice (the Red Book) Part 1 at Procedural Guide E6.

Power to revoke a case management order

FPR 2010 r 4.1(6) under the heading ‘Court’s case management powers’ provides: ‘(6) A power of the court under [FPR 2010] to make an order includes a power to vary or revoke the order’.

The question of whether any jurisdiction under CPR 1998 r 3.1(7) (from which r 4.1(6) is directly derived) disposed of by the Court of Appeal in Roult v North West Strategic Health Authority [2009] EWCA Civ 444. At para [15] Hughes LJ reviewed the meaning of CPR 1998 r 3.1(7) and whether or not it could be treated as giving the court power to set aside its own order:

[15] … If [r 3.1(7) could be used to set aside a court’s own order], it would come close to permitting any party to ask any judge to review his own decision and, in effect, to hear an appeal from himself, on the basis of some subsequent event. It would certainly permit any party to ask the judge to review his own decision when it is not suggested that he made any error. It may well be that, in the context of essentially case management decisions, the grounds for invoking the rule will generally fall into one or other of the two categories of (i) erroneous information at the time of the original order or (ii) subsequent event destroying the basis on which it was made. The exigencies of case management may well call for a variation in planning from time to time in the light of developments…. But it does not follow that wherever one or other of the two assertions mentioned (erroneous information and subsequent event) can be made, then any party can return to the trial judge and ask him to re-open any decision. In particular, it does not follow, I have no doubt, where the judge’s order is a final one disposing of the case, whether in whole or in part.

Especially said Hughes LJ was this so in the case of a settlement reached with the benefit of full and skilled advice. ‘The interests of justice, and of litigants generally, require that a final order remains such unless proper grounds for appeal exist.’

Lady Hale confirmed this view in the Supreme Court in Re L-B (Reversal of Judgement) [2013] UKSC 8, [2013] 2 FLR 859 as follows:

 

[37]   Both [CPR 1998 and FPR 2010] make it clear that the court’s wide case management powers include the power to vary or revoke their previous case management orders: see CPR r 3.1(7) and r 4.1(6) of the FPR. This may be done either on application or of the court’s own motion: CPR r 3.3(1), r 4.3(1). It was the absence of any power in the judge to vary his own (or anyone else’s) orders which required the courts to led to the decisions in In re St Nazaire Company (1879) 12 ChD 88, [where the Court of Appeal decided that there was no longer any general power in a judge to review his own or any other judge’s orders]. Where there is a power to vary or revoke, there is no magic in the sealing of the order being varied or revoked. The question becomes whether or not it is proper to vary the order.

Notwithstanding that Lady Hale (though not in terms) follows Roult Mostyn J seems to derive a conclusion – ‘a challenge to findings of fact’ – which bears little relation to what she says (though he does not actually cite the passage in Re L-B to which he refers):

[17] …..Moreover, in the decision of the Supreme Court of Re L-B (A Child) [2013] UKSC 8, FPR 2010 r 4.1(6) was confirmed by Lady Hale as being the procedure by which a challenge to findings of fact would be made. And so it seems to me on that extended definition of the rule this application could quite properly be fought at first instance rather than by way of appeal.

He then goes on to cite a practice direction as ‘standing in the way’ of his perception of a Supreme Court finding (though still without reference to Roult (above) of which he was aware since it is referred to by Gloster LJ in ‘Cart v Cart’ to which he makes reference in para [18] below):

[17] … The only obstacle standing in the way of that are the terms of Practice Direction 30A para.14.1 which states:

“The rules in Part 30 and the provisions of this Practice Direction apply to appeals relating to orders made by consent in addition to orders which are not made by consent. An appeal is the only way in which a consent order can be challenged”.

And it is for this reason that the wife seeks to challenge this order which is described as being by consent by means of an appeal.

The reference to para 14.1 cannot stand in the way of the law; though in fact the final sentence of the paragraph (without citing it) accords with s 17(1).

Mostyn J then holds – to this extent he proceeds according to SCA 1981 s 17(1); though he cites the practice direction as authority for his finding – that an appeal was the correct route for Mrs MAP to follow:

[18] I am of the view that the appeal route is mandatory in respect of a consent order made by a district judge where there is no real challenge to the validity of the consent order per se. So, for example, if a challenge is being made under the famous case of Barder v Barder, then it seems to me that the Practice Direction fully applies and the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal called Cart v Cart.

Appeal or a separate application

Since MAP v RAP the Court of Appeal have considered the set aside procedure in Gohil v Gohil [2014] EWCA Civ 274 (at paras [43]-[50] and [57]-[60]); but then concluded that in Gohil itself the jurisdictional issue did not directly arise since they refused Mrs Gohil’s appeal. Obiter the court suggested that an applicant may only either (1) seek to set aside on appeal (s 17(1) above; B-T v B-T [1990] 2 FLR 1); or (2) apply by fresh action (de Lasala v de Lasala [1980] AC 546; Robinson v Robinson (Disclosure) (1983) 4 FLR 102 perhaps under FPR 2010 Part 19).

In any case, said McFarlane LJ, there must be a staged process (at para [55]) in relation to non-disclosure applications:

  • ‘Gateway evaluation’: a judicial consideration of whether there is evidence to justify hearing a set aside application. The Ladd v Marshall [1954] 1 WLR 1489 guidelines (was there credible evidence which could not have been before the court below etc) would provide ‘sensible structure to evaluate any fresh material’.
  • The Livesey test: this involves assessment by the court, in the light of such admissible evidence as there is and by the ‘standard and the burden of proof applicable to a finding of fraud’ (1) whether there had been non-disclosure and, if so, whether (2) ‘it had been material to the proceedings that had been previously determined’ (see eg Sharland v Sharland [2014] EWCA Civ 95).

Capacity

In MAP v RAP the issue on which set aside would be decided was Mrs MAP’s capacity. For that she has permission to appeal – that is, in effect, permission to seek to set aside the order. The subject of capacity and its basis for setting aside an order must await another day.

The statutory position is clear: an application proceeds by appeal under SCA 1981 s 17(1) (and see Roult: a set aside application cannot go back to the judge who made the original decision). It may be that application can be made by fresh application.

Post-script: at para [18] Mostyn J refers to ‘Cart v Cart’ as follows:

[18] … the appeal route is the only available route. Indeed, this is a view that has been adopted by Lady Justice Gloster recently in a decision of hers – admittedly only refusing permission in the Court of Appeal – called Cart v Cart [2013] EWCA Civ 1006.

That was a case in which I represented the husband appellant; and as Mostyn J correctly says, Gloster LJ refused permission to appeal so the case is authority for nothing. It is true to say that Gloster LJ referred to FPR 2010 r 4.1(6) in the following terms:

[37] It cannot be said that, in relation to his ground relying upon an alleged Barder event, Mr Cart was not appealing at all, but rather asking the county court to set aside its own order pursuant to FPR 2010 r 4.1(6); and that, accordingly, all that Mr Cart was doing was seeking permission to appeal the refusal to do so by the county court. Not only does Barder itself make it clear that the correct characterisation of the process is an appeal; but also this court has made it clear in Roult v North West Strategic Health Authority [(above)] that, in circumstances where it is alleged that a subsequent unforeseen event has destroyed the assumption on which an order has originally been made, it is not appropriate for the original court to exercise its powers under CPR 3.1(7) (the CPR rule providing that a judgment or order may be set aside).

Lest it be thought that Mr Cart may have suggested that r 4.1(6) applied, I can assure anyone who is remotely interested in this relatively narrow subject: I would not have suggested it to Gloster LJ (she raised it herself). I have studied the point exhaustively over the past three years and I am well aware of what the Court of Appeal had said in Roult.

Brittany: an August afternoon

I walked along dappled lanes,

Deep between root-strung banks of dry layered clay.

The path was overhung with oak and beech,

With holy bush and elder,

With ivy and burdock and bramble.

Strands of summer mottled the air around me.

 

At my feet, as I walked,

Old dressed stone

Betrayed a thousand year history.

It was an old track now overlaid with dry leaves.

Sunlight dappled the path.

Petals of light danced on the ground ahead of me,

Spread through the shade of the canopy of overhung

And summered branches.

 

© David Burrows

23 August 2014

CONSULTATION: FAIRNESS, LAW AND THE ADMINISTRATIVE PROCESS

Fairness and family law reform

One of the very real difficulties in writing on consultation in the context of Sir James Munby is the unprincipled and autocratic way in which he administers the family court, and seeks – in effect – to legislate where he has no real delegated power so to do. So – as it seems to me – he has real difficulty in distinguishing between his judicial and his administrative capacities. He is a brilliant lawyer, a competent judge; but a breathless administrator with little co-ordinated long-term view of where he wants family law to go. (His thirteen fenestral musings do not forma clear family law philosophy or a view beyond the horizon, which is what family law now needs.)

Consultation is a term of art in administrative law and applies to Sir James as to any other administrator. This note can only consider the subject briefly, but its importance in the context of what is happening in family law reform cannot be overlooked. Whether six weeks or so in the summer is enough to comprise a proper consultation may have to be considered again later.

So yes, Sir James is but a civil servant in what follows. As an administrator I wonder whether he would be one to embrace the need for any form of self-denying ordnance as between his administrative law reform plans (as with the consultation documents under review in http://wp.me/p4jaDx-61 ), and his interpretative role as a judge? Does he warm, I wonder, to the words of Laws LJ, explaining separation of powers in a 21st century context (Sir James here is part of the ‘executive’), in R (Cart & Ors, on the application of) v The Upper Tribunal & Ors [2009] EWHC 3052 (Admin) [2010] 2 WLR 1012 (http://www.bailii.org/ew/cases/EWHC/Admin/2009/3052.html):

[37] The principle I have suggested has its genesis in the self-evident fact that legislation consists in texts. Often – and in every case of dispute or difficulty – the texts cannot speak for themselves. Unless their meaning is mediated to the public, they are only letters on a page. They have to be interpreted. The interpreter’s role cannot be filled by the legislature or the executive: for in that case they or either of them would be judge in their own cause, with the ills of arbitrary government which that would entail. Nor, generally, can the interpreter be constituted by the public body which has to administer the relevant law: for in that case the decision-makers would write their own laws. The interpreter must be impartial, independent both of the legislature and of the persons affected by the texts’ application, and authoritative – accepted as the last word, subject only to any appeal. Only a court can fulfil the role.

Legitimate delegation of powers

Courts are governed by the common law and by statute; or by delegated legislation where statute permits. The main delegated legislation to which family courts are subject is Family Procedure Rules 2010 as defined by Courts Act 1973 s 75 and 76. But as a matter of common law these rules can do no more than define the way in which a court’s existing jurisdiction is operated. This was explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586:

[8] … rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628.

Consultations under way

Readers of my blog earlier today will recall that the consultation subjects are:

• Recently issued draft standard orders (mostly child abduction and other High Court orders): consultation response date is 3 October 2014.

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014): consultation by ‘end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’: response by 3 October 2014.

Of these the following points arise here: that the court has no power to issue any more than ‘draft’ orders is obvious. The Judiciary office is but another body – like any publisher – who can issue precedents for court orders. These have no magic. There is nothing in any legislation – primary or delegated – which prescribes a power to standardise orders.

Of transparency and ‘vulnerable witnesses’ (an inaccurate and partial definition: to be considered on another day): both of these are areas beset by common law and statutory principles (as explained in http://wp.me/p4jaDx-60 ). They cannot be legitimately changed by court rule, still less by practice direction or presidential ‘guidance’ save where there is specific legislation which permits such change. The President cannot legitimately alter the common law by his sole dictat. He can administer – as he did in the February ‘Guidance on Transparency’; or, as he did there also, he can persuade his judicial colleagues of his view of the common law.

What is now suggested in these two consultation areas – especially on ‘vulnerable witnesses’ – goes much further. And if the ‘vulnerable’ witnesses job is done properly primary legislation is likely to be needed (not just a rule change as seems the present plan – para 13(ii) of their present very light ‘proposals and interim report’).

Consultation in a legislative process

Recently Longmore LJ in the Court of Appeal in R (ota LH) v Shropshire Council [2014] EWCA Civ 404 has considered the meaning of consultation in the absence of any specific statutory duty:

Consultation on what?
[21] In the absence of any express or implied statutory duty to consult, the obligation to consult stems from the expectation that a public body (such as a local authority) making decisions affecting the public will act fairly. If therefore a local authority withdraws a benefit previously afforded to the public, it will usually be under an obligation to consult with the beneficiaries of that service before withdrawing it. That obligation requires that there be a proposal, that the consultation takes place before a decision is reached and that responses be conscientiously considered.

This is an administrative exercise; and in acting as he the President is an administrator. He is part of the executive and subject to the constraints of any public body or civil servant to act ‘fairly’ (as Longmore LJ explains’).

Fairness is stressed by de Smith’s Judicial Review (2013) Ed Woolf et al at paras 7-053 and 7-054, where they adopt Lord Woolf (R v North & East Devon HA exp Coughlan [1999] EWCA 1871, [2001] QB 619):

[108] It is common ground that, whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken (R v Brent LBC exp Gunning [1986] 84 LGR 168).

The consultation is under way. The law is that it must be carried out fairly; and that must mean with an open mind. At present it seems to be the decision-maker – Sir James Munby P – who is the proponent of the consultation. Fairness, I would suggest, dictates that he stand back and let someone else receive the consultation on transparency – his view is hardly objective – and let them put forward any legitimate law changes arising from it. The voice of Sir James is but one; not the only voice from which the consultees must persuade him of another course.

As to how a consultation is conducted, Sir James and his office are respectfully referred to the principles for guidance at https://www.gov.uk/government/publications/consultation-principles-guidance updated to 5 November 2013. No period of time is recommended by the Guidance but the Cabinet Office does suggest that August should be ignored in computing the consultation period. So none of the periods above (on that basis) has yet started.

FAMILY COURT CONSULTATION: FIG-LEAVES AND FREUDIAN SLIPS

Consultation: the deluge and some dates

A few days ago I mentioned that there may be as many as five concurrent consultation exercises being undertaken in respect of the family courts (http://wp.me/p4jaDx-5Y ) , each – to a greater or lesser extent – at the behest of Sir James Munby President of the Family Division. It is not clear how he intends that any individual who is interested in the family courts should respond in time, especially if s/he would like to respond to the three awaiting responses.

Can such a hectic, and therefore superficial, consultation be in all reality a consultation; or is the consultation just a fig-leaf for what is, in reality, an administrative fait accompli? Anyone who is seriously concerned with family law reform is entitled to ask: is this consultation real, is it fair, and is it designed to achieve a democratic result?

Support for the fig-leaf theory includes:

• Response time is very short (mostly over August, when High Court judges and much of the bar who practice there are away). Two consultations end at the beginning of October, the other at the end of October.

• That when the Courts and Tribunals Judiciary office issued what Sir James – an autocratic law reformer, above all else – issued his ‘consultation’ entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ they (the judiciary office) described the paper as ‘proposals’. Proposals from a decision-maker are the antithesis of consultation. Is it a Freudian slip by the Judiciary office; or perhaps it hides the fact that Sir James’s ‘consultation’ is but a fig-leaf. It is not an auspicious start for a ‘consultation’.

Given the size of the Family Division and family court relative to other courts it does seem remarkable that there is so much – and such seemingly urgent – activity. Of the five outstanding consultation exercises in the Judiciary office, two relate to legal aid and the remainder to family courts. Why the rush, Sir James?

Of the five ‘consultations’ I referred to in http://wp.me/p4jaDx-5Y three must be completed in October 2014. The President – perhaps another Freudian slip – does not thinks to tell consultees by when his consultation ends (normally almost a sine qua non for a consultation):

• For such draft standard orders as have been recently issued (mostly child abduction and other High Court orders) – http://www.judiciary.gov.uk/publications/high-court-family-orders/ the consultation response date is 3 October 2014 (a Friday, so no last minute work on answers over the week-end).

• For the President’s paper entitled Consultation: Family Transparency – the next steps (19 August 2014) http://www.judiciary.gov.uk/publications/consultation-family-transparency-the-next-steps/ if you ask Sir James’s office you may be told that there is no formal closing date on but that replies are requested ‘ideally by the end of October [2014] at the latest’.

• For the ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.judiciary.gov.uk/publications/president-of-the-family-divisions-consultation-interim-report-of-the-children-and-vulnerable-witnesses-working-group-31st-july-2014/ response is requested, again by 3 October 2014

Of the remaining areas of consultation: no dates seem to be fixed for further consultation or reply:

• Report of the Financial Remedies Working Group – 31 July 2014 http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF

• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

Consultation is part of the administrative law concept of fairness, and is something which all administrators must follow. And in all this, it is important to recall that Sir James is not acting as a judge, but as a civil servant, a state apparatchik (and a powerful one). It is part of the democratisation of modern government and attracts special Cabinet Office guidance (see eg https://www.gov.uk/government/publications/consultation-principles-guidance). There follows, in a separate blog, a very short note on the law on consultation, administrative law and the need for fairness – and perhaps Presidential aloofness – in the consultative process.

‘TRANSPARENCY’: NOT ALL ABOUT CHILDREN: publicity after Cooper-Hohn

Case management, publicity and Cooper-Hohn v Hohn

The judgement of Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) raises important questions about publicity in financial remedy proceedings. The judge found herself required to give ‘a case management’ decision in a substantial money case where ‘accredited members of the press have been present, as they are fully entitled to be’ (FPR 2010 r 27.11(2)(f)). The question for her was: ‘[2].. the extent to which [the press] should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.’ The press were separately represented. Application was made for reporting restrictions to be lifted.

Roberts J refused to impose full reporting restrictions (as Mr Hohn wanted) but restricted the press, on terms which were less than Mrs Cooper-Hohn want, as follows (para 98 of her judgement):

The media shall be prohibited from publishing any such report that refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.

Roberts J describes her job (at para 61) on reporting restrictions as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. She concluded – looking at her decision through the prism of European Convention 1950 Art 8 (respect for private life) and 10 (press freedom); and perhaps Art 6(1) (right to a fair trial; administration of justice) – that she should make the restriction order (above). She resolved the parties and the press’s Convention rights as follows:

[176] I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.

A guide through ‘rocky terrain’: start from the common law

This article attempts to provide a guide through the ‘rocky terrain’ – limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. I shall suggest here that the best starting point is the common law, as summarised most succinctly in Civil Procedure Rules 1998 r 39.2.

First it is important to be clear as to the threefold categorisation of family proceedings: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960 s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960 s 12(1) are likely to be rare in financial remedy proceedings.

The starting point is the common law rule that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished ‘unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally’ said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469. This position is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’. CPR 1998 r 39.2(1) asserts: ‘The general rule is that a hearing is to be in public’.

This ‘open justice principle’ and its place in the common law was explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

Family proceedings hearings ‘in private’

Confusion in proceedings covered by FPR 2010 arises from the fact that FPR 2010 r 27.10(1) asserts that all proceedings under FPR 2010 shall be held ‘in private’. This suggests that there is a presumption of privacy for family hearings. The common law and Convention jurisprudence provides the opposite. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies. Nor is it clear on what underlying legal principle, statute or common law, the rule-makers derive their rules on attendance at private hearings (FPR 2010 r 27.11), especially of the press (‘accredited representatives of news gathering and reporting organisations’: r 27.11(1)(f)).

If tested it seems unlikely that FPR 2010 rr 27.10 and 27.11 would be found to be intra vires any established principle of law or Convention principle. Convention jurisprudence which is the starting point for any restraint on publicity (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn at [23]). Of the status of rules as law: rules ‘cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised’ (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, per Buxton LJ at [8]).

When in contempt of court?

This note therefore proceeds on the basis that, other than in proceedings covered by AJA 1960 s 12, any restriction of publicity, whether as to attendance at a hearing or of the reporting of a hearing, must be justified in law. Exceptions set up by the common law relate to the hearing of proceedings and, separately, to the documents in those proceedings and their ‘use’. These exceptions are set out in CPR 1998 rr 39.2(3) and 31.22(1). The first rule provides that a hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (r 39.2(3)(a); see eg the Leveller Magazine case (above)); the case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (r 39.2(3)(c)) which might have applied in Cooper-Hohn); and ‘the court considers this to be necessary, in the interests of justice’ (r 39.2(3)(g)).

A separate jurisdiction also arises from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides ‘use’ questions and the publication of proceedings overlap. CPR 1998 r 31.22 provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

There is no equivalent to rr 39.2 or 31.22 in FPR 2010. The court has a separate power to restrict the use of parties’ names (CPR 1998 r 39.2(4) which was at issue in eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), Mostyn J.)

Publicity in financial remedy proceedings

Issues of publicity for a hearing or of documents therefore arise in financial remedy proceedings in the following contexts:

(1) Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
(2) Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
(3) Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
(4) Even if (3) applies, whether a party can be restrained from use of the document.

The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

Reporting of hearings in open court

CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. A search of Family Law Online reveals references to the rule only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108; though in DE v AB [2014] EWCA Civ 1064 Ryder LJ dealt with privacy without any reference to r 39(3)). In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.

Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

If a document has been referred to or read in open court it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are like to be resolved (see eg Allan v Clibbery) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)) as Mr Allan tried unsuccessfully to do.

Release of documents to a third party

A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents. Each case, he emphasised, turns on its own facts (Crest Homes v Marks [1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

Conclusion

A number of the principles which arise here – and which arose in the Cooper-Hohn interim hearing – cross over from (say) an initial application for a case to be in private (CPR 1998 r 39.2(3); ie to lift restrictions on publicity in financial remedy proceedings) to the separate question of whether the court gives permission for use of documents otherwise restricted from release by their having been disclosed but not referred to in court. The first point for any applicant under these areas of law is to be clear into which category of publication of a hearing or release of documents the application arises, and then to apply the principles outlined above to the application in question.