#MEDIATION: WHEN WITHOUT PREJUDICE IMMUNITY BITES?

Without prejudice rule immunity: and is there a different rule for family cases?

Where parties to a dispute attempt to settle a dispute, but fail and later end up in court, when does the without prejudice rule apply? When does their immunity from production in court of information as the content of negotiations start? And, whatever the answer to those questions: is there a different without prejudice rule immunity (WPRI) for family cases and for commercial negotiations (till now commercial cases have created much the case law)?

Whether WPRI applies to documents produced by one party has been considered in the Family Division in a couple of recent cases. The applicable law was helpfully reviewed in the Employment Appeal Tribunal by HHJ Hand QC in Portnykh v Nomura International plc [2013] UKEAT 0448-13-0511 (obtainable via http://www.eversheds.com/global/en/what/articles/index.page?ArticleID=en/In_house_counsel_ebrief/UK_HR_IHC_ebriefing_Termination_negotiations_and_the_without_prejudice_rule). Portnykh provides a modern summary of WPRI and how it operates in connection with negotiations (and see my https://dbfamilylaw.wordpress.com/2014/04/28/portnykhs-complaint/).

Common law divergence: personal v commercial disputes?

To what extent is the common law the same for commercial and employment disputes, and for disputes on family breakdown? The easy factual answer is that the judges in the employment cases went in the opposite direction on WPRI to the family judges; but to accept that as the answer would be jejune. As will be seen proximity to the real dispute seems to be the criterion; but what is the dispute? How – where need be – is it to be defined that a dispute is truly incipient. To say the relationships in the family cases below were ‘troubled’, both couples would have agreed, would be an understatement; yet neither Family Division judge say it as enough to perceive litigation to be ‘proximate’.

The commercial arena first: Judge Hand develops his judgement from the authoritative Framlington Group Ltd & Anor v Barnetson [2007] EWCA Civ 502. These two cases and their definition (alongside Robert Walker’s judgement in the seminal Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436) of WPRI in commercial cases seen alongside BE v DE [2014] EWHC 2318 (## is difficult similarly to categorise since Roberts J refused permission to appeal) may

In Framlington Auld LJ took as his starting point the following definition of the rule, which he had said ‘may have two bases’:

[24] The first and more commonly advanced basis is one of public policy, namely, to encourage those in dispute to settle their differences without recourse to or continuation of litigation. It is on this basis for the rule that Framlington mainly rely. The second, albeit of limited application and of doubtful legal respectability (David Vaver, ‘“Without Prejudice” Communications – Their Admissibility And Effect’ [1974] U Br Col LR 85, at 97-101, an article commended in Phipson, para 24-14, n 47) is contractual, that is, where the parties agree expressly or impliedly that it should apply

However, from what date can it be said that the immunity applies if litigation battle lines have not yet clearly been drawn (eg one party, or neither, have yet instructed lawyers; or no court claim has yet been filed)? Does attendance by both parties for mediation, where they become reconciled for a period, guarantee immunity for the earlier mediation? Or what about a private meeting where one part wants to propose settlement, the other wants reconciliation?

And are matrimonial cases different from other financial disputes?

General propositions: ‘how proximate’

This question matters; and it surely matters a lot to mediators? If WPRI applies parties can admit that they have cash available to buy the other out, or that they really are content with staying contact only once per month (yes, WPRI applies to children cases: see eg the first Court of Appeal (Bingham MR and Butler-Sloss LJ) mediation case: Re D (Minors)(Conciliation: Privilege) [1993] 1 FLR 932, CA). These admissions against interest cannot be reported back to the court if without prejudice immunity applies.

By contrast if a mediator permits discussions to take place at a time long before proceedings ultimately commence, and those discussions are held not to be subject to WPRI – whatever everyone may have assumed – then unguarded admissions may be referred to the court. An agreement between the parties and the mediator that without prejudice confidentiality applies may suffice; but, in law, the point is at large.

Framlington v Barnetson and Portnykh were both employment cases, and in both it was held that the rule applied: information exhibited in the first by the employee should be redacted from his statement; and in the later case employer’s statements (where a former employee made concessions in relation to his employment and redundancy) were to be removed from their case.

Portnykh relies closely on Framlington where Auld LJ explained his view of when WPRI applies as follows:

[32] The question remains, how proximate, if at all, must unsuccessful negotiations in a dispute leading to litigation, be to the start of that litigation, to attract the “without prejudice” rule. Must there be… an express or implied threat of litigation underlying the negotiations, or, failing any such threat, some proximity in time to the litigation eventually begun?… If the privilege were confined to settlement communications once litigation had been threatened or shortly before it is begun, there would be an incentive on both sides to escalate their dispute with threats of litigation and/or to move quickly to it, before they could safely start talking sensibly to each other. That would be a slippery slope to mutual hardening of positions and commencement of litigation – hardly the encouragement to settle their disputes without resort to litigation that Oliver J had in mind in Cutts v Head.

So, asked Auld LJ (para [33]), where should the line be drawn between ‘to promote the public policy interest’ in settlement, whilst not ‘wrongly preventing one or other party to litigation when it comes from putting his case at its best’ (the side of the line chosen in in both family cases below). He has been taken to no cases which assisted him: ‘The various judicial pronouncements in the leading cases to which I have referred do not provide any precise pointers, and there are seemingly no other authorities directly in point.’ But, he concluded: it was not only a question of how proximate was litigation but rather of a definition of ‘subject matter of the dispute’. Was potential for dispute inherent in the parties respective circumstances (and this note will say that this point is critical in the family context). Would the ‘parties [have] contemplated or might reasonably have contemplated litigation if they could not agree’?

[34] However, the claim to privilege cannot, in my view, turn on purely temporal considerations. The critical feature of proximity for this purpose, it seems to me, is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. Would they have respectively lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid the need to go to court over the very same dispute? On that approach, which I would commend, the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree….

Family breakdown cases

The proximity – or contemplated proceedings – question has recently cropped up in two family money cases (one MCA 1973 and the other TLATA 1996, but nothing turned on that as far as the Family Division judges were concerned). In BE v DE [2014] EWHC 2318 (Fam) Bodey J the issue was whether a ‘post-pre-nuptial’ (the husband’s term) agreement (‘the document’) was part of a negotiation for settlement of an incipient matrimonial dispute (where both parties – unknown to each other: yes, really – had filed ‘protective’ divorce petitions in different jurisdictions); but where the wife said the document was presented to her at a dinner where she thought she was to be discussing reconciliation. (She wanted to be able to use the document as evidence that she was resident in England.)

SC v YD [2014] EWHC 2446 (Fam) was an appeal, where Roberts J refused permission to appeal (oddly, given the important debate she conducted on law), but in so doing made a series of what might otherwise have been findings. What she said is only persuasive. (It is unclear to me why she did not give permission but dismiss the appeal.) Again, this case related to a document produced by SC/SD (the man) to YD as a proposal to settle; though neither was at that stage involved in litigation. The status of the document arose in Children Act 1989 Sch 1and later linked TLATA 1996 proceedings issued by YD (the woman)).

In contrast (it might be said) with the employment cases in neither of the family cases was WPRI said to apply. A cynic might observe that a state of incipient litigation is such a component of any male/female relationship that it would be impossible to define at what point the Auld LJ dividing line (‘[33]…It is undoubtedly a highly case sensitive question, or put another way, the dividing line may not always be clear’) is reached. Secret ‘protective’ petitions is not enough (perhaps the subjective element of consensuality was lacking); though an agreement to attend jointly for discussion with a mediator must surely be generally sufficient agreement that parties are on the WPRI side of the line. We’ll see….

ADVICE PRIVILEGE: A POINT OF RETAINER

… and when does SRA regulation start to run?

At what point in the life of legal advice can it be said that what a person has said to a lawyer – solicitor or barrister – is covered by legal advice privilege (LAP); and, perhaps by the same definition, at what point is the lawyer’s insurer on risk?

Yet, in these regulated times – when a lawyer’s every move, qua lawyer, is capable of review by a regulatory body; and many lawyers practice accordingly – a surprising feature of outcomes focussed regulation by Solicitors’ Regulation Authority is that the SRA seem not to do not know when their regulatory reign over a lawyer begins. The regulators have no barometer of which I am aware by which they can measure the critical moment – the scintilla temporis – at which lawyers are clearly within their regulatory clutches.

This note will say that that point in time is exactly the same as that which will be of concern to a lawyer in terms of when LAP arises on what has passed between him/her and an advised individual; or to an insurer if they are to be on risk under a firm’s professional indemnity insurance policy. At that point, it seems to me, it can be said a lawyer’s retainer contract is in place; and surely at that point the regulator net closes also?

It is therefore important to define – sometimes to the minute (as the examples below show) the scintilla temporis at which a contractual retainer arises. And certain it is, that SRA do not regard themselves as having any arbitral role in defining this point. They have no means in their present state of administrative uncertainly of defining when they their jurisdiction can be asserted. At least that is what I infer from what they tell me.

Retainer: a contract

A solicitor’s retainer is based on contract law: a solicitor is instructed to act by a client in ‘a relevant legal context’ (a term used by Taylor LJ in the context of his definition of legal professional privilege in Balabel v Air India [1988] Ch 317, CA). In most cases it will be for a consideration (eg payment of agreed costs); but not invariably. If the advice acts on the mind of the person advised, that is sufficient. It is sufficient even if the advice does not cause the advised in any way to alter their position (ie to act on that advice); though in most circumstances some change of position (however slight) will be the result.

The moment a lawyer gives legal advice (ie not information about bus time for coming to a meetings, or as to what a client should wear if it rains on the way home from court) s/he is working in a relevant legal context. And indeed, the incidence of advice privilege may prove to be the critical feature.

Advice privilege and the ‘legal context’

Two examples from a family law context will serve. In both an independent financial adviser meets Rachel Boxley (RB), a lawyer with a specialist family law Birmingham firm. The occasion is a marketing event hosted by Thefamilylaw.Com (FLCo), RB’s firm, at the local rugby club. Over his third glass of wine Ian tells RB that his own marriage has broken down, he is seeing his two children hardly at all and that he is bleeding himself white financially: he pays, he says, the mortgage on their house and substantial maintenance. Next Thursday he and his ex are to have their fifth session with a mediator who seems to be taking things nowhere and to agree with her all the time. RB says she cannot see how he can be expected to pay all that maintenance and for the mortgage. She gives Ian her card (she is there to pick up clients, after all) and says to him to give her a ring soon.

When he comes in for an appointment, five months later, RB is troubled to find that he has a possession action application from the mortgagees of his house, a letter from his wife’s solicitors, a divorce petition and a letter from the Child Maintenance Service (formerly Child Support Agency). Mediation failed when the mediator expressed distaste, and his wife vehemence, that he appeared to want the children thrown out of the family home. A bout of reactive, but severe, depression prevented him making an earlier appointment. He has not the means to pay the mortgage arrears. He attributes to RB’s advice that he should not pay his mortgage any more – as he saw it – much of his present difficulties, of the failure of mediation and total loss of contact with his children. Will RB warn him in terms of SRA Code of Conduct 2011 Ch 1 IB(1.16) (the firm may have made a mistake) and O(1.12) (a conflict may exist in consequence); and will FLCom’s insurers see it in the way that Ian does, if RB cannot resolve his difficulties?

In a second case RB meets another local professional, Paul, at a party. Out of the blue, but knowing RB is a solicitor with a family law firm, Paul tells her (almost as if he has decided finally to confess, that evening) that he and his wife are involved in court proceedings over their third child, Colin. He was found with injuries to his upper body which – say the doctors – can only be explained by his having been shaken violently and put back in his cot. They have been to court – Paul’s voice breaks a little, and he looks away. Colin is in temporary care. Neither parent admit that they could have been responsible; but Paul now feels he needs to find a way to tell his wife, the doctors, social workers – his own lawyer – that he is willing to admit to having shaken his little boy and – perhaps – to have caused the injuries. RB looks around for the firm’s child care expert Norma Hartnov. She introduces Ian to NH and the three of them, in a secluded corner, talk about what Paul has said. He will need separate representation. NH says FLCom is happy to act.

Legal advice privilege: Prudential and Derby Magistrates’ case

For present purposes ‘privilege’ entitles a person to refuse to put otherwise relevant evidence before a court. In family proceedings it takes four main forms (considered in more detail in [2014] Family Law ): legal advice privilege (see below); litigation privilege (said not to apply in some family proceedings (Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731) which enables a litigant to collect evidence in confidence (ie it cannot be forced to be revealed by him/her) for a case); self-incrimination privilege (the right to tell others to mind their own business: per Lord Mustill in Reg v Director of Serious Fraud Office, exp Smith [1993] AC 1 at 30-31, but vulnerable to other disclosures pressures in family proceedings); and the immunity (or ‘privilege’) said to arise from the without prejudice rule (an implied contractual arrangement between parties seeking to settle disputes).

At the beginning of 2013 Lord Neuberger gave a modern definition of legal advice privilege as follows;

[17] Where legal professional privilege (“LPP”) attaches to a communication between a legal adviser and a client, the client is entitled to object to any third party seeing the communication for any purpose, unless (i) the client has agreed or waived its right, (ii) a statute provides that the privilege can be overridden, (iii) the document concerned was prepared for, or in connection with, a nefarious purpose, or (iv) one of a few miscellaneous exceptions applies (eg in a probate case where the validity of a will is contested)….
[19] [It] applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which “relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law” (Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610 at [38] per Lord Scott).

Lord Neuberger then identified three particular points concerning legal advice privilege which he identified from recent case law:

[21] First, LAP exists to ensure that there is what Justice Rehnquist referred to in the Supreme Court of the United States as “full and frank communication between attorneys and their clients”, which “promote[s] broader public interests in the observance of law and administration of justice” (Upjohn Co v United States (1981) 449 US 383 at 389, quoted by Lord Scott in Three Rivers (No 6) at [31]. As Lord Scott went on to explain (at [34]) the principle “that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills …, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else” is founded upon “the rule of law”.
[22] Secondly, LAP exists solely for the benefit of the client. As Bingham LJ said in Ventouris v Mountain [1991] 1 WLR 607, 611, the expression “legal professional privilege” is “unhappy” in so far as it suggests that the privilege is that of the legal profession, when it is “the client who enjoys the privilege”. Thus, as Lord Hoffmann pointed out in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 at [37], “[i]f the client chooses to divulge the information, there is nothing the lawyer can do about it”.
[23] Thirdly, LAP is a common law principle, which was developed by the judges in cases going back at least to the 16th century – see Berd v Lovelace (1577) Cary 62, which, together with subsequent cases, is discussed in the opinion of Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court, Ex p B [1996] AC 487, 504-505….

The R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513 provides a stark example of LAP in play. The applicant B had been charged with murder of a young girl. He confessed to the police, but later changed his story. He said that his stepfather had killed the girl. B was tried and acquitted; and the stepfather was then charged with the murder. At his committal for trial, B was called as a prosecution witness. During the defence cross-examination he was asked about the version of events he had given to his solicitors in his original account of what had taken place. He declined to waive privilege. The stepfather then obtained from the stipendiary magistrate a witness summons requiring B’s solicitor to produce all attendance notes and proofs of evidence disclosing B’s factual instructions in defence to the charge of murder but not the advice given to him by solicitors and counsel. B applied successfully in judicial review for the quashing of the witness summons. What he had said to his solicitor was covered ineradicably by LAP.

Legal advice privilege and inception of a retainer

When Paul spoke to RB and then to NH as he did, LAP would prevent either of the solicitors (and the same would apply if they had been barristers) repeating what he said; and if it could be said he spoke in a relevant legal context. Each of RB and NH are lawyers and are subject to LAP (see eg the Prudential case (above)). He knew that they were lawyers. If Paul changed his story, or was simply unwilling to waive his privilege, it is inconceivable that anyone – as with B in the Derby Magistrates’ case – could require NH or RB to repeat what he told them, whatever the context (even, and including, in Children Act 1989 Part 4 (care or ‘public law’) proceedings).

Ian suffers the prospect of further loss from his stopping of mortgage payments; or so it appears at this stage. It seems this arises directly from what he was told, at a similar function, by RB. Was the context legal? Certain it is that Ian thought he was talking to a lawyer, and altered his position as a result of what she said to him – that is, what she advised.

Inception of the retainer contract

So does a contract of retainer arise in either of these cases? The three defining features of a contract in general terms, and in the context of a solicitors’ retainer in particular, are as follows:

(1) Intention to create legal relations The act of seeking advice from a lawyer shows an intention in him/her to create legal relations and, for example, causes LAP to bite;
(2) Offer and acceptance: (a) the providing of information to an adviser in a relevant legal context, (b) the offer of advice and (c) the altering (albeit only fractionally) an individual’s position based on that advice, comprise the offer/acceptance component of a contract; and
(3) Consideration: an implied term of the above is that the lawyer can charge: in consideration of my giving advice to an individual I may render a bill (that I chose not to do so, does not lessen the fact of my right so to do: consideration passes whether I charge or not).

It follows: at the point where a solicitor starts to respond to information given by an individual who expects to receive advice, and the solicitor advises in consequence, then a contract of retainer is created. LAP applies to any confidential information and the potential for a claim for professional negligence (however slight) is at large. The professional indemnity insurer is on risk. And, arising from the first paragraph of this note, for good or ill, the baleful maw of Solicitors’ Regulation Authority closes.

FAMILY LAW, LEGAL AID – AND A BRAVE NEW WORLD FOR MEDIATION

Silence of the family law legal aid lambs

The three headlines below appeared one above the other in the e-version of Law Society’s Gazette on Christmas Eve. In combination they say a lot for the state of family law – and perhaps of family lawyer’s leadership (such as the Law Society, Resolution and Family Law Bar Association) – at the start of 2015:

• ‘Grayling faces new year test over legal aid’ (the first headline) relates to the achievement of the criminal lawyers to challenge and, by oral interim hearing (an achievement in itself) to seek to persuade the High Court to suspend the tender process: a decision is expected on 30 December 2014.

• ‘Exceptional case legal aid’ relates to R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 and the clutch of immigration cases which successfully – and privately (ie no help from representative bodies) challenged the Lord Chancellor’s Guidance on exceptional case determinations (ECD) under Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3).

• And then ‘Representation slumps in family law’. That legal aid has been reduced so substantially was to be expected; but how, in truth, has it come to be so bad for financially eligible family law clients and their would-be lawyers; and how is it that representative bodies have done so little of real assistance to help their members and their members’ clients? Why, for example, is there no family law equivalent – yet – of Gudanaviciene?

Resolution’s resolution of legal aid negotiations

In relation to the headlines above, the following points arise:

(1) Gudanaviciene and ECD – so yes, where was a Resolution (or Law Society) challenge alongside Gudanaviciene (though Law Society was there for us when JG (see below) was in issue)? ECD affects family law cases quite as much as immigration cases; yet where is Resolution teaching on human rights, Law Society support for court challenge, or FLBA advocacy to rubbish the unlawfulness of the Lord Chancellor’s Guidance? If it is there, I have not heard about it. Family law cases were successfully applied for in 8 ECD cases over the early period of LASPOA 2012. Is that not testimony to the pusillanimity of many family law legal aid lawyers and their representative bodies?

(2) Statutory charge – one of the sillier 2012/3 ‘reforms’ to legal aid was that Ministry of Justice jettisoned the vast majority of its banking arm, which at times of very low interest rates was netting the tax-payer a cool 8% per annum, a massive lift on what you or I would get at Santander (even allowing for the cost of administering it). We all knew that much legal aid was only a loan, waiting for the statutory charge to bite and the tax-payer to cash-in its 8% per annum simple interest. And any associated private law children and domestic violence cases would be tacked on. I wonder what the family lawyer negotiators said to the Ministry of Justice about that at the time; and what net loss there has been to the Ministry of Justice from losing (a) that nice little uplift on interest charges and (b) the statutorily charged bits of litigation (eg child arrangements fights) which will not now be charged because financial remedy work is not legally aided.

(3) Challenge to the Lord Chancellor – on any of the above subjects, or indeed any other, Resolution has taken no active part. (Unlike the Law Society, Resolution took no open part in the family law legal aid case of JG v Lord Chancellor and ors [2014] EWCA Civ 656 so far as I know: even I sent some notes on a couple of points to the silk used by Law Society, at his request). I would guess that many of its legal aid members – and many more would have legal aid, if a statutory charge challenge had been mounted – would have liked Resolution to take the fight to the Government; but if your main negotiators are mediator this will leave your negotiations in a compromised position; one hand at least strapped behind the collective back.

The legal services order gap

For, so it is: one of Resolution’s main negotiators was Dave Emmerson OBE (he accepted a gong from the Government, and sought to represent lawyers against its latter emanation Ministry of Justice). I taught legal aid with Dave just after LASPOA came in (in May 2012). He told us all – to camera – that he thought LASPOA had finally introduced the interim lump sum in family proceedings (originally in a schedule to Family Law Act 1996: now but not then repealled). I later asked Dave where he found this provision. Silence.

I suspect he meant the new legal services orders in LASPOA ss 49-54 which, for present purposes, introduce a new s 22ZA into Matrimonial Causes Act 1973 to enable certain applicants in financial remedy proceedings to apply to the court for the other party to pay part or all of their costs. (The common law provides an equivalent provision in the form of costs allowances in other forms of family proceedings.) As far as I know none of the usual suspects above – Resolution, Law Society etc – provided any immediate education or other help to its members on the legal services order and costs allowances subject, certainly as it was being introduced in April 2013. (By that time most of Resolution National Committee had still not found out that the family court had then reached the statute book: per Crime and Courts Act 2013 Sch 10.)

Resolution and the Law Society (and, the Bar Council, I am sure) negotiated – no doubt with gusto, nay ‘resolution’ – in the run-up to LASPOA. But, there is surely a real conflict in the same organisations – especially the mediation-obsessed Resolution – espousing the parallel mediation route; whilst simultaneously – as must be the inevitable consequence – rejecting the litigation route. For litigation is a route which many of its members and their clients must tread. I doubt this conflict has been, in any realistic way, debated by – for example – the Law Society or Resolution (it did not crop up at Resolution’s 2014 AGM).

Mediation in 2015: nothing to do with legal aid or Ministry of Justice

I appreciate that much of Resolution’s efforts are to ‘#keepitoutofcourt’: to stop its member’s clients going to court. However, facts must be faced:

• There is a real issue about lawyer litigators (like me and lots of other Resolution members) working too closely, in formal business terms, with mediators. The conflict inherent in having mediators and litigators as partners in the same firm must be debated, at least.
• The failure of Resolution to come near its strap-line – ‘First for family law’ (ie the ‘law bit’) – would be laughable were it not so serious. Most of Resolution’s golden fresh eggs are hatched out on mediation projects; yet its first responsibility – it could be argued – should be to its law and court roots. The rule of family law suffers as legal aid dwindles; yet the Resolution chair adopts an approach to the law of ‘privilege and confidentiality “for dummies” (sic: see Resolution review of November 2013)’. On law Resolution members said to be ‘dummies’.
• Not every person whose family breaks down manages to settle their case out of court.

‘First for family LAW’

And so this note comes full circle. Mediation is nothing directly to do with the courts (save with consent orders in marriage etc cases). It is to do with family break-down which may – just may – involve court and litigation. Yet where family breakdown cannot be resolved by agreement – domestic abuse may make this difficult in a substantial proportion of cases, for example – court, certainly at the outset, may be inevitable. Then the ‘#keepitoutofcourt’ concept, to many court customers, sounds as if it comes from another world.

And in that real litigation world, real law, and the rule of law, and human rights and EDCs and all the inconvenient aspects of life which litigation has to pick up, come into sharp focus. ‘Black-letter’ law – a term derided by many Resolution members – becomes what keeps people protected (the lawyer’s true role; and why he or she must know the law) from wrong-doing by public authorities and by other parties to their family breakdown process.

In logic mediation and litigation must be kept separate; though like prophylactic and invasive medical treatment the mutual understanding of their practitioners is important. In 1978 when we first went to see the then Solicitor General, we though conciliation – as mediation was then called – would be state-funded, probably by the Home Office (divorce court welfare was part of probation in those days: there was no Ministry of Justice then and the Lord Chancellor had no budget to speak of). And yes, there was reckoned to be a strong law/court aspect to mediation then; though the thrust for implementation of Finer (Report of the Committee on One-Parent Families July 1974 Cmnd 5629 chaired by Sir Morris Finer) came at first mostly from social workers not lawyers.

In 2015, 40 years after Finer, mediation must be parallel, not parasitic. The complementary roles of mediation and of litigation must be clearly defined; and generally mediation – in all real senses – should surely be prior? If mediation is so often in-house to lawyers – that is, under the same professional roof – separation of the distinct family breakdown roles will be difficult.

Parallel roles, separate funding

And in 2015, who really sees sense in mediation as the poor relation, and being umbilically linked to courts and litigation, or in any way funded, by the Ministry of Justice? Who, in logic (as opposed to tired old faut de mieux inertia) sees mediation as anything to do with courts and HMCTS and the Lord Chancellor? Is that not – in truth – a contradiction of what mediation seeks to achieve? It is a little like trying to eradicate smoking; but giving medical care for former smokers to the tobacco industry (not the most happy analogy; but I hope it illustrates the point?).

In the brave new lawyer-free – but law court parallel – world which it demands, mediation should have nothing to do with the tired old Ministry of Justice. And it should have nothing directly to do – if conflict rules apply – with lawyers’ practices and their important, but separate, litigation worlds (save a full and educated understanding of that world; but that is a subject for another day).

Legal aid, support for a real rule of family law and tax-payer banking measures (where property is in issue) will remain in the litigation world (the ‘telegrams and anger’ world, where mediation does the ‘only connect’ of Howards’ End: EM Forster). The world of courts and the Ministry of Justice and the newly politicised semi-literate Lord Chancellor is not a world for mediators. And negotiations for legal aid will be by people – like the criminal lawyers – who are willing to point a writ (well, a judicial review claim form) at the Lord Chancellor rather than allowing his and his department’s political voraciousness (Grayling is an ambitious political pole-cat, in the Tebbit mould) to exclude them.

A CHRISTMAS DRAFTING CHALLENGE

A common law message for Christmas

At this time of year we celebrate the birth of a man who enjoined poverty on his followers with the giving of often expensive presents – those who can afford it, anyway – to each other; so it seemed to me to be a good time to celebrate some of the conflicts inherent in our English legal system and to try a little amateur statutory drafting. But first some Christmas paradoxes.

The head of the English (‘Anglican’) church is one of the richest women in the world (though women could only become bishops in that church a few days ago). She is the English equivalent of the Pope. (The present Pope is a priest who is attracted by the ideal of poverty, and there the equivalence with Elizabeth II breaks down still further). The Queen is head of our judiciary (justice is done in her name) and legislature (legislation must assented to by her); and has power to dismiss the executive (the Government).

Her position in the church is a form of compromise which grew from the Reformation under Henry VIII and has been preserved, with substantial chips from the English/Welsh (and later Scottish) constitutional settlement ever since (including Coke’s use of judicial review against the king – James I – himself). And it leaves swathes of our law unwritten. It follows from that that – at least in theory – it is necessary to read everything first before you can say what the law is; for to define the law in many areas it is necessary to hear the silence, that is to say what the law isn’t before you can say with confidence what it is.

Ten Commandments as default law-giving

And so, with Christmas spirit about us, let us look at law in the Bible. I think first of the Ten Commandments as supplemented by the New Testament. (I put no religious spin on this: I regard ‘religion’ and Bible law-giving as simple contemporary politics.)

Parliamentary drafting is in very similar terms to the Ten Commandments. Eight commandments are written in negative terms like many English statutes. The first three negative ones are puffs for the Old Testament god: – have ‘no god, but me’, no graven images etc etc. Next are two positives: keeping the Sabbath and honouring ‘thy father and mother’. Finally Moses takes his readers back to classic negative (which by default become positive: ie you can do everything else) statutory drafting:

Thou shalt not kill
Thou shalt not commit adultery
Thou shalt not steal
Thou shalt not bear false witness against thy neighbour
Thou shalt not covet thy neighbour’s house, thou shalt not covet thy neighbour’s wife, nor his [servants], nor his ox, nor his ass, nor any thing that is thy neighbour’s.

In the English common law, murder is still common law (ie not on the statute book); and adultery is straight politics: how inconvenient it must be in a tight knit society if husbands and wives can sleep around.

English law-making is either common law (ie to be found in ‘the books’: judges’ rulings on what society expects); and or statute law (to be found in statutes and delegated legislation). For example, English common law guarantees a ‘fair trail’ in open court (and for good measure this is incorporated into European Convention 1950 Art 6(1)). And this is the critical point: if it is not in an Act of parliament or in the books, an English person can do it: anything goes if it is not forbidden. This is the English person’s freedom: with a written Constitution you have to look in the law to find out what you may do.

Love thy neighbour: the Christmas challenge

The New Testament added a third positive commandment: ‘Thou shalt love thy neighbour as thyself’, which some people (with much force, I believe) say is the basis of true non-state socialism. It is the end point for a true Beveridgeian model. (It was from Beveridge – through Rushcliffe spectacles – that legal aid started in 1949.)

The Christmas challenge for readers is to turn that further new commandment – ‘love they neighbour as thyself – into English parliamentary negative drafting. The first thing is to update the term ‘love’ in this context. ‘Respect’; ‘have consideration for’; ‘care for’ or ‘look out for’: any or all of these probably work. It connotes a sort of do-as-you-would-be-done-by attitude to other people.

A reader of the statutory provision can be taken to know that anything is permitted in the particular area of respecting, being considerate for, a person with whom you are or might be in contact, save where it is forbidden. How can this be expressed in negative statutory drafting terms?

A topical example of negative drafting is Administration of Justice Act 1960 s 12:

12 Publication of information relating to proceedings in private
(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the following cases, that is to say—
(a)where the proceedings—
(i)relate to the exercise of the inherent jurisdiction of the High Court with respect to minors;
(ii)are brought under the Children Act 1989; or
(iii)otherwise relate wholly or mainly to the maintenance or upbringing of a minor;]

Publication even private proceedings – ‘any court sitting in private’ – is not out of bounds (‘shall not of itself be a contempt of court’) except in three categories of children proceedings (ie most non-criminal forms of children proceedings). From those three negatives – private (no-one allowed into court), not children proceedings, not a contempt of court – the reader has to work out what he or she positively may do in relation to family proceedings (the list runs from (b) to (e); but none other than (a) obviously relates to family cases).

So ‘to love thy neighbour as thyself’ is to be expressed, please, in modern negative statutory language (more than one sentence is permitted), fit for a 21st century public?

McCARTNEY’S WAY OUT

Supplemental petitions are back

Readers may recall that Sir Paul McCartney and Heather Mill-McCartney were to be embroiled in a defended divorce on cross-allegations of unreasonable behaviour. They were rescued from a public defended divorce by the ruse of agreeing to proceed with their ancillary relief claim, to be followed – when, later, the time came – by the petitioner filing a supplemental petition based on Matrimonial Causes Act 1973 s 1(2)(b) (living apart for two years with consent). Their two years had not elapsed when their well-publicised financial proceedings were dealt with.

Probably by oversight, and careless of the boon of this procedure to Sir Paul and Mills-McCartney, the Family Procedure Rules Committee failed to include reference to supplemental petitions (they remain petitions in relation to divorce and judicial separation: MCA 1973 s 1(1)) in Family Procedure Rules 2010. And thus one of the sillier procedural passages in the life of Family Procedure Rules 2010 followed a couple of years later. In Kim v Morris [2012] EWHC Fam 1103 Parker J held that this omission of the right to file a supplemental petition was ‘a deliberate omission, and effects a substantial and important change in procedure’. She did not state her source for finding the omission to be ‘deliberate’; and she did not explain how she overcame the point that withdrawal of a right must be express, not inferred from silence.

Kim v Morris

In Kim v Morris a couple had separated in 2006. The wife obtained a decree nisi on H’s adultery (undefended; MCA 1973 s 1(2)(a)). H filed form A (application for a financial order); but the parties then resumed cohabitation in late 2006 and lived together till towards the end of 2010. W wanted to pursue her 2006 divorce. She alleged that throughout their reconciliation H had continued to commit (unadmitted) adultery. H wanted to proceed with a divorce petition in Singapore where he was now habitually resident.

If the court could rescind her decree nisi, W could file a petition supplemental to her 2006 petition. If she could not then she must start again; but H was ahead of her with his petition in Singapore. Her petition must be dismissed. Her marriage dissolution and financial proceedings would go ahead in Singapore.

I do not know whether anyone has been caught out like Mrs Morris as a result of this decision, or because of the silence of the new rules. But now, to any beleaguered petitioner who needs to prove supplemental facts, help is at hand. Family Procedure (Amendment No 4) Rules 2014 add a new FPR 2010 r 7.13 to the 2010 rules. The new rule includes:

(2) Unless [an application for a decree nisi has been made]…—
(a)a party making an application for a matrimonial or civil partnership order may amend the application at any time before an answer to it has been filed;
(b)a party making an application for a matrimonial or civil partnership order may make a supplemental application at any time before an answer has been filed;
(c)a party who has filed an answer may amend the answer.

Supplemental petition: the difference

But why does it matter: amendment, supplemental? What’s the difference? The difference is that a supplemental petition/application dates from the date of the additional petition/application, whereas the amended petition dates from the date of the original pleading.

Thus if a couple agree – say in mediation – that they will proceed on a petition under 1(2)(d) instead of on unreasonable behaviour (eg filed soon after separation, and as did Heather Mills-McCartney and Sir Paul) they would file – in the same cause – a supplemental petition. They cannot amend since the facts they are now pleading did not exist at the time of the original petition. The court fee and associated costs for this exercise would be appreciably less than for seeking leave to file, and filing, a fresh s 1(2)(d) petition.

The same would apply where a petition was proceeding under s 1(2)(b), which was the subject of an answer (defended). The respondent agree to accept an adultery petition, but will admit adultery only at a time after the s 1(2)(b) petition was filed. This and other examples will crop up. The supplemental petition may – from time to time – be a boon to the mediator. All other issues are resolved; but things said in the original petition are wanted to be unsaid.

And if agreement is reached, but a decree nisi is needed to make it enforceable: the McCartney consent order procedure has been revived by recent developments in the common law (see under MCA 1973 s 7 in Family Court Practice 2015 (yet to be published)).

@ResFamilyLaw: A NOTE ON LITIGANTS IN PERSON

Review: Guide to Good Practice on working with Litigants in Person (Resolution)

This homely guide, as to half of its 9 pages, more or less does what it says on the tin: it assumes its reader (‘you’) is acting for an adult parent in family breakdown proceedings. In Kitchener style prose (all addressed to an undefined ‘you’: presumably a lawyer) is takes the reader through their ‘first contact’ with a litigant in person and makes suggestions as to how s/he should conduct ‘communications generally’. For the remainder of the Guide it makes a few general points about conduct of inter-adult family breakdown litigation with occasional leavening – to make it appear relevant to its title – with references to litigants in person.

It does not do justice to its publishers. It is very short on reflection on, or more detailed development of, the very important subject in hand. For example:

• No attempt is made to consider how any unrepresented vulnerable adult parties should be dealt with
• No mention is made of what is intended by Matrimonial and Family Proceedings Act 1984 s 31F(6) (in force since April 2014), which enables the court to take over cross-examination for a litigant in person; or indeed of a litigant in person as discussed by Sir James Munby P in Q v Q (No 2) [2014] EWFC 31, 6 August 2014 (this case is not touched upon)
• There is no reference to the excellent Judicial Working Group on Litigants in Person: report (Judiciary of England and Wales, July 2013) – http://www.judiciary.gov.uk/Resources/JCO/Documents/Reports/lip_2013.pdf ; nor any discussion of what that group may be up to 18 months later.

Reference to Q v Q recalls that nothing is said of perhaps the most challenging aspect of dealing with a litigant in person: in court as advocate and in preparation for trial. At such times litigants in person are likely to be at their most tense and challenging.

Or if not court: how do you encourage a person who is spoiling for a fight, to see benefit from mediation or some other NCDR? This must be a subject dear to Resolution’s heart; and rightly so. Surely a section on this for litigants in person would be valuable: who makes the first move; who contacts the mediator; and how does the lawyer overcome suspicion if the suggested mediator is a lawyer mediator? How does the mediator operate alongside any court proceedings? Should arbitration or ENE be mentioned to the LiP – an off-the-cuff MIAM?

The report is undated, so it may have come out before the Ministry of Justice paper on litigant in person http://www.familylaw.co.uk/system/redactor_assets/documents/2189/litigants-in-person-in-private-family-law-cases.pdf ; but the existence of that report, its publication long-delayed, cannot have been unknown to the author(s). Some reference to it and its conclusions would have given a little depth to an otherwise shallow document.

OPTIONS FOR FUNDING FAMILY PROCEEDINGS

Buttressing the right to a fair trial

Equality of arms is intended to be a buttress of the right to a fair trial (European Convention 1950 Art 6). In JG v Lord Chancellor and ors [2014] EWCA Civ 656 http://www.bailii.org/ew/cases/EWCA/Civ/2014/656.html Black LJ commented on the point by reference to Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601. There may be no obligation under European Convention 1950 to make legal aid available for all civil disputes, but (had said the European Court):

[45] … [the Convention] is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. The right of access to court includes not only the right to institute proceedings but also the right to obtain a “determination” of the dispute by a court. It would be illusory if a Contracting State’s domestic legal system allowed an individual to bring a civil action before a court without ensuring that the case was determined by a final decision in the judicial proceedings.

Access to the court must include the ability to see the case through to a ‘determination’. Muscat (at para 46) breaks down the applicant’s entitlement to legal aid; but unless you are up there in the sights of a Muscat type case as a litigant – ie that you need legal aid to secure effective access to the court – you won’t have equality unless you can pay for the case yourself, or you have legal aid. The past six months has tested such inequality in family litigation, in cases where legal aid would have been available (subject to the individual’s means) pre-2013; but where legal aid is now denied because of changes which are working their way through since introduction of Legal Aid Sentencing and Punishment of Offenders Act 2012 (‘LASPOA’) in April 2013.

Judges: attempts to blow the Lord Chancellor’s legal aid house down

Judges can huff and they can puff; but their job is to judge, not to play legal aid politics. And, it seems, there is little they can do to blow the Lord Chancellor’s LASPOA house down (save where application is made successfully for judicial review: that has been happening incrementally; it is a subject for another day; and, for now, it is fair to observe that family lawyers are remarkably complicit with the Legal Aid Agency (LAA) in permitting its harsh regime to consume their client’s cases).

Sir James Munby P notably has huffed; and he has threatened to make the Ministry of Justice pay by a door other than legal aid. But, being a politician the Lord Chancellor craves attention. The more the judges huff and puff, yet can do nothing, the more – I suspect – he enjoys it. He knew what he was doing when he strangled the private law family proceedings legal aid budget. If the effects are working, then all the more political credit to him. Sir James’s harrumphing has the opposite effect.

Court inroads, and court harrumphing

There have been a series of inroads on the scheme in the Administrative Court in judicial review. That works for the particular case – unless the LAA go off and re-make a decision with the original outcome, but made correctly the second time. However, unless a general principle is involved the benefit is narrow and short-lived (Black LJ’s ratio for her decision in JG – as she herself accepted – was three lines in a 132 paragraph judgment). Most are but a tiny skirmish on the wide front of the battle against the Lord Chancellor.

That said, these cases are not what this note is about. It concerns the recent harrumphs of Family Division judges. Have they helped parties to find another way to funded legal representation? (One thing that can be fairly certain is the inefficacy of the lawyer’s representative bodies: what are Law Society Family Law Committee, FLBA and Resolution doing – I genuinely would like to know, but my impression is: very little).

Three recent cases have highlighted the problem; and – thus far at least – have also highlighted the powerlessness of judges. Perhaps this is right: judges judge. Others (perhaps including judges, but in another capacity) join in the trench warfare in which radical lawyers are involved, on behalf of their clients, with the Ministry of Justice. These cases include:

• Q v Q (No 2) [2014] EWFC 31, Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/31.html
• Re D (A Child) [2014] EWFC 39 (31 October 2014), Sir James Munby P http://www.bailii.org/ew/cases/EWFC/HCJ/2014/39.html ; preceded by A Father v SBC and ors [2014] EWFC 6 (23 May 2014) Baker J and Re D (A Child) [2014] EWFC B77 (9 June 2014) HHJ Marshall.
• R v R (Family Court: Procedural Fairness) [2014] EWFC 48 (11 December 2014), Peter Jackson J http://www.bailii.org/ew/cases/EWFC/HCJ/2014/48.html .

I have considered some of these cases more fully elsewhere (‘State funding for family proceedings after Q v Q (Private law: public funding): Part 1’ Family Law [2014] October http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub; and ‘State funding for family proceedings: part 3: sources of family proceedings funding’ Family Law [2014] December http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub ).

This note looks at possible options there may be for parties to be funded (save from their own resources) outside the legal aid scheme. To what extent can family lawyers press for this and for other possible forms of public funding for their clients?

State funding after Q v Q (August 2014)

In early August 2014 Sir James Munby P considered the extent to which children proceedings demanded that particular litigation funding and other expenses might be paid for by the state. Without deciding anything, nor with any other than scant recitation of authority, Sir James raised questions as to the extent to which the court has power to order funding from a public body other than Legal Aid Agency. For the individuals concerned, and for their advisers, how to apply for such funding remains a largely unresolved question; even if, since August 2014, Sir James has found out how such funding might be available.

Sir James’s discussion ([46]-[49], [54]-[57] and [77]-[79] in Q v Q (No 2)) for funding from HM Courts and Tribunal Service (in essence the same budget from which legal aid is drawn: ie Ministry of Justice) starts from the premise that the court is a public authority (Human Rights Act 1998 s 6(3)(a)). It is prevented from acting in a way incompatible with European Convention 1950 (HRA s 6(1)). European Convention 1950 Art 6 guarantees the right of practical and effective access to the court (Airey v Ireland (1979) 2 EHHR 533) (para [48]; Muscat v Malta (2012) Application no 24197/10 [2012] ECHR 1601; JG v Lord Chancellor and ors (above)).

It is the court which decides whether appointment of an expert is necessary (Children and Families Act 2014 s 13(6)); and if so maybe it is for the court to bear the cost (paras [56] and [57]). Similarly, if legal representation is needed for the court to discharge its duty under Matrimonial and Family Proceedings Act 1984 s 31G(6), then appropriate representation must – perhaps – be provided at the expense of HMCTS (paras [69], [79]). Three possibilities arise from Sir James’s comments:

(1) Direct application for HMCTs funding

Sir James’s comments suggest that – subject to means and merit – then application should be made direct to HMCTS (would the office of the family court where the case is proceedings be able to help with an apt address?). The following pre-conditions to grant suggest themselves:

(1) Merit would probably be dictated by the terms of case management directions; and with such direction an applicant would then have to show
(2) The applicant has no alternative source of private funding;
(3) That legal aid was not available under the LASPOA 2012 scheme; and
(4) That the applicant’s means – perhaps by reference to the Ministry of Justice approved court fees remission scheme (Family Proceedings Fees Order 2008 (as extensively amended) Schedule 2) – justified assistance.

It would be for HMCTS to identify a fund from which payment could be made; and if they refused, judicial review of their decision would – in principle, at least – lie to the Administrative Court. And do Sir James’s obiter comments, alongside the existing legal aid scheme create any form of legitimate expectation amongst potential applicant that funding will be provided by HMCTS? A legitimate expectation requires a decision-maker to have given the applicant a clear expectation that s/he will receive a benefit from a scheme or decision; and it must be open to doubt that Sir James is in such a position. Developments from Sir James’s comments are awaited.

(2) Assessors

The role of assessors in family proceedings is relatively overlooked by court (save in the costs jurisdiction). Senior Courts Act 1981 s 70 (applicable in county courts per County Courts Act 1984 s 63 and in the family court: see MFPA 1984 s 31E) enables the court to appoint assessors:

70 Assessors and scientific advisers.
(1)In any cause or matter before the High Court the court may, if it thinks it expedient to do so, call in the aid of one or more assessors specially qualified, and hear and dispose of the cause or matter wholly or partially with their assistance.
(2)The remuneration, if any, to be paid to an assessor for his services under subsection (1) in connection with any proceedings shall be determined by the court, and shall form part of the costs of the proceedings.

FPR 2010 r 25.20 explains how this can be done. The assessor could be a person whose opinion – including taking part in decision-making – might assist the court. Their role in many ways would be similar to that of a jointly funded expert. The issue of costs remains (s 70(2) above); but so far as the court has power to award costs against a third party (SCA 1981 s 51(3)), perhaps it could order assessor’s costs from public funds (ie HMCTS). HHJ Marshall left the parties following her rambling attempt at Re D (as it seems to me) crying out for appointment of an independent social work assessor (see para [87]-[89]); but many children lawyers might regard that a little radical.

(3) Attorney General

In H v L and R [2006] EWHC 3099 (Fam) [2007] 2 FLR 162, at the request of Roderic Wood J the Attorney-General (‘A-G’) arranged for an advocate to the court (‘AtoC’) to be appointed to deal with a father’s cross-examination of a mother abused by him. The role of the AtoC was limited to cross-examination of a vulnerable witness (the mother); but not as representative of the father. The assistance was for the court alone. The instruction of the AtoC, by the A-G, was dealt with under the Attorney-General’s Memorandum of 19 December 2001 [2002] Fam Law 229 (see eg Family Court Practice 2014 at 2869: this memo remains basis on which the A-G deals with requests for appointment of an advocate to the court).

The Memorandum reveals that a request comes to the A-G from the court. The appointment is a matter for the A-G (paras 3-8). The Memorandum stresses that an advocate to the court ‘represents no one’ (para 4): his/her role is limited to that professionally adopted by him/her (ie not eg on instructions from any party). Request is made by the court to the A-G (para 9). It is for the Attorney General to decide whether assistance will be provided and on what terms (para 10).

In Q v Q (No 2) Sir James considered how this assistance to the court would be capable of assisting the court (judge or magistrates) where MFPA 1984 s 31G(6) applies. This provision is as follows:

(6)Where in any proceedings in the family court it appears to the court that any party to the proceedings who is not legally represented is unable to examine or cross-examine a witness effectively, the court is to—
(a)ascertain from that party the matters about which the witness may be able to depose or on which the witness ought to be cross-examined, and
(b)put, or cause to be put, to the witness such questions in the interests of that party as may appear to the court to be proper.

To what extent will courts be able to invite the A-G to instruct an advocate, where a witness needs protection from cross-examination by an abuser (alleged or otherwise). The court can then, through the AtoC, ‘cause to be put’ questions to the abused person? It must be hoped that this is a question high on the agenda of the Vulnerable Witnesses Working Group.

Committal applications

In Re Ramet (application for the committal to prison) [2014] EWHC 56 (Fam) Sir James Munby P said of legal aid for committal applications:

[32] I turn to legal aid, public funding. In Re Jennifer Marie Jones [2013] EWHC 2579 (Fam), para 43, I referred to what, as I was told, seemed to be the limited availability of public funding in contempt cases. Whatever the limitations of civil funding, public funding in contempt cases is available under the criminal scheme. The key provision is regulation 9(v) of the Criminal Legal Aid (General) Regulations 2013, SI 2013/9, which says:
“The following proceedings are criminal proceedings for the purposes of section 14(h) of the [Legal Aid, Sentencing and Punishment of Offenders Act 2012] (criminal proceedings) –…
(v) any other proceedings that involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights.”
The effect of the decision of the Court of Appeal in Hammerton v Hammerton [2007] EWCA Civ 248, [2007] 2 FLR 1133, is that this covers all proceedings for contempt of court, whether criminal or civil in nature and whether arising in the context of criminal, civil or family proceedings.
[33] Because this is criminal public funding, it can be ordered by the court. So, in the present case I made an order on 28 November 2013 granting Mr Ramet legal aid for solicitor and junior counsel. A detailed analysis of the scheme can be found in the judgment of Blake J in King’s Lynn and West Norfolk Council v Bunning (Legal Aid Agency interested party) [2013] EWHC 3390 (QB).

Committal applications in European Convention 1950 jurisprudence are in effect criminal proceedings was explained by the Court of Appeal in Mubarak v Mubarak [2001] 1 FLR 698 (and see there references to Engel and Others v The Netherlands (No 1) (1979) 1 EHRR 647, at 677 paras 80 and 81). Application for funding is to the court by the individual whose committal is sought. Whether this is to be on the day or by separate FPR 2010 Part 18 or Part 19 application remains to be clarified by Family Procedure Rules Committee.

Lessons from administrative law proceedings

(1) Protected costs orders

The Administrative Court has developed a jurisdiction which protects an applicant for judicial review from an adverse costs order if their case is in the public interest and the applicant expects no personal gain (R (Corner House Research) v Secretary of State for Trade & Industry [2005] EWCA Civ 192, [2005] 1 WLR 2600). In the unlikely event that a parent is threatened with a costs application in children proceedings, and where such proceedings are for the benefit of a child – says the parent – then a form of protective costs order (on Corner House principles) in children proceedings is not inconceivable. Indeed such an order was touched upon by Sir James in Re D.

(2) Unfunded parties to care proceedings

In care proceedings, grand-parents, or other family carers, share thin gruel when it comes to funding of legal representation; though the court and local authority may need to rely on such family members to care for the child concerned, perhaps long-term. As was explained in Re T (Costs; Care Proceedings; Serious Allegations Not Proved) [2012] UKSC 36 [2013] 1 FLR 133, there is no guarantee that they can expect funding for representation from a local authority, even where they are caring for a child and where their means takes them outside legal aid.

And yet, can they claim any ‘legitimate’ expectation to expect any such funding? Almost certainly not; but the question bears asking. The subject is derived almost entirely from administrative law (see eg references to de Smith above; and Judicial Review Proceedings: a practitioner’s guide Jonathan Manning, Legal Action Group (2013) at 6.266 etseq).

Clarity in law: a conclusion

Lord Bingham’s first principle of the Rule of Law (2006 David Williams lecture: http://www.cpl.law.cam.ac.uk/past_activities/the_rule_of_law_text_transcript.php) is as follows:

First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.

Making family law clear and, as far as possible, ‘intelligible’ to the averagely intelligent layman – who will not ‘usually’ have legal advice, as Lord Bingham expected – is the first challenge for reformers if funding is to remain as piece-meal as outlined in this series. And doing that critically – is this law clear to the averagely intelligent layman? – must be a part of the landscape the lawyer tries to discern through his or her Muscat v Malta spectacles.

Those spectacles are the key to LASPOA s 10 funding which so many family lawyers have so far flunked (see ‘State funding for family proceedings: Part 2: exceptional case determination’ Family Law [2014] November http://onlineservices.jordanpublishing.co.uk/web/pub.xql?c=t&action=home&pub).