CONVENTION COMPLIANCE OF LEGAL AID EXCEPTIONAL CASE DETERMINATION

Lord Chancellor’s Guidance on exceptional case funding

In https://dbfamilylaw.wordpress.com/2015/06/10/lord-chancellors-guidance-on-exceptional-case-funding/ the Guidance issued by the Lord Chancellor after the case of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622 was reviewed. Reference was made at the end of that article to the prior question of whether or not the sparse amendments to the new Guidance (dated 9 June 2015) – for example with references to whether it is ‘necessary’ to grant funding (see eg paras 6 and 11) – are compatible with Human Rights Act 1998 (HRA 1998), especially s 6(1)? Is the approach of the new Guidance consistent with the duties of the Lord Chancellor under the European Convention 1950 as perceived by the recent Court of Appeal decisions in Gudanaviciene and the earlier JG v Lord Chancellor and ors [2014] EWCA Civ 656?

The duties of the Lord Chancellor to provide legal aid ‘civil legal services’ are set out in LASPOA s 1(1) and (2):

(1) The Lord Chancellor must secure that legal aid is made available in accordance with this Part.

(2) In this Part “legal aid” means—

(a) civil legal services required to be made available under section 9 or 10 or paragraph 3 of Schedule 3 (civil legal aid),…

Such general provision as there remains for civil legal aid is provided for at s 9 (and in extensive schedules to the Act), and – at s 10 – for special legal aid (exceptional case determinations, the subject of this and the previous article) where European Convention 1950 may be breached, or thought to be at risk of being breached.

In Gudanaviciene the Court of Appeal drew attention to the need for case-workers (ie Legal Aid Agency (‘LAA’) decision-makers) on behalf of the Lord Chancellor to have regard to European Court jurisprudence.  The duties of a state – the Lord Chancellor in the case of legal aid – to which the Court of Appeal drew attention in Gudanaviciene and JG, in the context of a fair trial (European Convention 1950 Art 6(1)), were:

  • A consideration of ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (Gudanaviciene at [56]).
  • There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings (Steel and Morris v UK(2005) 41 EHRR 22 at [62]; JG at [97]). That said the Convention was ‘intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective’ (Airey v Ireland (1979) 2 EHHR 533 at [24]; Muscat v Malta (2012) Application no. 24197/10 at [45] quoted in JG).
  • ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (European Court in Muscat at [46])).
  • Consideration of these principles requires a consideration of all the circumstances of the case, of the underlying law in the case and of the relevant European Court jurisprudence (Gudanaviciene especially at [56]).

Duties in 2015 Guidance

The Guidance in passages which are new and incorporated into it after Gudanaviciene, translates the Gudanaviciene requirements into guidance for case-workers as follows:

[6] In considering whether it is necessary to make civil legal services available, caseworkers should ask themselves whether a failure to do so would be a breach of Convention rights or enforceable EU rights by reference to the principles identified in this Guidance and in any relevant case law (emphasis supplied in the text) [citation of Gudanaviciene at [31] here].

[13] [The italicised passage was in the original guidance at para 12, and is preserved in the new para 13] Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person’s civil rights and obligations. [Deleted from the original para 12] In certain very limited circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings. [New para 13 continues:] In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [citation of Gudanaviciene at [56]], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.

[20] …. the factors [in the Guidance] must be carefully weighed – for example, the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services

The Guidance in an emboldened rubric between paras 19 and 20 adds:

The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness.

The threshold for consideration of grant (assuming an applicant is financially eligible) is ‘that it is necessary to make [civil legal aid] available to’ the applicant, because failure to do so would be a breach of his/her Convention rights; or the case worker fears there might be such a breach (LASPOA s 10(3)). Do these and other requirements of the Guidance translate this into a ‘diligent’ approach to grant of legal aid (see cases of Steel & Morris and Muscat (above) and Kerr (below))? In particular does the new Guidance by which case-workers are intended to assess applications, that it is ‘necessary’ to grant ECF legal aid, compliant with HRA 1998?

Human Rights Act 1998

Human Rights Act 1998 s 6(1) provides that: ‘It is unlawful for a public authority to act in a way which is incompatible with a Convention right.’

European Convention 1950 Art 6(1), so far as relevant, provides:

Right to a fair trial

(1) In the determination of his civil rights and obligations…, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

In Airey v Ireland (1979) 2 EHHR 533 the European Court recognised that where the nature of the proceedings demanded it, a denial of legal aid might, in itself, be a denial of a fair trial contrary to Art 6(1) (Airey and the following case law is considered in Gudanaviciene at [35] to [40]). Complexity of law or procedure does not guarantee that a fair trial will be denied to a party without legal aid. This was explained by the European Court in Steel and Morris v UK (2005) 41 EHRR 22:

[61] The question whether the provision of legal aid is necessary for a fair hearing must be determined on the basis of the particular facts and circumstances of each case and will depend, inter alia, upon the importance of what is at stake for the applicant in the proceedings, the complexity of the relevant law and procedure and the applicant’s capacity to represent him or herself effectively.

[62] The right of access to a court is not, however, absolute and may be subject to restrictions, provided that these pursue a legitimate aim and are proportionate. It may therefore be acceptable to impose conditions on the grant of legal aid based, inter alia, on the financial situation of the litigant or his or her prospects of success in the proceedings. Moreover, it is not incumbent on the State to seek through the use of public funds to ensure total equality of arms between the assisted person and the opposing party, as long as each side is afforded a reasonable opportunity to present his or her case under conditions that do not place him or her at a substantial disadvantage vis-à-vis the adversary.

However once a state has determined that a person’s means justify legal aid, that their civil rights are in issue and that their right to a trial risks real and obvious unfairness by a lack of legal advice and representation then, said the European Court in Muscat v Malta (above): ‘The State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (at [46])).

Is there then a point at which the s 10(3) necessity threshold is achieved; and that from that threshold point – just as a doctor confronted by an injured patient must seek to help him or her – the LAA must switch to a supportive role? From then they must comply with their duty to provide support for the litigant in question within statutory limits. If this is so, how is this supportive role to be defined and to be translated into practice? And finally does the Guidance as now drafted achieve this?

Services to be provided: a s 10(3) threshold

A starting point for grant of funding is at para 36 of the Guidance under the heading ‘Extent of services to be provided’:

36 Where caseworkers conclude that legal aid is required to be provided under section 10, this should be limited to the minimum services required to meet the obligation under ECHR or EU law. For example, it could be through providing assistance in the form of specific levels of service, or through limitations placed on funding certificates.

Under the capability of the applicant to present their case effectively paras 23 and 24 state:

23 Caseworkers should consider whether the applicant would be incapable of presenting their case without the assistance of a lawyer. When considering this factor, caseworkers will need to bear in mind their assessment of case complexity, as this may affect the weight that needs to be given to some of the matters listed below.

24 In doing so, caseworkers should bear in mind that:

  • there is no requirement to provide legal aid to ensure total equality of arms between an applicant and opponent, so long as each side is afforded a reasonable opportunity to present their case under conditions that do not place them at a substantial disadvantage compared to the opponent;
  • most courts… are well used to assisting unrepresented parties in presenting or defending their cases against an opponent who has legal representation.

These three paragraphs do not paint the LAA in the light of a supportive department over-imbued with ‘diligence…to secure’ that services are provided. Para 36 does not present them in a forgiving light (bad losers, perhaps?) once they have accepted that funding should be provided.

Can a case be presented by an applicant ‘without obvious unfairness’?

In particular the assertion in para 23 that case-workers should ‘consider whether the applicant would be incapable of presenting their case without’ legal assistance presents only a partial picture and is unlikely to represent the law. This is surely the central feature of a s 10(3) assessment? It involves a positive approach, not negative assessment which much of the Guidance demands. This would include a purposive assessment of the following (often presented by the applicant in person):

  • Given the facts of the case and the issues at large what is the law which may reasonably be said to be involved in dealing with the case?
  • What is the procedure by which the case is to be dealt with and are there any particular procedural issues which may arise which an unrepresented litigant might be expected not to anticipate or to deal with?
  • Can an unrepresented litigant be expected, without obvious unfairness, to deal with these features of law and procedure, and thereby secure a fair trial?
  • If not what level of assistance should the LAA provide to applicants (see Kerr below)?

If the LAA can show they have assessed and fully considered each of these features of an individual case (with the attitude suggested for welfare benefits claimants by Lady Hale in Kerr) and the threshold has been reached, then the LAA’s role changes. The Agency ‘must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Art 6’ (European Court in Muscat at [46]).

Level of service to be expected by ECF applicants

It may not feel like it to applicants for legal aid and their lawyers; but legal aid is intended to be a co-operative venture between applicant, lawyer and the LAA – the ‘stakeholders’ as they used to be called. The scheme, introduced on 30 July 1949 under Legal Aid Act 1949, was part of the Beveridgeian welfare state introduced by the 1945 Labour government. It is part of a citizen’s right: alongside health, education and the variety of other services developed in 1945-50.

In Kerr v Department for Social Development (Northern Ireland) [2004] UKHL 23, [2004] 1 WLR 1372 (a case concerning a claim for benefits for burial of a dead claimant) Lady Hale stated of the welfare benefits system:

[62] What emerges from all this is a co-operative process of investigation in which both the claimant and the department play their part. The department is the one which knows what questions it needs to ask and what information it needs to have in order to determine whether the conditions of entitlement have been met. The claimant is the one who generally speaking can and must supply that information. But where the information is available to the department rather than the claimant, then the department must take the necessary steps to enable it to be traced.

There is no reason why the scheme which leads to grant of legal aid funding, especially ECF, should be any different. At present even the application forms require a heavy level of legal input. This is not how Lady Hale expects a benefits scheme to operate. Of claims for benefit – and the same should be able to be said of legal aid – she said in Kerr:

[56] The benefits system is necessarily enormously complex. This was true even in the early days, when it was mainly based on flat rate contributory benefits, and means tested benefits were seen as a safety net but not the norm. It has become even more so with increasing attempts to target benefits upon the most needy…The general public cannot be expected to understand these complexities. Claimants should not be denied their entitlements simply because they do not understand them. It has been a consistent objective of social security administration over the years to devise user-friendly forms and procedures to enable the benefits agencies to discover whether or not a claimant is entitled to benefit.

These are surely the standards by which the Guidance for ECF should be judged? On present drafting of the Guidance, it seems likely that the present ECF scheme is not compliant with HRA 1998 s 6(1). By contrast, if the Lord Chancellor can show that the LAA has complied with the list of assessment factors set out above, in a positive way and in each individual case, he can probably show he has complied with his duties under LASPOA ss 1 and 10 and HRA 1998 s 6(1). If he cannot show this – and the Guidance is not evidence of ‘diligence’ in securing legal aid provision or of the type of approach described by Kerr – then perhaps the Lord Chancellor’s operation of the legal aid scheme in not Convention compliant.

LORD CHANCELLOR’S GUIDANCE ON EXCEPTIONAL CASE FUNDING

Guidance after Gudanaviciene

On 9 June 2015 the Lord Chancellor published Exceptional Funding Guidance (Non-Inquests)[1] (the Guidance) redrafted in the light of R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622. The Court of Appeal found that aspects of the former guidance (undated) were ‘not compatible with article 6(1) of the Convention’. The Guidance, said the court, ‘impermissibly sends a clear signal to caseworkers and the Director that the refusal of legal aid will amount to a breach only in rare and extreme cases’ ([181]), especially in the then paras 9, 10, 12 and 18. The threshold for compliance by a Legal Aid Agency (‘LAA’) caseworker with s 10(3) was set too high (for further discussions see http://www.familylaw.co.uk/news_and_comment/gudanaviciene-legal-aid-guidance-not-compatible-with-a-right-to-a-fair-trial#.VXg2kM-qqko).

This article will review the new Guidance, and – in a second part – will ask whether its approach to grant of funding is compliant with Human Rights Act 1998 (HRA 1998) s 6(1) (public bodies must not act in ways which are incompatible with Convention rights).

Exceptional case determination: LASPOA s 10(3)

Legal Aid Sentencing and Punishment of Offenders Act 2012 (LASPOA) s 10(3) provides for an ‘exceptional case determination’ (ECD) for exceptional case funding (ECF) as follows:

(a) that it is necessary to make [civil legal aid] available to the individual under this Part because failure to do so would be a breach of –

(i) the individual’s Convention rights (within the meaning of the Human Rights Act 1998), or

(ii) any rights of the individual to the provision of legal services that are enforceable EU rights, or

(b) that it is appropriate to do so, in the particular circumstances of the case, having regard to any risk that failure to do so would be such a breach.

Thus s 10(3) explains when an ECD should be made. It is ‘exceptional’, not because of some rarity of grant, but because of the factors – Convention compliance – which makes s 10(3) applicable. As the Court of Appeal bluntly assert: ‘Exceptionality is not a test’ (para [29]), it is merely a descriptor. And of s 10(3)(a) the court went on:

[31] … Section 10(3)(a) speaks of the situation where a failure to make civil legal services available would be a breach, not where there would be a real risk of a breach….

[32] In short, therefore, if the Director concludes that a denial of ECF would be a breach of an individual’s Convention or EU rights, he must make an exceptional funding determination. But as we shall see, the application of the ECtHR and CJEU case-law is not hard-edged. It requires an assessment of the likely shape of the proposed litigation and the individual’s ability to have effective access to justice in relation to it….

If the ‘Director’ – that is, the LAA case worker or decision-maker – cannot decide if there would be a breach of Convention or EU rights s/he goes on to consider the application under s 10(3)(b):

[32] …. In making [a decision under s 10(3)(b) the decision-maker] should have regard to any risk that failure to make a determination would be a breach. These words mean exactly what they say. The greater he assesses the risk to be, the more likely it is that he will consider it to be appropriate to make a determination. That is because, if the risk eventuates, there will be a breach….

‘Obvious unfairness’

The court’s conclusion on whether the Guidance properly guided case workers when it came to compatibility with Art 6(1) was to look at Strasbourg jurisprudence and to ask whether lack of representation created ‘obvious unfairness’ ([42]). In a passage which should surely have found its way into the Guidance the court summarised the ‘obvious unfairness’ case-law (at [46]) as follows:

  • The Convention guarantees rights that are practical and effective, not theoretical and illusory in relation to the right of access to the courts (Airey v Ireland (1979) 2 EHHR 533 at [24]; Steel and Morris (2005) 41 EHRR 22 at [59]);
  • The question is whether the applicant’s appearance before the court or tribunal in question without the assistance of a lawyer was effective, in the sense of whether he or she was able to present the case properly and satisfactorily (Airey (above) at [24]; McVicar v UK (2002) 35 EHRR 22 at [48]; and Steel and Morris (above) at [59]);
  • It is relevant whether the proceedings taken as a whole were fair (McVicar (above) at [50], P,C and S v UK (2002) at [91]);
  • The importance of the appearance of fairness is also relevant: simply because an applicant can struggle through ‘in the teeth of all the difficulties’ does not necessarily mean that the procedure was fair (P,C and S (above) at [91]); and
  • Equality of arms must be guaranteed to the extent that each side is afforded a reasonable opportunity to present his or her case under conditions that do not place them at a substantial disadvantage vis-à-vis their opponent (Steel and Morris (2005) at [62]).

Case presentation by a party: ‘effectively and without obvious unfairness’

In the final analysis the ‘critical question’ said the court is ‘whether an unrepresented litigant is able to present his case effectively and without obvious unfairness’ (para [56]). Crucial factors include that the greater the procedural complexity or ‘substantive legal issues’:

…the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test).

Art 6(1) does not require civil legal aid in most, or even many, cases said the judges. It all depends on the circumstances. Although in the UK we have an adversarial system of litigation, judges can and do provide assistance to litigants in person. The balance is perhaps expressed by the court as:

[56] … It is not a requirement of article 6(1) that legal services be provided in all but the most straightforward of cases. On the other hand [it is not the law] that legal services are required only in such extreme cases.

The Guidance and Gudanaviciene

The Guidance has been only peripherally rewritten since Gudanaviciene (mostly by adding a sentence here or there to reflect specific points made in Gudanaviciene). For example, a sentence which referred to the threshold for grant to avoid breach of Art 6(1) as being ‘very high’ (old para 10) has merely been removed in what becomes a new para 11. In the old guidance para 12 (criticised, as was para 10, in Gudanaviciene (see above)) stated that Art 6(1) guaranteed the right to a fair hearing, but that grant of ECF should only be made ‘in certain very limited circumstances’. The same passage in the new Guidance reads (now para 13):

Article 6(1) guarantees the right to a fair hearing and the right of access to the court for the purposes of the determination of a person’s civil rights and obligations. In certain circumstances, legal aid may be required in order to guarantee the effective right of access to a court in civil proceedings, or to prevent obvious unfairness. The Court of Appeal has confirmed that Article 6(1) does not require that funding be granted in “most or even many cases” [Gudanaviciene at [56] (set out above)], but caseworkers should not approach the applications for ECF with any preconception about the proportion of applications that are likely to succeed. Whether the Convention requires funding in any given case depends on a holistic assessment in each case.

(It is not clear that the Court of Appeal said what is in the italicised passage, but perhaps that point can pass for the time being.) The succeeding passages go on, as did the old guidance, to stress the importance of limiting grant by reference to whether a ‘civil right’ is in issue as Art 6(1) (paras 14-18): a slightly sterile discussion in the context of most civil proceedings, since application to a court (legal aid for tribunal proceedings will be very rare) generally brings a civil right into contention.

Breach of an Article 6 right

The Guidance centres its discussion, as before, on avoidance of possible breaches of Art 6; though it must not be forgotten that the Gudanaviciene case itself and Re JG (above) involved also Art 8 (right to respect for family life). The impugned para 18 is represented by a new rubric boxed into the text of the Guidance (between paras 19 and 20, and replacing the former rubric) as follows:

The overarching question to consider is whether the withholding of legal aid would mean that the applicant is unable to present his case effectively and without obvious unfairness.

In Gudanaviciene the position on grant of ECF to avoid obvious unfairness is intended to be reflected in the new para 20 which states (the former para 19 is italicised below):

The following factors should be taken into account. No one of these factors is necessarily determinative and each case needs to be assessed on its particular facts and in the light of representations made by applicants. However, the factors must be carefully weighed – for example, the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that Article 6(1) will require the provision of legal services [Gudanaviciene [56] is cited here].

What the Court of Appeal actually said is as follows:

[56] It can therefore be seen that the critical question is whether an unrepresented litigant is able to present his case effectively and without obvious unfairness. The answer to this question requires a consideration of all the circumstances of the case, including the factors which are identified at paras 19 to 25 of the Guidance [now paras 20 to 26]. These factors must be carefully weighed. Thus the greater the complexity of the procedural rules and/or the substantive legal issues, the more important what is at stake and the less able the applicant may be to cope with the stress, demands and complexity of the proceedings, the more likely it is that article 6(1) will require the provision of legal services (subject always to any reasonable merits and means test). The cases demonstrate that article 6(1) does not require civil legal aid in most or even many cases.

The reference to ‘all the circumstances’ and other references in Gudanaviciene to European Court jurisprudence (see eg [46] summarised above) is omitted here and in other parts of the Guidance.

‘Rights… that are practical and effective’

Of the Gudanaviciene principle – grant of legal aid to enable a trial to be achieved ‘without obvious unfairness’ – Black LJ said in Re JG (above):

[97] [ECtHR jurisprudence] in relation to legal aid has quite recently been summarised in Muscat v Malta (2012) Application no. 24197/10. There is no obligation under the Convention to make legal aid available for all disputes in civil proceedings. However the Court recalled that the Convention was “intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective”, that the institution of proceedings did not, of itself, satisfy all the requirements of Article 6(1), and that the right of access to court included also the right to obtain a “determination” of the dispute by a court (§45).

She went on to quote from Muscat:

[46] … In discharging its obligation to provide parties to civil proceedings with legal aid, when it is provided by domestic law, the State must display diligence so as to secure to those persons the genuine and effective enjoyment of the rights guaranteed under Article 6 (italics added).

As can be seen from the italicised passage above the duty on the state is a positive one; not, for example, a test which depends on whether an applicant is unable to present a case (perhaps Gudanaviciene was a little harsh on prospective applicants in this sense).

In reality the amendments and additions to the text of the 9 June 2015 Guidance are few (65 paras replace the former 63). It still reflects the essentially restrictive approach to grant under s 10(3) which was applied before (see eg the 19/20 rubric above and paras 6, 21, 23, 24 and 36). Is it ‘necessary’ to grant funding (see paras 6 and 11). This may be what politics demands; but is it what HRA 1998 requires? Is the approach of the new Guidance consistent with the duties of the Lord Chancellor under HRA 1998 s 6(1) and as perceived by the recent Court of Appeal decisions in Re JG and Gudanaviciene? These questions must be considered in the next article.

[1] The full title necessary, to distinguish the two forms of civil legal aid: for inquests and for other civil proceedings

FAMILY LAW: CLARITY FIRST

What about cleaning the dirty window first

Paul M of the Transparency Project (http://www.transparencyproject.org.uk/the-emperors-nude-clothes-or-delusions-of-candour/) takes issue with John Bolch’s dismissal of the efforts of family proceedings transparency supporters (http://www.marilynstowe.co.uk/2015/06/08/the-transparency-delusion-by-john-bolch/#.VXW5YFoCRew.twitter ). This note looks at the logically prior point: if you can’t see what your being shown if the dirty window is cleaned, it might as well stay dirty. If those who want to see a transparent family court’s system are still confronted by a maze of confusing laws and inconsistent procedures the laudable efforts of the transparency reformers are of only limited value.

In https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ I likened the legal profession – and the judges who write the judgments are very much part of this – to priests in the pre-Lutheran medieval catholic church. Only they – or those of them who could read Latin – had access to the bible. That was the text which was said to define the church as it then was. The equivalent for court proceedings and modern justice is the various documents and texts which make up the law. If these are not capable of being understood by all who take part in a system of justice then it is not just.

Laws: clear and ‘simply expressed’

Courts Act 2003 says that the drafting of family court procedural rules (Family Procedure Rules 2010) s 75(5) says that the rules should be drafted in such a way that ‘the family justice system is accessible, fair and efficient’, and that the rules themselves should be ‘both simple and simply expressed’. Rules are a good place to start. They define the way cases proceed from issue to trial and beyond: costs appeals and enforcement. If they are difficult to understand it is a bad starting point for litigants.

Many rules are not easy to understand (try following the family proceedings costs rules from an uninformed start). Many rules do not follow the common law (ie they are unlawful: court constraints on disclosure of documents in financial proceedings; the ‘transparency’ rules themselves and some of those same costs rules). Often the rules are not followed by the judges themselves (eg case management rules).

Transparency, by all means – if the privacy of children and family members are properly respected (all concerned in family proceedings have the right to have their family life respected: European Convention 1950 Art 8(1)). But before we spend too much time looking in, let’s make sure we can read and understand what we find behind the grubby windows of the family courts.

UNLAWFULLY OBTAINED DOCUMENTS:  A NEW LOOK

Court of Appeal look at Imerman documents again

In Arbili v Arbili [2015] EWCA Civ 542 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/542.html) a lawyer’s duties in relation to documents unlawfully obtained by a client was looked at afresh by the Court of Appeal. The court was concerned with a husband’s appeals against two orders in financial remedy proceedings, both of which involved discretionary decisions of the judge below. One related to division of the couple’s assets, which was dismissed.

The second appeal – which is the subject of this article – was of:

[1] … the procedure adopted in a subsequent hearing at which [H] sought directions in his application to set aside the financial order on the basis of the alleged material non-disclosure by [W], and [W]’s application for summary dismissal of that claim.

The interest in the second appeal – which was also dismissed – is that it represents a review by the Court of Appeal (Macur LJ, who gave the judgment, with which Sir Brian Rix agreed) of practical steps to be taken where documents or information are obtained ‘unlawfully’ by one party from the other (Imerman documents, after Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908, [2010] 2 FLR 814: http://www.bailii.org/ew/cases/EWCA/Civ/2010/908.html).

Unlawfully obtained documents

Following the hearing of the financial remedy application (order in September 2013) H ‘came into possession of information obtained unlawfully which he maintained demonstrated that’ a material aspect of W’s case was ‘a sham’ ([30]). His case was that information given to the court by W:

[31] … was inadequate or inaccurate in the light of the materials he had seen. However, he did not make a statement describing what he alleged he had seen in the materials which contradicted the late disclosure on behalf of the wife.

However the ‘lengthy transcript’ of the husband’s application to set aside showed ([33]) ‘that no satisfactory explanation was given in writing or in answer to direct judicial questions as to the means deployed by or on behalf of the husband to obtain the information.’ The court rejected his appeal citing the factors they bore in mind as follows (amongst which can be seen their concern as to H’s failure to explain how the documents were obtained):

[38] … the manner in which the materials were obtained; the husband’s persistent failure to candidly describe the means utilised to do so; the wife’s subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and, the costs – financial and emotional – all pointed to stopping the matter from proceeding further.

Imerman documents and information

In Tchenguiz v Imerman (above) the Court of Appeal considered the law and consequences for a wife, where she (in fact, her brothers on her behalf) had unlawfully obtained information as to her H’s means before he was required by Family Procedure Rules 2010 (FPR 2010) to produce information. The court (it was a judgment of all three: Lord Neuberger MR, Moses and Munby LJJ) concluded their analysis as follows:

[176] It would be surprising if the court in ancillary relief proceedings had no power to exclude evidence which was confidential to the husband and had been wrongly obtained from his records, however outrageous the circumstances of the obtaining of the evidence and however unfair on the husband it would be to admit the evidence. It would be all the more surprising in the light of the Human Rights Act 1998. As was explained by Ward LJ in Lifely v Lifely [2008] EWCA Civ 904, in a case of this type, the decision whether to admit or exclude evidence involves weighing one party’s (in this case, the wife’s) article 6 right to a fair trial with all the available evidence, against the other party’s (the husband’s) article 8 right to respect for privacy….

What the court neither notes here, nor does so when earlier reference is made to it, that in Lifely the Court of Appeal itself received fresh evidence illegally obtained, read it, permitted it to be adduced before them, gave permission to appeal out of time on the basis of it; and all this despite the fact that the evidence was a diary (highly private material). In Tchenguiz the court went on (Macur LJ cites this passage in her [36], but not [176] above):

[177] Accordingly, we consider that, in ancillary relief proceedings, while the court can admit [unlawfully obtained] evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.

In UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam), Mostyn J (and see https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/) somehow derives from Tchenguiz the following ‘principles’. He says that if a spouse supplies unlawfully obtained documents to his/her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the client and must return them, and all copies (both hard and soft), to the other spouse’s solicitor (if s/he has one). The other solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the other spouse’s claim, pursuant to his/her client’s duty of full and frank disclosure.

This analysis cannot be found in Tchenguiz and ignores the following critical factors:

  • That the first spouse’s lawyer must see the documents to know if they are relevant (ie should be disclosed); especially – as in Arbili – where there is already a duty to disclose, because proceedings are well-advanced or concluded (ie cases of material non-disclosure)
  • Lawyers must be trusted to read and advise on documents which may be confidential, or even covered by advice privilege (the diary in Lifely was highly confidential, but there was no criticism of the lawyers for the unlawful taker having read it);
  • That the issue demands different treatment according to whether the duty of disclosure and production on a party has yet arisen; and that duty must surely be gauged according to common law principles not according to when recent court rules (eg FPR 2010 Part 5) dictate a form with prescribed production of documents dictate.

Imerman information after Arbili

Of the lawyer’s duties on being presented with unlawfully obtained information or documents Macur LJ said only this (if Lifely was cited to the court, Macur LJ does not mention it):

[35] I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials,…  but this particular topic has been traversed at some length in Imerman v Tchenguiz and others [2010] EWCA Civ 908 sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. The ability of the wrongdoer, or their principal, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.

This is a long way from the categoric terms in which Mostyn J (who took no account of the Court of Appeal decision in Lifely) instructs lawyers as to their professional duties. After what Macur LJ says here, it is to be hoped that UL v BK can be ignored, and that the position according to common law and professional duty can be reverted to.

A procedure for dealing with Imerman information

A procedure for Imerman documents would include:

  • That legal advisers must read documents and information (Lifely): they risk a claim in negligence later if they have overlooked material documents or information which should have been disclosed.
  • Documents should be returned to the other party’s lawyer; but whether or not copies are retained will depend on whether a common law duty to disclose has yet arisen.
  • The taker of the documents must be frank as to how they were obtained (a strong reason why Mr Arbili lost his appeal on the second order (see above).
  • A fair trial is likely to dictate that even unlawfully obtained information be produced in court at trial (Lifely; Jones v Warwick University [2003] EWCA Civ 151).
  • If a party thinks documents or information should be produced application can be made under FPR 2010 r 21.3(5) (touched on inG v G (Legal professional privilege)[1] [2015] EWHC 1512 (Fam), Roberts J at [70]; and see procedure in Family Court Practice 2015. See also https://dbfamilylaw.wordpress.com/2015/05/30/aa-milne-does-it-in-seven-verses/).

David Burrows

2 June 2015

[1] My title