LEGAL AID HANDBOOK 2015/16

LEGAL AID HANDBOOK 2015/16 Ed Vicky Ling and Simon Pugh (2nd ed Legal Action Group, September 2015 – £60)

This is a remarkable book, by any standards. First it succeeds in combining together an introduction to civil (and family) and criminal legal aid in one concise volume; and to explain what has become an absurdly complex amalgam of primary and secondary legislation; of guidance and contract terms; and, now, of a burgeoning case law.

Second it does all this within a paperback which is about the same size as the pre-Access to Justice Act 1999 ‘Legal Aid Handbook’ (a source book published by: Law Society, and then the Legal Aid Board). Much credit must go to Legal Action Group for its second edition publication (price: £60).

I tested the book by reference to exceptional case funding and remuneration (how lawyers get paid: a word, by the way, which could have been in the index). As I read the chapter ‘Getting paid [a much better term than ‘remuneration’] for civil and family work’, I thought how useful would have been a Glossary; I looked in the front of the book; and – another plus:  there it was at p xxxvii. The chapter covers all angles of payment with typical clarity; but, again, shows the mind-boggling complexity of the 2013 scheme.

Exceptional case funding (ECF) is up-to-date; and that, in the case of a fast-moving target is another point of credit for the authors and publishers. It includes assessment of the seminal IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin), a judgment of Collins J of only three months ago. The subject is fully explored, in a way which was not open to the authors for the first edition.

Any legal aid practitioner must have his book, and if possible should find time to read carefully the sections which apply to his/her practice (ie not just use the Handbook as a reference book). And then my soap-box: practising lawyers have a habit of looking only at the surface of a scheme; that is for only as much as is demanded to get the job done. This is fair enough, up to a point. But….

Our job requires us always to test the legality of a Government scheme or of court rules. And if secondary legislation (eg regs, rules or guidance) are unlawful, we must challenge them (and any help on such a challenge can be found in another LAG book: on judicial review).

If this book gets us all back into the source material (eg on ECF: LASPOA 2012 s 10(3) and Collins J in IS (above)) it will surely help us to do the job all the better, for our clients. That is what we are trained to do, and we owe it to our clients to do it – especially under so fiscally vicious a government as the present one. Only we can help those who now need help.

And if Mr Corbyn is setting up a review of the legal aid scheme, I urge LAG to send each member of the Labour group so entrusted a copy of this book; and to test them on it after the Christmas parliamentary break.

D-DAY FOR SUBMISSIONS ON VULNERABLE INDIVIDUALS

Today is D-day for reply to consultation on Amendment X to Family Procedure Rules 2010 (https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf); and see https://dbfamilylaw.wordpress.com/2015/08/23/protecting-vulnerable-parties-and-witnesses-in-court/).

I have an extension till 9 October 2015 (because I asked for info as to papers Family Procedure Rules Committee considered at their 15 June meeting when Amendment X was signed off). I am sure time would be extended for other consultees who want to reply.

It is such an important subject for those affected; and for the progress of justice in civil and family courts. If anyone is willing to send their replies to me at dbfamilylawyer@gmail.com: I’d be most grateful.

David Burrows

25 September 2015

THE RIGHT PRINCIPLES; BUT NOT NECESSARILY IN THE RIGHT ORDER

… Or why ancillary relief proceedings must be public

Any court proceedings can be public (‘open court’: see eg JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96: a point misunderstood by Mostyn J in DL v SL [2015] EWHC 2621 (Fam) https://dbfamilylaw.wordpress.com/2015/09/22/mostyn-j-and-the-open-justice-principle/). Indeed, subject to a few exceptions (eg children; national security; the secrecy of the object of the case (eg confidentiality and patents); private finance) all must be in open court (the open justice principle (OJP)). Of those exceptions, the rule is that they may not be reported (see the Administration of Justice Act 1960 s 12(1): all this is considered at length in https://dbfamilylaw.wordpress.com/2015/09/22/mostyn-j-and-the-open-justice-principle/).

Open court proceedings (eg child settlement approval as JX MX explains) can be anonymised, to take court publicity away from a child or family. The hearing of the case is open to the public, and the court’s antics can thus made clear to all; but the parties names, their appearances, even an individual witness’s evidence given in private (see eg Attorney General v Leveller Magazine Ltd [1979] AC 440) can be anonymised. The case as a whole complies with the common law OJP (fully explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343).

Why the OJP is needed; and why mediation can profit from this case

AC v SC [2015] EWFC B76 (23 June 2015) is a decision of HHJ Wildblood in the Family Court (formerly a county court), which is an object lesson on why family justice needs the OJP. (By family justice I mean all family proceedings (not ‘family justice’ which tends to apply only to children proceedings). Yes, family law needs the OJP; but perhaps not for the reasons Judge Wildblood may have expected.

He made his decision on the husband’s appeal  – his only decision – in §[4] of what BAILII report; but then spent another thirty six paragraphs explaining obiter (ie background matter; and in reality a judicial indulgence, given the ease with which these cases are published) why he thought the anonymous district judge – who should have been named; but whom I’ll call ‘Terry’ – was wrong. I am not sure Terry was as wrong as Wildblood CJ asserts (had Terry clearly done the s 25(1) exercise). We shall never know. Under Wildblood’s wildblooded permission to appeal, the wife caved in and agreed to an order. Of any costs order, I know nothing.

I am grateful to Jonathan Herring in New Law Journal [2015] 4 September 2015 at 10 for drawing this case to our attention. I do not draw quite the same conclusions as Prof Herring from the ‘interesting question’ issue raised by him (p 11 col 2). I see plenty for mediators in the case: there is much in this case for the mediator, if they are clear as to the law; and if the law is made clearer for them (see separate article, to follow).

DJ’s failure to take account of the ‘highly relevant agreement’

In AC v SC Judge Wildblood concluded:

[39] Conclusion – I had no difficulty at all in accepting that permission to appeal must be given on the single issue before me. I had no doubt that the District Judge failed to take into account the highly relevant factor that an agreement had been reached on the term of the maintenance order and that his resultant analysis of the issue was plainly inadequate. Thus the appeal had to be allowed. The parties agreed that the order of the District Judge should be substituted by an order that contained a bar under section 28(1A) of the 1973 Act.

Thus his decision, affirmed; and then – rightly, it may be thought – some hubris on behalf of the Ministry of Justice:

[40] It is highly regrettable that people of such modest means should have been caught up in this expensive and flawed process. These are two hard working parents with three children who have had to face the sadness, disruption and financial burden of divorce. As I understand it, this was their first experience of the family court and they attempted to approach this case as litigants in person for most of the time. I can only imagine the tales that they will tell about the operation of that system. I asked them both not to turn the anger that they must undoubtedly feel about these experiences onto the relationship that they must still have with each other as parents of their much loved children.

But wait, but wait. Wildblood CJ makes it clear what he thinks are the complaints against Terry’s conduct of the case. Since this is but his view, and not necessary to his decision – ‘[4]… After only a few minutes of argument it was plain that permission to appeal on the single issue before me had to be given, and the appeal had to be allowed’; and ‘[counsel for the husband] had no difficulty whatsoever in showing that the District Judge had failed to take into account an essential (i.e. much more than relevant) matter, namely the agreement’ – then I am entitled to throw my hat into the ring.

Tangled litigation web around agreements

Yes wait: was Terry so badly wrong in the tangled web of litigation which can surround agreements in matrimonial cases? In ordinary life (which does not include family courts) agreements such as the following, would be enforceable:

  • That the house be transferred to the wife (W) [if there was a written memorandum per Law of Property (Miscellaneous Provisions) Act 1989 s 2(1): eg in the court order itself]
  • That there be a charge back to the husband: Mesher postponement terms agreed; but not the amount of the charge (see below)
  • Certain shares were to be transferred by W to the husband (H)
  • That periodical payments would be paid by H for five years non-extendable (Matrimonial Causes Act 1973 s 28A(1))

The parties had not agreed (see §[5]):

‘…i) the amount of global maintenance nor

‘ii) the extent/size of the charge back

‘iii) the means of repayment of HMRC debts

‘and the court needs to determine those figures at the further hearing listed below, together with the issue of repayment of the HMRC debt has to be reissued at the next hearing.’

From a mediation stand-point the DDJ cracked the case, narrowing the issues to those three; but without – I assume – herself certifying, in Livesey and MCA 1973 s 25(1) terms (see below) concerning what had been agreed and then ordered. That part of the deal was not sewn up by the DDJ – if, indeed, and under the present law, she could have done so.

I do not believe the law is as clear as counsel for the husband and Wildblood CJ made out.

Given that he had to try the ancillary relief application, I’d say Terry may not have been all that wrong in law; though not necessarily for the right reasons (like Eric Morecombe: playing all the right notes, but not necessarily in the right order). That is to say, if he didn’t mention at least:

  • Matrimonial Causes Act 1973 s 25(1)
  • Edgar v Edgar: and
  • Radmacher (below)

– then he was asking for trouble in the context of what happened. (A judge other than Wildblood, if directed to the above authorities (he did see Edgar), might have given the district judge an easier time; and even have refused the husband permission to appeal.)

Why not ask the DDJ to deal with it?

Did anyone – such as the DDJ herself – ask the parties if they would agree to DDJ O’Neill (‘the experienced deputy district judge’ §[5]) if she would try the outstanding issues which she listed ((i)-(iii) above). On Financial Dispute Resolution appointments the practice direction only tells part of the story (PD9A para 6.2: in certain respects this PD is obviously not unlawful: eg the Re D case cited says nothing of the sort that para 6.2 suggests):

In order for the FDR to be effective, parties must approach the occasion openly and without reserve. Non-disclosure of the content of such meetings is vital and is an essential prerequisite for fruitful discussion directed to the settlement of the dispute between the parties. The FDR appointment is an important part of the settlement process. As a consequence of Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231,evidence of anything said or of any admission made in the course of an FDR appointment will not be admissible in evidence, except at the trial of a person for an offence committed at the appointment or in the very exceptional circumstances indicated in Re D.

What the draftsman is trying to say is that the meeting is covered by without prejudice rule immunity; but that immunity belongs jointly to the parties (see eg Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J) not to the court or any other mediator (which is the role judge perform at FDRs).

Edgar v Edgar

Wildblood CJ rightly refers to the Court of Appeal decision in Edgar v Edgar [1980] 1 WLR 1410, (1981) FLR 19, still the starting point in this jurisdiction; and re-affirmed by Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900.

In fact the starting point is Matrimonial Causes Act 1973 s 25(1) which, as Edgar asserts, places upon the judge who tries the ancillary relief application a ‘duty’ to consider all the circumstances (a point re-affirmed in the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813):

Under Section 25(1) it is the duty of the court to have regard to all the circumstances of the case, and, in particular, to the matters detailed in paragraphs (a) to (g), and to exercise its powers so as to place all parties, so far as practicable, and having regard to their conduct, just to do so, in the financial position they would have been in had the marriage not broken down. The ideal, of course, is rarely if ever, attainable; so, inevitably, in most cases, the phrase “so far as practicable” dominates the issue, modified, where relevant, by conduct.

To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it [emphasis added]…. So, the circumstances surrounding the making of the agreement are relevant…. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement….

Surely before he gave permission to appeal – which he seems to have done within minutes of the case being opened – Wildblood CJ should have considered the italicised passage above and given a short judgment upon it. (He says he heard no evidence (§[38]): appellate courts can hear evidence: Lifely v Lifely [2008] EWCA Civ 904 is a valuable example of the Court of Appeal so doing.) And, be it noted: the same Edgar/Livesey duty would have fallen upon the DDJ when she recorded the agreement in her order. Wildboold CJ does not consider these questions of law, as far as I can see.

Radmacher – ‘autonomy’

Of Radmacher (formerly Granatino) v Granatino (Rev 4) [2010] UKSC 42, [2011] AC 534, [2010] 2 FLR 1900 – which Wildblood CJ does not mention at all – all that need be said is (1) that it approved the Edgar principles (albeit specifically in relation to a pre-nup) and it asserted an ‘autonomy’ principle.

Does Wildblood CJ think that principle should apply to ancillary relief agreements? By implication he thinks so. It would have been helpful if, having considered Matrimonial Causes Act 1973 s 25(1) he had gone on to cite Radmacher and state his views.

Mediation and Herring’s ‘interesting question’

What the DDJ did leaves a massive and encouraging field open for mediators. At present the law is a tentative mess (another reason for open court hearings: how silly we family lawyers are on this subject; and poor Mr and Mrs C learned so to their cost.) Of that: more must follow. Watch this space….

MOSTYN J AND THE OPEN JUSTICE PRINCIPLE

A judicial view on open justice and ancillary relief proceedings

In DL v SL [2015] EWHC 2621 (Fam), dated 27 July 2015, Mostyn J delivered himself of his opinion on ‘the law (emphasis added) concerning the presence of the media in these private proceedings, which is contained in FPR 2010 r 27.11 and PD27B’. ‘The law’ is framed, says the judge, ‘to enable the press to be the eyes and ears of the public so as to ensure that the case is conducted fairly and to enable the public to be educated in an abstract and general way about the processes that are deployed, but does not extend to breaching the privacy of the parties in these proceedings that Parliament has given to them’.

This is the premise on which Mostyn J’s view is based. DL v SL is not, properly so-called, a ‘judgment’ (as it is described: http://www.bailii.org/ew/cases/EWHC/Fam/2015/2621.html). As far as I can see it decides no issue upon which the judge was asked to adjudicate.

Of rights and the open justice principle

Three features of English law are not touched upon by Mostyn J:

  • The rule in Jaffray (Jaffray v The Society of Lloyds [2007] EWCA Civ 586) – said by the Court of Appeal to be ‘trite law’ (at [6]-[7]): that rules cannot make or change the law. As will be explained it therefore follows that a rule, still less a practice direction, cannot change the common law.
  • The open justice principle – the open justice principle (OJP) is a common law construct (as explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343; approved by, amongst other Supreme Court cases, Kennedy v The Charity Commission [2014] UKSC 20: the common law and the variety of House of Lords/Supreme Court and Court of Appeal cases which explain it, was not referred to.
  • Fundamental rights: only be changed by express language or necessary implication – as Lord Hoffman explained in R v Secretary of State for the Home Department, exp Simms R v Secretary of State for the Home Department, exp O’Brien  [1999] UKHL 33; [2000] 2 AC 115:

In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document

A private court categorisation for ancillary relief proceedings

Mostyn J seeks to create the ancillary relief categorisation of private proceedings (see §[##] below). He does so by his take on JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96. In that case, a strong Court of Appeal (More-Bick, Black and Levison LJJ, including a prominent child lawyer in Black LJ) held that in the restricted circumstances of child settlement approval anonymity might be appropriate; but – as ever – on the basis that the hearing is public.

Mostyn J mentions the case, but not its conclusion, namely:

[33] An important aspect of justice is consistency. The question for decision in each case is whether a derogation from the principle of open justice is necessary in order to ensure that justice itself is done. At one level that must depend on the facts of the individual case, but it is important to ensure a reasonable measure of consistency in order prevent the administration of justice being brought into disrepute. This is an area in which fine distinctions are difficult to justify and not easily understood. Proceedings of this kind are sadly not uncommon and some or all of the issues to which this appeal gives rise regularly confront judges dealing with such applications. It appears that applications for anonymity orders are becoming more frequent and, according to the very experienced judge who dealt with the matter below, there is uncertainty among judges about the course that should be taken. In those circumstances we think it appropriate for us to provide some guidance for judges at first instance.

[34] In our view the court should recognise that when dealing with an approval application of the kind now under consideration it is dealing with what is essentially private business, albeit in open court, and should normally make an anonymity order in favour of the claimant without the need for any formal application, unless for some reason it is satisfied that it is unnecessary or inappropriate to do so. Such an order should be drawn in terms that prohibit publication of the name and address of the claimant and his or her immediate family and also (if not already covered) the name of his or her litigation friend. The court must also recognise, however, that the public and the Press have a legitimate interest both in observing the proceedings and making and receiving a report of them. Accordingly, the Press should be given an opportunity to make submissions before any order is made restricting publication of a report of the proceedings, but for obvious reasons it will be unnecessary to notify the Press formally that an application for an anonymity order will be made. If the Press or any other party wishes to contend that an anonymity order should not be made, it will normally be necessary for it to file and serve on the claimant a statement setting out the nature of its case.

[35] With that in mind we suggest that the following principles should apply:

(i) the hearing should be listed for hearing in public under the name in which the proceedings were issued, unless by the time of the hearing an anonymity order has already been made;

(ii) because the hearing will be held in open court the Press and members of the public will have a right to be present and to observe the proceedings;

(iii) the Press will be free to report the proceedings, subject only to any order made by the judge restricting publication of the name and address of the claimant, his or her litigation friend (and, if different, the names and addresses of his or her parents) and restricting access by non-parties to documents in the court record other than those which have been anonymised (an “anonymity order”);

(iv) the judge should invite submissions from the parties and the Press before making an anonymity order;

(v) unless satisfied after hearing argument that it is not necessary to do so, the judge should make an anonymity order for the protection of the claimant and his or her family;

(vi) if the judge concludes that it is unnecessary to make an anonymity order, he should give a short judgment setting out his reasons for coming to that conclusion;

(vii) the judge should normally give a brief judgment on the application (taking into account any anonymity order) explaining the circumstances giving rise to the claim and the reasons for his decision to grant or withhold approval and should make a copy available to the Press on request as soon as possible after the hearing.

A Court of Appeal decision like this – it was a judgment of the court – is a world away from Mostyn J’s opinionated attempts to fashion a legal system according to his reasoning, truly it is.

Order for preserving privacy: gagging order

Mostyn J went on, citing himself and others (though he does not extend the normal courtesy of reproducing his reference for all of us to read (an attempt to improve sales, perhaps?)):

[2] Accordingly, for the reasons that are set out in the book Financial Remedies Practice (Class Publishing, 2015 Edition) of which I, together with Sir Peter Singer, Lewis Marks QC and Gavin Smith are the authors, at paras 27.38 – 27.63, it is appropriate for me to make an order which preserves the privacy of the parties. Accordingly, I make an order in the following terms:

“The Media is prohibited from publishing any report of this case that –

(1) Identifies by name or location any person other than the advocates or the solicitors instructing them; or

(2) Refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.”

[3] The preceding paragraphs are the reasons given by me orally on 27 July 2015, with imperfections corrected by me. However, I made it clear at the time, particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted, that I would take the opportunity of expanding my reasons when the draft transcript of judgment was received from the transcribers. This I now do.

He goes on to cite Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam), Roberts J; but not – perhaps unsurprisingly – my review of the case and OJP issues in August 2014 in Family Law News at http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko.

In that article I suggested that I was attempting –

… to provide a guide through the ‘rocky terrain’ [a quote of Mostyn J himself, from Roberts J]– limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. It involves a separation of family proceedings into: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960, s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960, s 12(1) are likely to be rare in financial remedy proceedings.

Common law or ‘sentiments’

Mostyn J warms to his theme; but perhaps confuses law with ‘sentiments’ (his word: see below):

[5] The principle of open justice has deep roots. Lord Bingham, writing in The Rule of Law (Allen Lane, 2010, p8), stated that at the heart of the concept of the rule of law is the principle that laws should be publicly made and publicly administered in the courts [Mostyn J’s emphasis].  He was reflecting Jeremy Bentham’s famous aphorism that “publicity is the very soul of justice” (Works, Vol 4, 1843). Bentham was seeking to answer Juvenal’s famous question: quis custodiet ipsos custodes? The reason why justice should be administered openly was that “it is the keenest spur to exertion, and the surest of all guards against improbity. It keeps the judge himself, while trying, under trial”. By virtue of publicity the corrupt judge would find himself condemned in “the court of public opinion”. In this way “justice becomes the mother of security”. These sentiments were strongly endorsed by the House of Lords in Scott v Scott [1913] AC 417. In more recent times Lord Widgery CJ said much the same thing in R v Socialist Workers Printers ex parte Attorney General [1975] QB 637, as did Lord Diplock in Home Office v Harman [1983] 1 AC 280 at 303 and Lord Steyn in Re S (a child)(Identification: Restrictions on Publication) [2004] UKHL 47 [2005] 1 AC 593 at para 30 (“the glare of contemporaneous publicity ensures that trials are properly conducted”). When Bentham was writing in 1843 there was, however, neither a developed appeal system (with published judgments) nor a regulated system of adjudicating complaints about judicial misconduct (the results of which are published in perpetuity on the internet). It might be thought that these developments have supplied an equally sure guard against improbity and an equally keen spur to exertion.

Mostyn J cites selectively: it is as if he is mounting an argument for a client, not giving a balanced judicial assessment. Thus, as Toulson LJ said in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343 (of release of documents used by the court) the minority in Harman ultimately carried the day as the law was later changed (see CPR 1998 r 31.22):

[33] Lord Scarman, a thinker ahead of his time, said in Harman v Home Office [1983] 1 AC 280, 316:

“Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at p 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.

…Justice is done in public so that it may be discussed and criticised in public. Moreover, trials will sometimes expose matters of public interest worthy of discussion other than the judicial task of doing justice between the parties in the particular case.”

[34] Lord Bingham CJ took matters further in SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498, 511-512:

“Since the date when Lord Scarman expressed doubt in Home Office v Harman as to whether expedition would always be consistent with open justice, the practices of counsel preparing skeleton arguments, chronologies and reading guides, and judges pre-reading documents (including witness statements) out of court, have become much more common. These methods of saving time in court are now not merely permitted, but are positively required, by practice directions. The result is that a case may be heard in such a way that even an intelligent and well-informed member of the public, present throughout every hearing in open court, would be unable to obtain a full understanding of the documentary evidence and the arguments on which the case was to be decided.

In such circumstances there may be some degree of unreality in the proposition that the material documents in the case have (in practice as well as in theory) passed into the public domain. That is a matter which gives rise to concern…

As the court’s practice develops it will be necessary to give appropriate weight to both efficiency and openness of justice, with Lord Scarman’s warning in mind. Public access to documents referred to in open court (but not in fact read aloud and comprehensively in open court) may be necessary, with suitable safeguards, to avoid too wide a gap between what has in theory, and what has in practice, passed into the public domain.”

‘Publicity of proceedings is not an absolute principle’

I regret to say that in the next sentence – the first of §[8] – Mostyn J shows the poverty of his grasp of the common law. A skim read of  http://www.familylaw.co.uk/news_and_comment/reporting-restrictions-in-financial-remedy-proceedings-a-review-after-case-management-in-cooper-hohn-v-hohn#.VgEtFN-qqko or of my ICLR blog at  ‘“To be heard in the dining hall…”: Scott 100 years on’ http://www.iclr.co.uk/to-be-heard-in-the-dining-hall-scott-100-years-on/ (and of some of the House of Lords and Supreme Court cases there cited: Mostyn J does not refer to them); or indeed of the seminal trio of (say) Scott, Attorney General v Leveller Magazine Ltd [1979] AC 440 and ota Guardian News will show – alongside European Convention 1950 Art 6(1) – how solipsistic is Mostyn J’s argument:

[8] But publicity of proceedings is not an absolute principle. Surely no-one would suggest that an adoption proceeding, which is heard completely privately, is by virtue of that privacy alone robbed of justice. Or that a civil arbitration, again heard in private, was an unjust process. There are some processes which by virtue of their subject matter should be heard in private. When Bentham wrote over 170 years ago adoption did not exist and I suppose that just about the only matter then justifying secrecy would have been national security.

The majority of the House of Lords cases on the open justice principle, from Scott onwards, stress the exceptional nature of children and adoption proceedings (see italicised passage in A v BBC at §[29] below).

The modern common law may be said to be most succinctly summarised by Lord Hodge in A v British Broadcasting Corporation [2014] UKSC 25 (another case not expressly considered by Mostyn J; and where a principled exception to the OJP was allowed, as explained by the Supreme Court):

[29] Exceptions to the principle of open justice were considered in the well-known case of Scott v Scott [1913] AC 417, in which the House of Lords emphasised in the strongest terms the importance of the general principle, but also recognised that there were circumstances in which it was necessary to depart from it. Viscount Haldane LC gave the example at p 437 of a court exercising a wardship jurisdiction: such a court was sitting primarily to guard the interests of the ward, and the attainment of that object might require that the public should be excluded. Lunacy proceedings were in a similar position. Another example given by the Lord Chancellor, of greater relevance to the present case, was litigation concerning a secret process, “where the effect of publicity would be to destroy the subject-matter”. The Earl of Halsbury considered wardship and lunacy to fall outside the scope of the general principle that justice should be administered in public, but accepted that proceedings concerning trade secrets, or to prevent the publication of private correspondence, were exceptions to that principle, observing at p 443 that “it would be the height of absurdity as well as of injustice to allow a trial at law to protect either to be made the instrument of destroying the very thing it was intended to protect”. Similar observations were made by Lord Atkinson at p 450 and by Lord Shaw of Dunfermline at pp 482-483. All of their Lordships stressed the need for a compelling justification for any departure from the principle of open justice. The Lord Chancellor said at pp 437-438:

As the paramount object must always be to do justice, the general rule as to publicity, after all only the means to an end, must accordingly yield. But the burden lies on those seeking to displace its application in the particular case to make out that the ordinary rule must as of necessity be superseded by this paramount consideration. The question is by no means one which, consistently with the spirit of our jurisprudence, can be dealt with by the judge as resting in his mere discretion as to what is expedient. The latter must treat it as one of principle, and as turning, not on convenience, but on necessity.

[30] A similar approach was followed in later cases in the House of Lords. In particular, the issue was considered in detail in the cases of In re K (Infants) [1965] AC 201 and Attorney General v Leveller Magazine Ltd [1979] AC 440. In the former case, Lord Devlin noted at p 238 that the ordinary principles of a judicial inquiry included the rules that justice should be done openly, that it should be done only after a fair hearing, and that judgment should be given only upon evidence that is made known to all parties, and also rules of a less fundamental character, such as the rule against hearsay. He continued:

But a principle of judicial inquiry, whether fundamental or not, is only a means to an end. If it can be shown in any particular class of case that the observance of a principle of this sort does not serve the ends of justice, it must be dismissed; otherwise it would become the master instead of the servant of justice. Obviously, the ordinary principles of judicial inquiry are requirements for all ordinary cases and it can only be in an extraordinary class of case that any one of them can be discarded. This is what was so clearly decided in Scott v Scott.”

After citing the dictum of Viscount Haldane which I also have cited, Lord Devlin continued at p 239:

That test is not easy to pass. It is not enough to show that dispensation would be convenient. It must be shown that it is a matter of necessity in order to avoid the subordination of the ends of justice to the means.”

[31] More recently still, the importance of the common law principle of open justice was emphasised by nine Justices of this court in the case of Bank Mellat v Her Majesty’s Treasury [2013] UKSC 38;[2013] 3 WLR 179. Lord Neuberger, giving the judgment of the majority, described the principle as fundamental to the dispensation of justice in a modern, democratic society (para 2). He added that it had long been accepted that, in rare cases, a court had an inherent power to receive evidence and argument in a hearing from which the public and the press were excluded, but said that such a course might only be taken (i) if it was strictly necessary to have a private hearing in order to achieve justice between the parties, and (ii) if the degree of privacy was kept to an absolute minimum. He gave, as examples of such cases, litigation where children were involved, where threatened breaches of privacy were being alleged, and where commercially valuable secret information was in issue.

[32] It has also been recognised in the English case law, consistently with Lord Neuberger’s requirement of the degree of privacy being kept to a minimum, that where the interests of justice require some qualification of the principle of open justice, it may not be necessary to exclude the public or the press from the hearing: it may suffice that particular information is withheld. In Attorney General v Leveller Magazine Ltd, for example, Lord Diplock accepted at p 451 that, where the court might sit in camera in order to preserve the anonymity of a witness in the interests of national security, it could instead allow “a much less drastic derogation from the principle of open justice”, namely that the witness should give evidence in public but should be permitted to withhold his name from the public and the press. Viscount Dilhorne and Lord Edmund-Davies agreed that the court could do so, in the exercise of its inherent jurisdiction to control its own procedure: pp 458 and 464 respectively. Viscount Dilhorne gave as an example the practice of allowing a witness complaining of blackmail to withhold his identity from public disclosure in court, judicially approved in R v Socialist Worker Printers and Publishers Ltd, Ex p Attorney General [1975] QB 637. The proposition that the court had no power to allow a witness’s name to be withheld from the public had been roundly rejected in that case: such a direction, it was held, was clearly preferable to an order for trial in camera where “the entire supervision by the public is gone” (p 652).

Categories of court business

Mostyn J seeks to create new law, in a ‘judgement’ which has no ratio. There was no issue tried (§[3] … I made it clear [on 27 July 2015], particularly to the representative of the media who made two short submissions in manuscript to me seeking that the order for anonymity be lifted….’, is the nearest one gets to an issue to be tried.)

He precedes this by a brief reference to the balancing test required by Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593; but he then seems to be saying that this ‘ultimate test’ is not necessary here – ie again, he tells us, he at least is entitled to ignore the House of Lords and Supreme Court. He decrees that ancillary relief proceedings are:

[10] … so personal and private that in almost every case where anonymisation is sought the right to privacy will trump the right to unfettered freedom of expression. These cases are those where the subject matter of the proceedings can rightly be categorised as “private business”. In a case of private business where the media are present (either by virtue of rules of court or a specific court order permitting that) an order for anonymisation will generally be made, if sought: see Independent News and Media Ltd and others v A (by his litigation friend, the Official Solicitor) [2010] EWCA Civ 343[2010] 2 FLR 1290. Exceptions to this general rule are where the facts demonstrate disgraceful conduct: see Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427, or where they are so striking that anonymisation is in effect impossible: see, for example, McCartney v McCartney [2008] EWHC 401 (Fam) [2008] 1 FLR 1508. This principle, preserving privacy where the subject matter of the proceedings is private business, will be applied even where the rules provide for the hearing of the case in public: see JX MX v Dartford & Gravesham NHS Trust & Ors [2015] EWCA Civ 96, which concerned the approval of a personal injury settlement in favour of a minor, at paras 17, 29 and 35.

The judge’s insouciance is almost breath-taking. The conclusion to JX MX is cited earlier in this article. JX MX did not ‘preserve privacy’. It preserved only anonymity. The court stressed that the hearing remained in open court (see italicised passage in §[34] from JX MX (above)).

‘Protected by the anonymity principle’

Ancillary relief proceedings are ‘protected by the anonymity principle’: what anonymity principle? Mostyn J has made it up. A judge – it is trite law – cannot extend the common law save as part of a decision-making process: ie where a case is argued. And then the judicial reasoning – rather special pleading (added numbers as [7] are dealt with in the text below):

[11] Ancillary relief (or financial remedy) proceedings are quintessentially private business, and are therefore protected by the anonymity principle set out above. That they are so protected is to be deduced from a number of sources. First, and most obviously, [1] Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private. The fact that the media may attend the hearing pursuant to FPR 27.11 and PD27B does not alter the fact that the hearing is in private. Second, the process involves the extraction of highly personal and private information under compulsion which the recipient may not use save for the purposes of the proceedings: see [2] Clibbery v Allen (No 2) [2002] EWCA Civ 45[2002] 1 FLR 565, and Lykiardopulo v Lykiardopulo. Therefore, according to those authorities, the media may not report any such information without leave. Third, Article 14 of the 1966 International Covenant on Civil and Political Rights, which the UK ratified in 1976, stipulates that (a) the press or public can be excluded from all or part of the trial when the interest of the private lives of the parties so requires; and (b) that judgment is not required to be public where the proceedings concern matrimonial disputes. In my judgment [3] Article 14 creates a presumption against public judgment in matrimonial disputes, and therefore it logically follows that the proceedings should not be public either as otherwise the privacy of the judgment would be fatally undermined. It is trite law that when exercising a power a court should do so consistently with the state’s international obligations. Fourth, it is my firm opinion that the Judicial Proceedings (Regulation of Reports) Act 1926 applies not merely to the suit for divorce itself but also to the proceedings for ancillary relief. At the time it was passed ancillary relief was an intrinsic part of the divorce itself. Since it has been passed it has been extended to cover proceedings for maintenance under section 27 Matrimonial Causes Act 1973, and its civil partnership equivalent: see section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968. It would be bizarre if it applied to the now nearly obsolete form of maintenance proceedings that is section 27 of the 1973 Act but not to mainstream ancillary relief proceedings. [4] In Clibbery v Allen [2001] 2 FLR 819 Munby J (as he then was) held that the 1926 Act applied to ancillary relief (now financial remedy) proceedings. In the Court of Appeal the President thought he may well be right, although Thorpe LJ had his doubts. Since then the judges have skirted around the issue: see, for example, Rapisarda v Colladon [2014] EWFC 1406 at [31] to [35] where the President left open the question whether the 1926 Act applied to financial remedy proceedings. He described this uncertainty as a ‘truly a disturbing state of affairs’. He suggested that the 1926 Act ought to be repealed. With respect, I do not agree. The Act recognises and protects the private nature of divorce proceedings. It was amended by section 2 of the Domestic and Appellate Proceedings (Restriction of Publicity) Act 1968 (as noted above); by section 66(1) of, and paragraph 2 of Schedule 8 to, the Family Law Act 1996; by section 280(2) and (3) of, and paragraph 7 of Schedule 26 to, the Criminal Justice Act 2003; and by section 261(1) of, and paragraph 8(1) and (2) of Schedule 27 to, the Civil Partnership Act 2004, and on each occasion Parliament must be taken to have endorsed its policy.

This passage, §[11], may be said to be the central passage of this part of Mostyn J’s view, yet in truth, it descends almost into farce:

  • ‘Parliament has in FPR 27.10 specifically provided that the proceedings shall be heard in private’ – no it hasn’t (said in tones of Monty Python’s Flying Circus). Family Procedure Rules Committee has made rules, supposedly under powers delegated by Courts Act 2003 ss 75 and 76. The rules are ‘made’ by Parliament but subject only to the negative resolution procedure.

 

  • Of Allan v Clibbery [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565, in the Court of Appeal: the case held precisely the opposite of what Mostyn J seems to be saying. In my ‘Open justice: the common law and exceptions to the principle: Part 1: Open justice and the common law’[2015] Family Law (forthcoming in October 2015) I explain this as follows:

The open court question and ‘private’ were considered in Allan v Clibbery  under Family Proceedings Rules 1991 (see eg paras [50] and [124]) but ‘private’ is not used in the same way in the later FPR 2010, r 27.10 as it was in that case. FPR 2010, r 27.10(2) says: ‘(2) For the purposes of these rules, a reference to proceedings held ‘in private’ means proceedings at which the general public have no right to be present’. In Allan v Clibbery, Dame Elizabeth defines ‘private’ as to exclude the public but not to have ‘the consequence of a ban on later publication’ (para [17]). Having considered the various applicable words – ‘private’, ‘chambers’, ‘in camera’ – she concluded:

‘[19] … I am driven to recall Humpty Dumpty: “When I use a word ‑ it means just what I choose it to mean ‑ neither more nor less.”

‘[20] I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

Originally Mr Allan had been granted an injunction restraining Miss Clibbery from publishing via the Daily Mirror. That was discharged by Munby J, but retained pending appeal. The President, with whom the other two LJJ agreed in her conclusion, discharged the injunction:

[83] In the present appeal, the Court has no information at all about the evidence which was adduced at the hearing in the county court, other than that reported in the newspapers. There is a blanket objection by the appellant to publication, based on the general premise that the case was heard in chambers and consequently must remain secret. On the information available to this Court and to Munby J. it was an issue of jurisdiction…. This appeal has to be decided on what the Court knows. Applying the principles which I have set out above, I can see no ground upon which, on the present facts, there cannot be publication of the proceedings. Although I consider, for the reasons set out above that he has expressed his general propositions too widely, I agree with the conclusions of Munby J. on the facts of the appeal

 

  • In my judgment – Mostyn J was not giving a judgment. His words are merely another comment from another lawyer; and on this evidence one with a shakey grasp of his subject.

 

  • Judicial Proceedings (Regulation of Reports) Act 1926 – this, I fear, is sophistry. The 1926 Act deals with publication, not with attendance at court, just as does Administration of Justice Act 1960 s 12(1). Mostyn J was dealing with exclusion from court, which is not the 1926 Act’s concern

Categorisation of ancillary relief proceedings

The categorisation issue is dealt with by Mostyn J thus:

[12] These considerations point powerfully to the categorisation of ancillary relief proceedings as private business entitling to the parties to anonymity as well as to preservation of the confidentiality of their financial affairs. Even if the rules provided for ancillary relief proceedings to be heard in public the parties would, in my judgment, be entitled to anonymity and preservation of the confidentiality of their financial affairs.

Mostyn J concluded the opposite in family proceedings under CPR 1998 (ie Trusts of Land and Appointment of Trustees Act 1996 proceedings:  ). Here he correctly cited CPR 1998 r 39.2 which provides as follows:

39.2 General rule – hearing to be in public

(1) The general rule is that a hearing is to be in public.

(2) The requirement for a hearing to be in public does not require the court to make special arrangements for accommodating members of the public.

(3) A hearing, or any part of it, may be in private if –

(a) publicity would defeat the object of the hearing;

(b) it involves matters relating to national security;

(c) it involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality;

(d) a private hearing is necessary to protect the interests of any child or protected party;

(e) it is a hearing of an application made without notice and it would be unjust to any respondent for there to be a public hearing;

(f) it involves uncontentious matters arising in the administration of trusts or in the administration of a deceased person’s estate; or

(g) the court considers this to be necessary, in the interests of justice.

(4) The court may order that the identity of any party or witness must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that party or witness.

This may well represent a codification (in Lord Diplock’s words) of the common law. If so it applies to family proceedings (and on a principled basis Mostyn J could simply have said – after a proper evaluation of Human Rights Act 1998 s 12 (rights of the press) – that r 39.2(3)(c) applied).

FPR 2010 rr 27.10 and 27.11 on the evidence of r 39.2 and the common law, and on the basis of what the Court of Appeal held in Allan v Clibbery, are ultra vires the rule-makers.

Conclusion

Not allowing himself to be burdened by an application of the common law, or of Supreme Court authority which contradicted him, said Mostyn J in conclusion:

[17] In this case (the details of which are unremarkable and which are briefly discussed below) I was entirely satisfied that the general rule of anonymity and privacy should be respected and I therefore made the orders referred to above. The order itself is attached to this judgment at Annex A…. [and see his summary in his §[2] above].

David Burrows

22 September 2015

A CHILD’S ‘AGE AND UNDERSTANDING’: a thought or two from Lord Scarman

‘Ascertainable wishes and feelings’: meaning of ‘age and understanding’

There is no statutory definition of ‘age and understanding’. The extent of a child’s maturity will depend on the individual child and on the proceedings in contemplation. In Re S (A Minor) (Independent Representation) [1993] 2 FLR 437 Sir Thomas Bingham MR (at 444H) explained this. Their views must be listened to even if they are not followed (italicised passage below). Baroness Hale explained this in Re D (A Child) [2006] UKHL 51, [2007] 1 FLR 961:

There is a growing understanding of the importance of listening to the children involved in children’s cases. It is the child, more than anyone else, who will have to live with what the court decides. Those who do listen to children understand that they often have a point of view which is quite distinct from that of the person looking after them. They are quite capable of being moral actors in their own right. Just as the adults may have to do what the court decides whether they like it or not, so may the child. But that is no more a reason for failing to hear what the child has to say than it is for refusing to hear the parents’ views.

Gillick: the modern common law

The common law on whose ‘rights’ predominate (specifically, as between parent and mature child over consent to medical treatment) remains as defined in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 FLR 224; confirmed by eg R (Axon) v The Secretary of State for Health and anor [2006] EWHC (Admin), [2006] 2 FLR 206 Silber J).

A 16-year old can consent to ‘any surgical, medical or dental treatment’ as if of full age (Family Law Reform Act 1969 s 8(1)). This is clear; but any younger? Statute law is silent. So, said Lord Scarman (at [1986] 1 FLR 224 at 250): ‘It is open [to the House of Lords] to formulate a rule’. Legal principle must try ‘to keep the law abreast of the society in which [the judges] live and work’ (at 248):

If the law should impose upon the process of ‘growing up’ fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change…. Unless and until Parliament should think fit to intervene, the courts should establish a principle flexible enough to enable justice to be achieved by its application to the particular circumstances proved by the evidence placed before them.

Of ‘understanding and intelligence’ he said (at 253):

… I would hold that as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law.

Without prejudice rule immunity – unrevised

1        INTRODUCTION

Negotiation immunity

  • Without prejudice rule immunity is more generally known as without prejudice privilege. This book will avoid the term ‘privilege’, because privilege is generally reserved for confidential information which is specific to an individual person (and perhaps their representatives); whereas the ‘privilege’ which arises from the without prejudice rule is shared by the parties to the case (at least two people), perhaps one or more mediators, legal representatives and so on. It can be described as ‘privilege’ only to the extent that where the rule applies the content of negotiations and documents arising from them are excluded by operation of the rule from production in court at trial of a case.
  • By definition without prejudice immunity does not protect confidences as between the parties. It enables them by their implied agreement, to exclude certain information from the court.[1] This was explained by Jacobs LJ in Reed Executive plc and another v Reed Business Information Ltd and others [2004] EWCA (Civ) 887, [2004] 1 W.L.R. 3026:

[19] [It is submitted] that the exclusion of “without prejudice” negotiations is a rule of evidence not a privilege, relying on Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case was not actually concerned with the difference. Nor, as I see, does it matter what label is attached to it. It is a rule of law. Normally “privilege” attaches to the rights of a single party, for instance a party has, and can waive, legal professional privilege. The detail of “without prejudice” negotiations has some analogy, the difference being that it is admissible if both parties “waive” their rights to non-disclosure….

Terminology

  • Mediation as a subject has developed a varied, and sometimes confusing, terminology. ‘Conciliation’,[2] the original term for the subject, was derived largely from the use of the word in the Finer report (Report of the Committee on One-Parent FamiliesJuly 1974 Cmnd 5629, Sir Morris Finer at (paras 4.85-4.90)). One of the earliest cases on mediation was Re D (Minors)(Conciliation: Privilege).[3] This word was thought too close to the word ‘reconciliation’. The term mediation tended to be used as time went on.
  • ‘Mediation’ is now subsumed in many instances by the term ‘alternative dispute resolution’; or the negative (and therefore uninformative) ‘non-court dispute resolution’ (Family Procedure Rules 2010 Part 3[4]. Meanwhile, ‘dispute resolution’ has now been adopted as another word – some might say a euphemism – for the civil litigation process. ‘Additional’ is a word used by Lord Bingham in the mediation context (‘additional dispute resolution’).[5]

2        WITHOUT PREJUDICE RULE

Use of the words ‘without prejudice’: rebuttable presumption as to privilege

  • Without prejudice immunity depends on the existence of genuine settlement negotiations: privilege will then attach to documents arising from those negotiations. Use of words such as ‘without prejudice’ on correspondence or at the outset of a meeting does not dictate whether a document or meeting is covered by the rule. Lord Hope explained this in Ofulue v Bossert:[6]

[2] Sometimes letters get headed ‘without privilege’ in the most absurd circumstances, as Ormrod J observed in Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378, 1384. But where the letters are not headed ‘without prejudice’ unnecessarily or meaninglessly, as he went on to say at p 1385, the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain…. Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.

  • It is the circumstances and the intent of any meetings or the content of relevant correspondence which will dictate the immunity; not whether or not such words as ‘without prejudice’ or ‘off the record’ are used in some form. Are the negotiations part of a genuine attempt to settle anticipated court proceedings (considered further below)?
  • That said, the use of ‘without prejudice’ by the parties to a negotiation suggest that they intend that privilege should apply to their discussions. In Williams v Hull[7] Arnold J concluded, echoing the comments of Ormrod J and Lord Hope above, that if a letter is in fact headed ‘without prejudice’ there is a rebuttable presumption that it will be treated as being covered by the without prejudice rule:[8]

[18] It is well established that a communication which is not expressed to be “without prejudice” may nevertheless be protected by the rule, and that a communication which is expressed to be “without prejudice” may nevertheless not be protected by the rule. In South Shropshire District Council v Amos [1986] 1 WLR 1271 at 1277 Parker LJ said that, where a letter was marked ‘without prejudice’: ‘This prima facie means that it was intended to be a negotiating document.’… Nevertheless, I think it is correct to say that, if a letter is expressly stated to be ‘without prejudice’, that gives rise to a rebuttable presumption that the communication is a without prejudice communication within the meaning of the rule unless it is clear that the expression has been used with some other meaning or purpose.

Definition: privilege for admissions in negotiations

  • The without prejudice rule entitles a party not to produce in evidence to the court details of negotiations in relation to litigation, or anticipated litigation. It protects statements or offers made in the course of negotiations for settlement of a case from being put before the court as admissions against interest.
  • The general rule as to admissions is not only that they bind the maker of the admission; but they relieve the party who relies on the admission from further proof if the admission is of evidence relevant to the issue in a case. Contents of pleadings and court statements (eg of assets and other facts relevant to a case) are easy examples. Admissions may be made by parties or their representative in correspondence. These admissions can be relied on at trial.
  • By contrast where the without prejudice rule applies neither party can rely on admissions made by the other whilst the immunity covers them. This was explained by Lord Clarke (with whom the other law lords agreed) in the Supreme Court in Oceanbulk Shipping & Trading SA v TMT Asia Ltd and ors) [2010] UKSC 44 (‘Oceanbulk’) as follows:

[19] The approach to without prejudice negotiations and their effect has undergone significant development over the years. Thus the without prejudice principle, or, as it is usually called, the without prejudice rule, initially focused on the case where the negotiations between two parties were regarded as without prejudice to the position of each of the parties in the event that the negotiations failed. The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations. The underlying rationale of the rule was that the parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute.

  • Lord Clarke then referred to a variety of case law which had developed and understanding of the rule, each of which will be considered below:

[21] It is now well settled that the rule is not limited to such a case. This can be seen from a series of decisions in recent years, including most clearly from Cutts v Head [1984] Ch 920, Oliver J, Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, Muller v Linsley & Mortimer [1996] PNLR 74, Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 and most recently Ofulue v Bossert [2009] UKHL 16, [2009] AC 990.

(1)       The public policy element

  • What is regarded as the public policy element to the without prejudice rule is to encourage parties to speak frankly in the hopes that they will settle their litigation. This was explained by Lord Griffiths in Rush & Tomkins Ltd v Greater London Council [1989] 1 AC 1280:

[23] …The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head Cutts v Head [(above) at] 306:

That the rule rests, at least in part, upon public policy:… that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156, be encouraged fully and frankly to put their cards on the table. … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability…

(2)        Contractual element

  • The contractual basis of the without prejudice rule rests on the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite their negotiations, a contested hearing ensues. In Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 (at 2442) Robert Walker LJ considered the general incidents of application of the rule, first as to public policy (above) and then by reference to its contractual qualities, as follows:

Its other basis or foundation is in the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite the negotiations, a contested hearing ensues.

  • The agreement may be waived by the parties (whether expressly or impliedly); but waiver can only be by both or all of the parties jointly (any mediator’s assent is not needed[9]). In the case of Calderbank correspondence (Calderbank v Calderbank[10]) the express waiver by one party is accepted as part of an implied term which is treated by both as excluding the immunity; but solely where the court may be asked to adjudicate on the specific question of costs.

Privilege: a fair trial and onus of proof

  • However, as with any form of privilege or confidentiality, if it is upheld, a successful claim deprives the court of relevant evidence and thus is in conflict with a party’s right to a fair trial.[11] In all other circumstances an admission openly made as between the parties will bind the party who makes it.
  • As with other forms of privilege the onus of proof of application of the without prejudice rule in each case – whether of privilege or confidentiality – will be upon the person asserting the immunity. Lord Edmond-Davies put the point in Waugh v British Railways Board [12] as follows: ‘It is for the party refusing disclosure to establish his right to refuse’. The general rule – as ever – is that all material evidence should be available for inspection.

 

3        LITIGATION IN PROSPECT

Court proceedings, or ‘a real dispute capable of settlement’

  • The without prejudice rule attaches only where there are court proceedings in existence, or there must be ‘a real dispute capable of settlement’. The principle that there must be a dispute and an attempt to resolve it was explained by Lord Mance in Bradford & Bingley Plc v Rashid[13] as follows:

[81] …The existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as ‘without prejudice’. This is clear from the passage … from Lord Griffiths’ speech in Rush & Tompkins Ltd v Greater London Council [(above) and there quoted in full]: ….The rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise….

  • In what circumstances can it be said that proceedings are genuinely anticipated? When can it be said that there is a ‘real dispute capable of settlement’ and therefore of engaging the rule? Sometimes this will be obvious. Two people who have hitherto lived together as a couple in a more or less harmonious relationship, do not normally meet and discuss their future financial arrangements with a mediator unless at that stage one or both of them think their relationship or marriage is at an end. It can be assumed, unless the contrary is proved, that there is between them a dispute which needs resolving, and which is capable of settlement.
  • By contrast, another couple, who are still together, discuss the value of their house in circumstances where it is agreed between them that it will be sold. Figures and other terms for the sale are agreed, and an estate agent is instructed. Later, but before the house has been sold, the same couple become involved in matrimonial proceedings which also concern the property. The question may then arise as to whether discussions about the original sale are covered by the without prejudice rule. Answers to this question and that in the previous paragraph will be considered at 4.## below.

Litigation: how proximate?

  • In most cases it will be relatively clear whether litigation is in prospect: for example, where a couple separate and go to mediation to discuss settlement. By contrast, there may be many commercial arrangements which involve relatively bruising negotiations but where litigation is not necessarily in prospect. This question arose in Framlington Group Ltd & Anor v Barnetson.[14] Mr Barnetson (B) claimed damages against Framlington for wrongful dismissal from its employment as its chief operating officer and for other alleged breaches of his contract of employment. Information as to the course of negotiations which preceded and followed the dismissal was detailed in B’s statement in later court proceedings arising from the parties’ dispute. Framlington sought to have this information excluded so far as it contained details of the parties’ negotiations.
  • The outcome of the negotiations, as Auld LJ held, was that the truth of the parties’ positions was that ‘they were already well and truly at odds as to [Mr Barnetson’s] contractual entitlement’. What followed ‘amounted to wrangling over the terms of that entitlement, not discussions as to variation of them’ as the judge below had found. The Court of Appeal was therefore confronted by:

[38] …negotiations arising out of a dispute as to Mr Barnetson’s contractual entitlement on his early dismissal, all against the backcloth of potential litigation if they could not resolve the dispute by compromise.

‘Contemplation of litigation’

  • Auld LJ looked at the question which the court must ask as: ‘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’ (para [32])? This was a factor; but proximity must also depend on the nature and subject matter of the dispute, he said:

[34] 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.

  • In Portnykh v Nomura International plc [15] considers the proximity argument where it was said by one party that the particular negotiations – where a former employee made concessions in relation to his employment in redundancy negotiations – are not in connection with a dispute or ‘potential dispute’. The judge held that the redundancy negotiations were part of a continuum which included the later tribunal proceedings, Therefore, the earlier redundancy negotiations, including email correspondence and admissions made in the course of them, were immune from production in the later tribunal hearing. They could not be relied upon in any way by Dr Portnykh’s former employers.

Family proceedings

  • The two examples at 4.## and 4.##, considered in the light of what Auld LJ says on the subjects of proximity and contemplation of proceedings in Framlingham, can be answered as follows:
  • If the first relationship later fails – perhaps four or five years (or more) after the mediation, the discussions would remain confidential, and almost certainly covered by privilege, on the ground that the parties would only have gone to mediation because they thought their relationship was at an end. They would come within Auld LJ’s comment: that 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’ (para [34]).
  • If the second relationship fails, both parties would be entitled to say that litigation was not in prospect when they agreed the sale of their house, and the conditions on which it should be sold. On this basis, and if the sale arrangements were relevant to an issue before the court, evidence as to the detail of their negotiations would be admissible in subsequent financial order proceedings.

4        PROCEDURE FOR DISCLOSURE AND AGREEMENTS

Disclosure under the rules

  • The fact of a party believing that documents are covered by the without prejudice rule does not exempt that party from disclosure (in the sense that a party ‘discloses a document by stating that a document existed’: CPR 1998 r 31.2, FPR 2010 r 21.1(1)[16]); though most of the documents and information (content of discussions etc) will, by definition, be common to both parties to proceedings. (Different rules apply where a stranger to the original proceedings applies to override the confidentiality in without prejudice documents: see discussion of Muller v Linsey (below)[17]). Without prejudice rule documents will be immune from production unless the court orders production (eg because one party persuades the court that an exception to the rule applies[18]); or it is held that privilege does not in any event apply.

Agreements in without prejudice correspondence

  • If a party wishes to allege that there is an agreement between him/her and the respondent, the general rule of pleading (summarised in CPR 1998 PD16A paras 7.3 to 7.5[19]) is that the agreement must be specifically pleaded. The person who asserts the agreement must set out its terms in court documents. This gives rise to tow issues for disposal by the court and depending on whether correspondence is said by one party to be covered by without prejudice immunity:
  • If all the correspondence the court will be confronted with a construction issue: does the correspondence and other dealings amount to a contract?[20]
  • If correspondence is all covered by the without prejudice rule immunity, has agreement been reached so that the rule no longer applies.[21]
  • Where it is said that the agreement derives from without prejudice correspondence the party alleging the agreement will want to produce the material, marked without prejudice’ in court. The documentary evidence is likely to take one of two forms (particular rules apply in matrimonial and children proceedings which are dealt with separately[22]):
  • The agreement will have been reached in the course of pre-issue discussions, and will therefore take the form of a construction issue (CPR 1998 Part 8) where the court is asked to construe whether there is an agreement between the parties on the basis of the correspondence disclosed.
  • The agreement will have been reached in the course of issued proceedings. The application for a finding as to whether there is a concluded agreement will therefore be interim to those proceedings (CPR 1998 Part 23). Particular care will need to be exercised with the court administration, since if the application fails documents still covered by privilege will need to be removed from the court file.
  • The principles in relation to what follows apply whether the agreement is reached between the parties alone (subject to any difficulties there may be in actually defining – construction of terms – what was agreed), in solicitors’ correspondence or following mediation or other dispute resolution. As will be seen[23] a mediator, and perhaps a judge as mediator at a Financial Dispute Resolution appointment,[24] is compellable to give evidence in relation whether there was an agreement and as to its terms.

Withholding inspection

  • The procedure by which a claim that without prejudice rule immunity does not apply is made under CPR 1998 r 31.19(4) (or FPR 2010 r 21.3(4)) following the procedure in West London Pipeline and Storage Ltd v Total UK Ltd.[25]
  • Where as in Williams v Hull (above) or Brown v Rice and anor,[26] the content of the without prejudice correspondence is the issue, then plainly it must be dealt with as a preliminary issue. The judge must consider the without prejudice correspondence since it is only by so doing that s/he can determine whether the immunity applies: was there impropriety (Williams v Hull); or was there a concluded agreement (Brown v Rice)? In both cases, for different reasons the immunity remained. And if it is held that the immunity remains then the judge who has made that decision cannot try the final issue (unless both parties agree).

Pleading the agreement

  • Specific provision for pleading the existence of an agreement in civil proceedings is set out in CPR 1998 PD16A paras 7.3 to 7.5. Where the alleged agreement has arisen in pre-proceedings correspondence and one party seeks to resile from what the other believes to be an agreement, application can be made (CPR 1998 Part 8) for the court to construe whether there was an agreement; and if so that agreement can then be enforced in ordinary contract law terms.
  • This principle applies equally to an agreement reached between any couple living together (ie whether married or not). However, special rules apply (see part (4) below) to married couples. Certainly if an unmarried couple, with or without children, reach an agreement as to their disposal of their former home (or other issues) then if that is recorded in without prejudice correspondence it will be capable of being construed as an enforceable agreement (subject to any questions which arise as to the agreement being in writing under Law of Property (Miscellaneous Provisions) Act 1989 s 2(1)[27]).
  • It may be said that agreement as to the outcome of a dispute has been reached or (as in Tomlin v Standard Telephones[28]) that there was agreement as to a single issue to which both should be held. In either event the application is under CPR 1998 Part 23 or FPR 2010 Part 18 for consideration of the agreement as a preliminary issue.

5       ADMISSIONS AGAINST INTEREST

Admissions in the course of proceedings

  • Admissions against interest are the mainstay of the without prejudice rule. It enables a party litigation or anticipated litigation to make admissions against interest which cannot then later be adduced later in any proceedings if mediation or other attempts at settlement (eg in solicitor’s correspondence) fail. It is therefore necessary to briefly look at the rules of evidence in relation to admissions and then to look at those rules in the context of the without prejudice rule.
  • In the course of proceedings a party may admit facts. Subject to any later amendment or withdrawal of that admission, the party making the admission will be bound by it. If a party has admitted a fact there is then no need for another party to prove that fact insofar as it is otherwise relevant to an issue between the parties. A simple example of an admission occurs in divorce proceedings where the rules provide that signature on an acknowledgement of service by the respondent to an adultery petition (MCA 1973 s 1(2)(a)) constitutes that respondent’s admission of adultery (FPR 2010 r 7.12(5)) sufficient for the petitioner to obtain a decree nisi. The admission in the acknowledgement of service provides the evidence against the respondent, and it needs no corroboration. Similarly parties to financial remedy proceedings are required in Form E ### to state an estimate of the value of the freehold property they require as part of financial provision###. That is an admission expressed as a need, which could have repercussions for the spouse who makes it where, for example, the other spouse is proved to have more substantial assets than was thought when the admission was made.[29]
  • Silence cannot be treated as an admission. If an assertion made by the claimant is not expressly denied by the respondent this cannot be treated as an admission by that respondent of a fact in issue. Notice to admit such a fact must formally be given.

Notice to admit facts or documents

  • FPR 2010 rr 22.15 and 22.16 adopts the wording of CPR 1998 rr 32.19 and 32.20 and FPR 2010 r 22.15 and 22.16 make formal provision for notices to admit facts and to admit the authenticity of documents (or to produce documents).This deals with admissions as to two separate evidential matters:
  • Facts may be in issue; but one party believes the other has the evidence or ability to admit to their truth. This will overcome the need for the serving party to prove those facts.
  • Deemed admission of facts in a disclosed document; unless a counter-notice requiring proof is served.
  • Thus, where a party gives notice to admit a fact and the other party does not respond, it is then necessary for the serving party to prove the matters referred in the notice if they remain relevant to an issue for trial.

Admissions against interest

  • The extent to which an admission against interest is the main component in the without prejudice rule is stressed by Robert Walker LJ in Unilever plc v The Procter & Gamble Co[30] (‘Unilever’, and a case which is significant in the context of the without prejudice rule) (emphasis added):

[35] …. the without prejudice rule is founded partly in public policy and partly in the agreement of the parties. They show that the protection of admissions against interest is the most important practical effect of the rule. But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties … to speak freely about all issues in the litigation ….

[36] Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers … sitting at their shoulders as minders.

‘Content of discussions’

  • The subject of the without prejudice rule has been considered by the House of Lords and the Supreme Court twice in recent years (Ofulue v Bossert and Oceanbulk). Judges remain committed to the principle that only what is necessary should be done to restrict the immunity provided by the rule. It is essential that all possible must be done to encourage parties to speak freely, and in the hopes that settlement can thereby be achieved.
  • Just as without prejudice immunity covers negotiations which are part of mediation and other forms of dispute resolution, so too it extends ‘much more widely to the content of discussions’ as a whole, as Lord Clarke explained in Oceanbulk where he said, referring again to Unilever:

It is therefore sufficient to quote [Unilever to show] that the rule is not limited to admissions but now extends much more widely to the content of discussions such as occurred in this case. He said this at pp 2443H-2444C:

‘Without in any way underestimating the need for proper analysis of the rule, I have no doubt that busy practitioners are acting prudently in making the general working assumption that the rule, if not ‘sacred’ (Hoghton v Hoghton (1852) 15 Beav 278, 321), has a wide and compelling effect. That is particularly true where the ‘without prejudice’ communications in question consist not of letters or other written documents but of wide-ranging unscripted discussions during a meeting which may have lasted several hours.

‘At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterised as threats, or as thinking aloud) about future plans and possibilities….’

‘Ability to speak freely’ and open discussions

  • There will be cases where the court must decide whether the rule applies at all. The importance of the ability of parties to speak freely in negotiations is emphasised by Unilever (see comment of Robert Walker LJ above); but this must be kept within the limits of the terms of the negotiations. In R v K (A),[31] a husband (K) filed his Form E. After he had filed it his Form E K and the respective firms of solicitors met later in the same day. The solicitors’ accounts of the meeting differed; but the judge found that the early part of the meeting was deliberately intended to be open. Thus it was not covered by any form of privilege from later disclosure in the intended criminal proceedings.
  • Accordingly the Court of Appeal held that the without prejudice rule and Robert Walker LJ’s comments as to dissecting ‘out identifiable admissions [so as to] withhold protection’ from other parts did not assist K:

[49] We accept that if parties to a dispute have entered into “without prejudice” communications with a view to compromising their differences, the protection which normally attaches to such communications covers whatever is said in the course of them, including admissions, and that it is not permissible to isolate some parts and treat them as falling outside that protection. However, that is not this case. There is nothing to prevent parties from expressly agreeing that some communications are “on the record”—that is, unprotected—and others are not. The question the judge had to decide was whether the first part of the meeting [was] held under the cloak of without prejudice protection. Although the notes could be clearer in some respects, we are left in no doubt that it was understood by all present that the first part of the meeting was intended to be “on the record”, in the sense that there were to be no restrictions on the subsequent use that either party could make of what was said, and that the “without prejudice” protection was invoked immediately before Sears Tooth put forward initial proposals with a view to reaching a compromise. We therefore agree with the judge that the first part of the meeting was not held on a “without prejudice” basis.

6       TERMINATION OF PRIVIELGE

Termination or exception of privilege

  • Other than by waiver, when (if at all) does without prejudice immunity, and any confidentiality arising from the immunity, come to an end? The privilege from disclosure of without prejudice documents operates only in respect of production in court, and in respect of deployment in any proceedings which may arise following or alongside the negotiation. Two questions follow from this:
  • Once the entirety of the proceedings are at an end then as between the parties and the court it could be argued that there is no longer any question of privilege from production. To what extent does the confidentiality in the documents remain following conclusion of the proceedings by a court order, so that others can still be prevented from seeing them?[32]
  • The privilege or immunity may also overridden by law in a number of circumstances explained below.

Conclusion of proceedings

  • The conclusion of proceedings (at (1) in the previous paragraph) deals with three sets of circumstance as to when the privilege may be said to subsist or not:
  • Continuation of the immunity as between the parties;
  • Continuation as between one party to a settlement (A) and another party in proceedings (B) arising out of the same dispute where one party to the settlement (A) is a party in the separate proceedings with (C); and
  • Reliance on the privilege in separate proceedings where one party to the settlement is a party in the separate proceedings.
  • In the case of (1) and (3) it may be that the without prejudice rule immunity does not survive; whereas in (2) it does.

Continuation of immunity as between the parties

  • Where a court order is made disposing of all issues between parties then, as between the parties themselves (not third parties to proceedings, see (2) below), the question arises as to whether the immunity arises; or, for example, can one party rely on otherwise immune documents in support of a claim for costs (Calderbank correspondence or not)? When there is an issue before the court as to whether without prejudice communications have resulted in a concluded agreement, evidence of those communications is admissible: Tomlin v Standard Telephones.[33] This was explained by Mr Stuart Isaacs QC (deputy High Court judge) in Brown v Rice:[34]

[10] … when the issue is whether without prejudice communications have resulted in a concluded settlement agreement. This is for the understandable reason that without considering the communications in question it would be impossible to decide whether there was a concluded settlement agreement or not, see Tomlin [(above)) at 1382G and 1386A].

  • If the immunity becomes redundant once there is a court order which disposes of all issues, there is no need for argument about whether the privilege from disclosure exists. Without subsisting proceedings there is no need for the immunity to be continued. Parties can then refer to the position they adopted in mediation or other forms of negotiation when the separate issue of costs comes to be decided.

Confidentiality and without prejudice rule immunity

  • But what of the confidentiality which exists in the negotiations and any documents arising from them? Communications hitherto covered by the without prejudice rule remain confidential as between the parties and any third party (such as a mediator), perhaps indefinitely (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J, considered fully at 9.** etseq below). The privilege can only exist as between the parties to the negotiations and the court. Once all court proceedings – the main issue and any third party or intervener claims (as in Rush & Tompkins) – are at an end, or are disposed of by the court (Ofulue v Bossert); or once agreement has been reached in the negotiations, privilege goes (or ceases to be applicable). Meanwhile confidentiality remains.

6        THE OVERRIDING OF WITHOUT PREJUDICE IMMUNITY

Without prejudice privilege: ‘the ability to speak freely’

  • In Unilever plc v The Proctor & Gamble Co [1999] EWCA Civ 3027, [2000] 1 WLR 2436 Robert Walker LJ (as Lord Walker the same judge sat in the House of Lords in Ofulue v Bossert and in the Supreme Court in Oceanbulk) sets out what he terms the ‘most important instances’ (at para [24]) where the without prejudice rule may be held not to apply. Evidence, otherwise thought to be immune from production, may be admissible in subsequent proceedings.
  • The list set out by Robert Walker LJ in Unilever in the Court of Appeal was cited with approval by the House of Lords/Supreme Court in both Ofulue v Bossert and in Oceanbulk Shipping, and is as follows:
  • Where the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible (see eg Tomlin v Standard Telephones and Cables [1969] 1 WLR 1378).
  • Evidence of the negotiations is admissible to show that an agreement arising from negotiations ‘should be set aside on the ground of misrepresentation, fraud or undue influence’.
  • Even if no compromise results ‘a clear statement which is made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel’ (see eg Neuberger J in Hodgkinson & Corby v Wards Mobility Services [1997] FSR 178 at 191).
  • One party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (see eg Williams v Hull (below)).
  • ‘Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence.’
  • In Muller & anor v Linsley & Mortimer [1994] EWCA Civ 39, [1996] PNLR 74 (see also above at 8.**) one of the issues between the parties was whether the claimant, in an action against his former solicitors, had acted reasonably to mitigate his loss in his conduct and conclusion of other negotiations and compromise of proceedings. Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiations, ‘and as therefore falling outside the principle of public policy protecting without prejudice communications.’
  • The exception for an offer expressly made ‘without prejudice except as to costs’ was clearly recognised by this court in Cutts v Head, and by the House of Lords in Rush & Tomkins, as based on an express or implied agreement between the parties (and see Calderbank v Calderbank considered at 8.** below).
  • Privilege in relation to ‘matrimonial conciliation’ (described by Robert Walker LJ as ‘That hybrid species of privilege’ will be considered in the next chapter).

Without prejudice correspondence: evidence of agreement

  • Where one party asserts that correspondence, otherwise covered by the without prejudice rule, is evidence of an agreement then – if that party is correct – the immunity from production of the evidence to the court goes (Tomlin v Standard Telephones and Cables (above)). The correspondence, formerly immune from production, becomes the evidence (or part of it) for the agreement between the parties. The alleged agreement in Tomlin v Standard Telephones was that in correspondence – all marked ‘without prejudice’ – the parties had agreed that, whatever the outcome of the damages claim in terms of quantum, the plaintiff should receive fifty per cent. A hesitant Court of Appeal (Ormord LJ dissenting) held that this is what had been agreed. Dankwerts LJ (with whom Sir Gordon Wilmer agreed) reasoned the agreement point as follows (at 1382-1383):

… In the course of his judgment, however, Lindley LJ [in Walker v Wilsher (1889) 23 QBD 335] said at 337

‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

That statement of Lindley LJ is of great authority and seems to me to apply exactly to the present case if, in fact, there was a binding agreement, or an agreement intended to be binding, reached between the parties, and, accordingly, it seems to me that not only was the court entitled to look at the letters, though they were described as ‘without prejudice’, but it is quite possible (and, in fact, the intention of the parties was) that there was a binding agreement contained in that correspondence.

  • An example of the point is provided by Admiral Management Services Ltd v Para-Protect Europe Ltd & Ors [2002] EWHC 233 (Ch), where Stanley Burnton J considered a claim on a preliminary issue as to interpretation of the terms of a paragraph in a Tomlin order otherwise agreed between the parties. Of this he held as follows:

[71]…when it is alleged that a settlement has been concluded as a result of without prejudice communications, those communications are admissible as to the issue whether a settlement has in fact been concluded: Tomlin v Standard Telephones [1969] 1 WLR 1378. Similarly, in the case of a settlement made in without prejudice correspondence, the correspondence, although privileged when sent and received, is admissible in the event of a dispute as to the terms and meaning of the settlement, on the same basis that any correspondence in which a contract is made is admissible.

  • Whether the same will be said of the content of mediation negotiations where a memorandum of understanding is concluded but has not been advised upon by lawyers, remains to be seen. The likelihood is that this will depend upon at what time it is held that the agreement becomes executory.[35]

Without prejudice used to ‘cloak perjury, blackmail or other unambiguous impropriety’

  • Without prejudice rule documents cease to be immune from production if they are established as being used a ‘cloak for perjury, blackmail or other unambiguous impropriety’. Robert Walker LJ’s list (in Unilver at 2444) describes this heading as:

Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffmann LJ in Forster v Friedland (unreported), 10 November 1992; Court of Appeal (Civil Division) Transcript No. 1052 of 1992).

  • The impropriety allegation was raised as a preliminary issue in Williams v Hull.[36] The main claim was by former cohabitants who sought a declaration from the court as to their beneficial interests in their jointly owned property under Trusts of Land and Appointment of Trustees Act 1996. Their contributions to the purchase price had been such that Ms Williams (W), who was herself a solicitor, had paid appreciably more than Mr Hull (H). The couple had signed a TR1 (transfer of title) which appeared to have been altered after its execution by them. This was the document which might be treated as defining their beneficial entitlements.
  • W sought an order that privilege did not attach to a letter written to her by H. This letter was one in a series of three written by the couple to each other before the issue of proceedings. W wanted to rely on the second letter from H to her and headed by him: ‘Subject to Contract and Without Prejudice’ where he made specific reference to his then estimate of the valuation of, and of his share in, the property. W wanted H’s letter admitted because, she said, the letter was not covered by the without prejudice rule which. To allow it to remain immune would act as a ‘cloak for perjury’ by H. She argued that H’s pleaded case – that he was entitled to an equal share in the property with her – was contradicted by the letter.
  • Arnold J held that there might be inconsistencies between H’s pleaded case and what was asserted in the letter, and this might lead ultimately to an allegation of perjury. However, such an allegation at a preliminary stage in the proceedings was not enough to override the immunity to production of the letter at this stage. It must remain covered by without prejudice rule immunity from production.

Facts admitted in negotiations, later denied

  • The facts admitted basis for exception from without prejudice rule immunity applies in any civil proceedings. Family financial remedy proceedings provide an easy example, where (say) a party has admitted facts in the course of negotiations, but denies one or more of those fact when it comes to a final hearing. For example, in negotiations between solicitors, in collaborative law sessions or in mediation a spouse (A) admits to possession of a particular asset; but when settlement does not follow he will not admit the existence of the asset in sworn or other court documents.
  • A preliminary issue application can be made to establish whether the admission was made and whether A’s admission is covered by privilege given that, on the face of it, it is covered by the rule against privilege being used as a ‘cloak for perjury, blackmail or other “unambiguous impropriety”’.[37] A mediator may find him/herself called to give evidence if an admission has been made and only the mediator can corroborate the claimant spouse’s evidence on this issue. The same would apply to a district judge at a FDR.[38]

6        WAIVER OF WITHOUT PREJUDICE IMMUNITY

Joint waiver

  • Without prejudice immunity can only be waived by the person or persons who are entitled to immunity as a result of it. Without prejudice immunity is joint as between the parties to the negotiation. It can only be waived by them jointly (save in the case of the Calderbank reservation on costs, where the right to refer to negotiation can be retained: privilege can be unilaterally waived on that issue alone). As between the client (the parties to the mediation) and the mediator, the privilege is always that of the client jointly with other parties to the mediation.
  • If there is a negotiated agreement, the terms of that and background facts on which it is based or to determine whether it is an agreement can be adduced in evidence a subsequent trial. To that extent the immunity no longer applies where it the issue before the court.[39]

7        DUTY TO DISCLOSE TO THIRD PARTIES

Duty to anyone funding the litigation

  • A party to litigation, who is funded by a third party (but not their opponent: eg under Matrimonial Causes Act 1973 s 22ZA (legal services order)), may find themselves under an requirement to provide information about settlement as part of any agreement between a client and the lender; just as a company may need to inform its auditors of the state of any outstanding litigation (and perhaps the likelihood of settlement) when accounts are prepared.
  • As between the loan company and its borrower it is entirely understandable that this condition should be required (see similar provision for legal aid below); but strictly speaking the information in, and the documents concerned, are subject to the without prejudice rule. It could be said that the other party’s knowledge of the loan would imply a term into the contractual basis of without prejudice correspondence

Statutory requirement to disclose

  • Civil Legal Aid (Procedure) Regulations 2012 reg 40 imposes on the lawyer for the person with the benefit of legal aid certificate a number of duties concerning the conduct of their case, to Legal Aid Agency (‘LAA’). Some of this information, especially, if part of negotiations or marked ‘without prejudice’, may be confidential as between the client and other parties to the proceedings. A similar provision has existed in previous legal aid delegated legislation (eg Civil Legal Aid (General) Regulations 1989 imposed on the lawyer a duty to ‘make a report’ but only ‘where the assisted person declines to accept a reasonable offer of settlement or a sum which is paid into court’).
  • Civil Legal Aid (Procedure) Regulations 2012 reg 40(3)(a) provides as follows:

(3) The provider must report to the Director—

(a)a refusal by the individual (or the person acting on behalf of the individual) to accept—

(i)an offer to settle;

(ii)an offer to mediate any issue in the proceedings;

(iii)an offer to use an alternative dispute resolution procedure; or

(iv)any other offer of settlement which the provider considers to be reasonable;

  • The vires for this provision must be regarded at least as questionable. There is no obvious power in Legal Aid Sentencing and Punishment of Offenders Act 2012, the enabling statute, to permit regulations to provide – as here – for another individual’s, the offeror’s, confidentiality to be overridden. (Few offerors are likely, in practice, to object: but that is a separate point.) The nearest the 2012 Act comes to considering privilege in the context of legal aid is in s 28(1) which provides as follows:

(1)The fact that services provided for an individual are or could be provided under arrangements made for the purposes of this Part does not affect—

… (b) any privilege arising out of that relationship, or…

except to the extent that regulations provide otherwise.

  • The privilege here is that which arises out of the client relationship, that is legal professional privilege, and cannot be said to apply to any privilege arising from the without prejudice rule which is derived from the relationship of the parties to the courts. (No provision is made in regulations to override the privilege which attaches to any advice given by a lawyer to his/her client on the offers etc referred to in reg 40(4)(a), should the Legal Aid Agency as to have information as to that advice.)

Production of without prejudice correspondence at the FDR appointment

  • Requirement of FPR 2010 r 9.17 (under the heading: ‘The FDR [Financial Dispute Resolution] appointment’ is as follows as to the requirement that the parties ‘file’ (ie in effect, produce to the court) any negotiation correspondence for the purposes of the FDR appointment. This requirement is imposed without a nod (save at the end of s-s (4)) to the existence of any privilege in the documents, which would exist if they are part of settlement negotiations and contain admissions against interest (which is inevitable if serious proposals are put forward).

(3) Not less than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.

(4) Paragraph (3) includes any offers, proposals or responses made wholly or partly without prejudice(GL), but paragraph (3) does not make any material admissible as evidence if, but for that paragraph, it would not be admissible.

(5) At the conclusion of the FDR appointment, any documents filed under paragraph (3), and any filed documents referring to them, must, at the request of the party who filed them, be returned to that party and not retained on the court file.

Warnings

Some of this, esp towards teh end, is in note form

= text to be provided

E&OE to 15 September 2015

© David Burrows, Burgundy, 15 September 2015

[1] At 4.## etseq

[2] Per eg Bristol Courts Family Conciliation Service (1978)

[3] [1993] 1 FLR 932, CA

[4] See Ch # for discussion of this terminology and of FPR 2010 Part 3

[5] The Rule of Law Tom Bingham, Penguin (2010), at Chapter 8 (entitled ‘Dispute Resolution’) at p 86

[6] [2009] UKHL 16

[7] [2009] EWHC 2844 (Ch); and see further 4’##

[8] The point is affirmed also in Avonwick Holdings Ltd v Webinvest Ltd & anor [2014] EWHC 3322 (Ch) where David Richards J held: ‘In common with Arnold J in Williams v Hull [2009] EWHC 2844 (Ch) at [18] … I take the view that the correct approach is that stated by Lord Mance [in Bradford & Bingley Plc v Rashid [2006] UKHL 37, [2006] 1 WLR 2066]. Marking a document as “without prejudice” is a strong indication that there is a genuine dispute and a genuine attempt to settle the dispute, but it is not conclusive.’

[9] Discussed at #.##

[10] [1976] Fam 93, see #.##

[11] Privilege and a fair trial is considered at #.##

[12] [1980] AC 521 at 541

[13] [2006] UKHL 37,  [2006] 1 WLR 2066

[14] [2007] EWCA Civ 502, [2007] 1 WLR 2443

[15] [2013] UKEAT 0448-13-0511, HHJ Hand QC (sitting alone)

[16] For disclosure see 2.## etseq

[17] 4.##

[18] 4.##

[19] See further at #.##

[20] See eg [Blair case]

[21] Tomlin v Standard Telephones [1969] 1 WLR 1378

[22] 4.##

[23] 4.##

[24] 4.##

[25] [2008] EWHC (Comm) 1729 Beatson J; considered fully in Practice of Family Law: evidence and procedure, David Burrows, Jordans 2012 at #.##

[26] [2007] EWHC Ch 625

[27] Considered fully ay 5.##

[28]  [1969] 1 WLR 1378

[29] This may not matter; but better advice would be to refuse to answer that question till disclosure is complete

[30] [1999] EWCA Civ 3027, [2000] 1 WLR 2436

[31] [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807

[32] It is also of relevance to mediators and is touched upon at 4.##

[33] [1969] 1 WLR 1378

[34] [2007] EWHC Ch 625

[35] Considered further at #.##

[36] [2009] EWHC 2844 (Ch) Arnold J. The judge discusses the impropriety heading fully at [45]–[55]

[37] Robert Walker LJ in Unilever explained at 4.##

[38] The questions of a mediator and a judge in FDR providing evidence and corroboration is dealt with respectively at #.## and #.##

[39] Brown v Rice and anor [2007] EWHC Ch 625, Stuart Isaacs QC sitting as a deputy judge of the High Court; and see #.##

STILL NO NEWS ON INTERMEDIARIES: C-Day – 12

Questions of Family Procedure Rules Committee on vulnerable parties and children

In https://dbfamilylaw.wordpress.com/2015/08/23/protecting-vulnerable-parties-and-witnesses-in-court/ the question arose of how intermediaries are to be funded in the intended new family proceedings world, that is once the amendment rules for children and vulnerable individuals come into force. At about that time I raised questions with Family Procedure Rules Committee about this and related matters.

Only a very short time remains – till 25 September – for consultation on the rules; yet important questions remain at large. Clive Buckley is a civil servant and secretary of FPRC. There follows a reminder email to him sent today, and concerning a few questions already raised.

Dear Clive

It is 12 working days since you received my email of 23 August 2015; and to which you have replied by promising me a full reply (time for reply not specified). My email was as follows:

Family Procedure Rules Committee – 15 June 2015 item 4 – ‘vulnerable’ parties etc

Please provide replies to the following:

  I am preparing a response to the consultation on the ‘vulnerable’ individuals draft regs. Am I allowed to see all the papers considered by FPRC on item 4 of the 15 June 2015 meeting (eg the draft rule references in the minutes cannot be to Amendment X). If yes, may I have copies by or before 1 September 2015 next?

  In fixing ‘a consultation period of two full months’ agreed by FPRC, was the person whoever actually fixed 25 September aware that even on a temporal basis this was not ‘two full months’ (ie it was around seven weeks;); and that the government’s own ‘consultation principles’ (https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/255180/Consultation-Principles-Oct-2013.pdf) suggest that for a ‘fair consultation’ August should be left out of account (and see (see further R (ota Mosley) v London Borough of Haringey [2014] UKSC 56). 18 days only is therefore allowed for this consultation  (or 3.5 weeks); not ‘two full months’).

  Was any funding exercise done by FPRC: including (1) for parties (ie private expenditure) and (2) for the tax-payer? If so, may I have a copy of this, please?

  What contact over the draft rules has Family Procedure Rules Committee had formally with LAA; and what are their views on the draft, if known, at this stage?

  My response to last years’ VWCWG ‘interim report’ was not ever acknowledged. Does anyone at MoJ even know if it was (a) received and (b) considered by anyone; and (3) considered in any way by FPRC?


I mean no offence at all, but – given the short time-scale and intervention of summer holidays, I do ask for a reply by noon on 1 September 2015, after which I shall consider whether I need to raise a FoI request.

It is twelve working days till a response to the Amendment X consultation is due. Can you tell me now, at least when the reply already promised by you will be provided; and can you say now, that I can expect a full three weeks (15 working days) from the date I receive a reply to my 23 August email?

I have not heard from Mike Horton, even with an acknowledgement of my copy email to him. I have sent this email also to him. He is one of only 3/4 of FPRC members who is not a civil servant (ie not paid by MoJ, as eg all judges are), I hope he and those 3/4 members, at least, might share my concern at how the intermediary part of the scheme is expected to be funded? I would hope the Family Division judges would also be concerned. I see the President chaired that meeting; and that Rider LJ presented the then draft rules to it. The President at least has been vociferous in court on questions of funding; though the record of Ryder LJ as Ryder J (in ota JG) has been a little more unreliable.

Perhaps you could let me know now whether my reply to the VWCWG was received (final bullet point above), and whether it was considered at any time by FPRC? I shall assume, if you prefer, that silentio non consentire (your silence does not consent). If that is right and other responses were not considered by the FPRC, the Amendment X rule-making process itself may be in danger.

There is not much time for reply; but answers to these questions – or some of them – may surely make any consultation responses more helpful.

Watch this space for any response from Ministry of Justice.