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….

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