Parole Board, Mr Warboys (now Radford) and the open justice principle

A rule, a fundamental right and the legality of its restriction


In R (DSD and NBV) v Parole Board and Secretary of State for Justice [2018] EWHC 694 (Admin) (28 March 2018: IP Radford/Warboys) two rape victims of Mr Warboys (with the Mayor of London who was said not to have standing (ie sufficient interest)) claimed a review of the Parole Board’s decision to release Mr Warboys (the name by which he is still mostly known). The court upheld the victims’ applications: first, that the board were irrational in failing to consider evidence wider than that presented to them; and, secondly, that a provision preventing publication of material was not within the powers of the statute under which the Board’s relevant procedures ran.


For the family lawyer this raises administrative law issues. For example, did the fostering panel in the recent Re T (A Child) [2018] EWCA Civ 650 ask enough, or the right, questions about the grandmother proposed for fostering; and, if not, did their considerations have the quality of decision-making involved in the Parole Board case? And as to vires: the Family Procedure Rules 2010 are full of examples where, as the Divisional Court held of the Parole Board, rules are not clearly backed by substantive legislation to justify the rule change. That is the rules, as in the case of the Parole Board, are outside any powers granted by legislation. The open justice principle – in issue in the Parole Board case – is an example. The principle is paid scant regard by family proceedings rule-makers. They see those prosecuted for domestic abuse in open court. On the same facts it is said that the same person – perhaps proved to be an abuser in a criminal court – is still dealt with in secret by family courts (FPR 2010 r 27.10). The fundamental right in Parole Board seems to be of no account to family proceedings rule-makers.


Parole Board: the case


On 13 March 2009, John Warboys (now Radford) was convicted of 19 serious sexual offences committed between October 2006 and February 2008 involving twelve victims. He was sentenced to an indeterminate sentence for public protection specifying a minimum term of imprisonment of eight years (being the equivalent of a determinate sentence of 16 years), less time spent on remand. That period expired on 14 February 2016, and Mr Radford/Warboys became eligible to be released on parole, at the direction of the Parole Board (ie if it was satisfied that it was no longer necessary for the protection of the public for him to be held in prison).


On 26th December 2017, the Parole Board determined that prison was no longer necessary in Mr Radford’s case and directed his release. Three sets of judicial review proceedings were instituted: by the Mayor of London: he was held to have no standing to make the application. The second set of proceedings was brought by two victims of Mr Warboys DSD and NBV, against the Parole Board and the Secretary of State for Justice. Mr Radford was joined in that application as an interested party. NBV is one of the 12 victims who gave evidence at Mr Radford’s criminal trial; DSD was not one of the 12, although she had obtained a settlement in civil proceedings brought against him. The third claim was by News Group Newspapers Ltd against the Parole Board and the Secretary of State for Justice.


Parole Board Rules 2016 (‘Rule 25’) r 25 states:


(1) Information about proceedings under these Rules and the names of the persons concerned in the proceedings must not be made public.

(2) A contravention of paragraph (1) is actionable as breach of statutory duty by any person who suffers loss or damage as a result.


The public law issues: ‘irrationality’ and vires of the rule


On the challenges of DSD and NBV the court dealt with two issues:


  • Was the Board’s failure to undertake further inquiry as to the background to, and other alleged offending of, Mr Radford’s application rational; and
  • Was Rule 25 within the powers of the Secretary of State in making the 2016 Rules; and in particular to what extent might it be expected that information about parole Board proceedings should be made public?


On the ‘irrationality’ challenge – ‘this rare sub-category of judicial review’ ([116]) – the court made it clear how high was the mountain the applicants had to climb. After full testing of the law, the court concluded that the question for the Board should have been to ask if there was other material they should have considered; and if so was it irrational for the Board not to have undertaken further inquiry. Yes it was, said the court: ‘[159] … in the particular circumstances of this case, the Parole Board ought to have carried out, or have instigated the carrying out of, further inquiry.’


Open justice


The court agreed that Rule 25 issue and that of open justice went together. Release of information therefore turned on the extent to which it could be said that the Board ‘exercises the judicial powers of the state’ ([171]; Pickering v Liverpool Daily Post and Echo Newspapers Plc [1991] 2 AC 370; R (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 at [46] approved by Kennedy v The Charity Commission [2014] UKSC 20 (at [115]).


Yes, they said. Fundamental rights are in play. ‘[171] … Adjudications upon matters of individual liberty are paradigm examples of the exercise of a judicial function.’ The ‘open justice principle retains its vigour’, even in situations where national security may demand hearing be heard part in private ([174]). And fundamental rights being in play, if statute was to derogate from such principles it must do so in unambiguous terms (the ‘principle of legality’): see for example Lord Hoffman in R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33, [2000] 2 AC 115, [1999] 3 WLR 328 at 131:


… Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. 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.


The rights of victims to challenge arose not from any common law right for a person to be given reasons ([183]), but from the fact that the release decision is irrational, and separately there is a rule which prevents the Board from giving them information about the proceedings ([184]). The restriction ‘is unnecessary and/or disproportionate cannot [therefore] be regarded as authorised by the enabling statute as a matter of necessary implication’ ([198]). Rule 25 ‘clearly goes too far’. Criminal Justice Act 2003 s 239(5) (which confers functions on the Parole Board in respect of life prisoners) which is the basis for the rule does not enable to the court to imply a provision which restricts fundamental rights:


[198] Accordingly, the question is whether the Rule goes too far, because it imposes a prohibition which is not the minimum necessary to protect [the rights of private individuals]. Unlike Simms (ibid 130D-G), this is not a case where it is possible, in applying the principle of legality, to construe Rule 25 in a manner which preserves fundamental rights. In line with the approach in [R v Secretary of State for the Home Department exp Daly [2001] UKHL 26, [2001] AC 532], we have concluded that a provision which is unnecessary and/or disproportionate cannot be regarded as authorised by the enabling statute as a matter of necessary implication.


Need for further inquiry and to permit open justice


The court upheld the challenge by DSD and NBV to the rationality of the decision of the Parole Board directing the release of Mr Radford on the basis that it should have undertaken further inquiry into the circumstances of his offending and, in particular, the extent to which the limited way in which he has described his offending may undermine his overall credibility and reliability. That is so even in relation to the offences of which he was convicted, let alone any other offending. Mr Radford’s release direction is quashed and Mr Radford’s case remitted to the Parole Board for fresh determination before a differently constituted panel.


The court left it to the Board to decide the procedure appropriate to the redetermination of Mr Radford’s case, taking into account the terms of its judgment, including the observations we have made regarding the need to undertake further inquiry; but suggested a serving or retired judge might chair the panel. The court also upheld the challenge to Rule 25(1). It would be for the Secretary of State for Justice to decide how Rule 25 should be reformulated.


Finally, the court felt that there are no obvious reasons why the open justice principle should not apply to the Parole Board to provide information on matters of public concern to the very group of individuals who have concerns, namely the public itself.

‘Guidance note: first directions appointments’ – Pirrie and Newbury

A guide to financial relief procedure


Resolution’s ‘Guidance note: first directions appointments’, 2018 by James Pirrie and Andrew Newbury  provides welcome help from two well-respected lawyers. Practitioners will find it of enormous benefit. It sets out in tabular form the steps a party must take from issue of financial provision proceedings to final order, consent order and appeal (though not, I think, an application to set aside (FPR 2010 r 9.9A)). The remainder – around two-thirds of the guidance – then deals with the various aspects of procedure which confronts a party. It follows from this that the guide provides much more than help only on FDAs.


The table sets out only the rules, no law. At first I was surprised at that; but then I realised that the majority of the substantive law provisions on which this procedural aspect of family law relies are almost entirely common law. For example, disclosure, to which I will return, is – except in the case of non-party orders for production (FPR 2010 r 21.2) – entirely a creature of common law. By contrast costs are governed by Senior Courts Act 1981 s 51(1) and ‘rules of court’ (mostly CPR 1998).


I say this to stress that a rule – or set of rules, such as FPR 2010 – cannot make law. They can only regulate substantive law: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said:


‘[27] Neither the Rules of the Supreme Court nor the Civil Procedure Rules can change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2) [1965] Ch 1210.’


Disclosure and common law


This is important if rules in relation to disclosure are looked at. This is a critical area of procedure and practice for those involved in financial remedy proceedings. The common law is probably best summarised by the underlying duty set out by the House of Lords in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813. In that case there was a consent order, without issue of proceedings. The House of Lords were very clear: the wife in Livesey received an outright transfer to her of the couple’s former matrimonial home. She was under a duty to the court and to her former husband to tell everyone of her intended marriage. The original consent order was set aside. The same rules apply in relation to mediation and to settlement following mediation.


However, if Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814 and FPR 2010 Pt 9 is followed, family law is in the odd position that if a case does not settle then notionally at least the duty to disclose is suddenly suspended as if asleep. It does not emerge from that sleep till questionnaires are answered. Of this the Court of Appeal said in Imerman – and without considering duties to disclose where a case is settled, or in mediation:


[33]     In relation to these rules we make two general observations. First, that the rules do not provide for any disclosure of information or disclosure (discovery) of documents until a spouse has lodged his Form E. Second, and even more significantly, that the process of disclosure (discovery) of documents both then and thereafter is closely regulated by the rules and, in accordance with the rules, by the court. Although there is a general and continuing duty to make full disclosure of all relevant information, there is, despite the duty imposed on the court by s 25 of the 1973 Act, no duty of general disclosure (discovery) of documents of the kind required in ordinary civil proceedings by the CPR…


If the argument went any higher, I wonder if the Supreme Court would agree that Livesey v Jenkins and common law rules could be overridden by a court rule. This goes also for FPR 2010 r 9.19(4) (control of disclosure by the court: that rule, it could be said, is plainly ultra vires what their lordships said in Livesey).


FPR 2010 Pt 21 is very light indeed on disclosure (three rules against 23 in CPR 1998: for example family lawyers must go to CPR 1998 r 31.11 for rules (and the law?) on the ‘implied undertaking’ (so essential to Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565)). Those few rules are helpfully touched on by the guide. It is to privilege that they refer in r 21.3 (and a reference to West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm) Beatson J might be useful where a spouse wishes to allege that documents are privileged (see recently Kerman v Akhmedova [2018] EWCA Civ 307)). Non-party disclosure is regulated almost entirely by statute (eg Senior Courts Act 1981 s 34(2) and Bankers Book Evidence Act 1879). Failing that a witness summons to require a person to bring documents to court can be issued (FPR 2010 r 22.2(1)(b)).


I concluded my ‘Imerman information five years on’ in Family Law Journal [2015] Fam Law 976, and mostly of documents unlawfully obtained from one spouse by another – or, as in Lifely v Lifely [2008] EWCA Civ 904, by one brother should perhaps disclosed his diary with the truth there recorded – that all is not as the Court of Appeal says, if it is looked at alongside Livesey v Jenkins and Lifely:


… it can perhaps be said that successful mediation, the common law and MCA 1973, s 25 (as explained by Lord Bandon in Livesey v Jenkins) all dictate standard disclosure at as early a stage as reasonably possible. Rules and a court form [ie Form E] cannot override this requirement. Beyond that, once a duty to disclose has arisen the further from the crystallisation of that duty to the date when relevant information is discovered unlawfully, the greater the likelihood that the court will order that relevant information be admitted at trail.

Breach of a court order in family proceedings

Prison for breach of a family courts order: how long?


In two recent cases derived from family relationships, High Court judges have sent to prison respectively a defendant wife (for forgery and lying: Ms Henderson);  and a respondent husband (for failing to comply with a matrimonial finance court order: Mr Hart). But in what type of case and for how long should a person be sent to prison?


On 8 September 2011 HHJ Carr in Sheffield County court sent Mr Zuk to prison for nine months for failure to pay a lump sum of £10,000 required of him by order one year earlier (Zuk v Zuk [2012] EWCA Civ 1871, [2013] 2 FLR 1466). On his appeal – heard, eventually, by the Court of Appeal – it was said firmly that the judge had no power to do this. Six weeks was the limit. How did the judge make this ‘grave mistake’ asked the appeal judge, Thorpe LJ?


[13] … It seems to me that it is easy to infer that she thought she was exercising powers under section 14 of the Contempt of Court Act 1981, which imposes a maximum term of 24 months for imprisonment pursuant to an order for committal. So it was an understandable mistake, but it was a very grave mistake, since it had had the consequence of wrongfully depriving Mr Zuk of his liberty for a period of at least three months and probably more. I say probably more, because this was not the only error that has emerged from our post-mortem on the proceedings in the Sheffield court.


In a recent Transparency Project blog their ‘reporting watch team’ comments on a committal for failure to comply with a court order, as follows:


Whether the breach is of an order about a child or an order about money the approach is the same – the breach has to be proved beyond reasonable doubt just like in a criminal court, and the sentence that is imposed will be partly by way of punishment and partly in order to secure compliance. The longest sentence that can be imposed is two years (the max is 6 weeks where the committal is for non-payment of debt under a judgment summons).


Contempt of court in family proceedings


There are five main categories of contempt (ie not doing something an order says you must do, or doing something an order or a law says you must not do):


  • Failure to pay sums of money (as with Mr Zuk) where the maximum penalty is 6 weeks (depending on the procedure chosen by the person seeking the cash). The term ‘judgment summons’ is explained below;
  • Failure to comply with a court order to do an act, or not to do something, such as failure to hand over a child, failure to comply with orders to provide documents or otherwise deliberately not to follow court orders, where the maximum penalty is two years;
  • Publicising information about proceedings (eg about children or about private matters from family proceedings): penalty up to two years;
  • Failure to comply with a domestic abuse (‘non-molestation’) order where, in addition to contempt proceedings in the family courts, prosecution is by the police or following a power of arrest attached by the court
  • Contempt in the face of the court and interference with the due administration of justice (eg perhaps, calling judges ‘enemies of the people’, or discouraging your opponent from pursuing their case) (see eg post at ICLR).


Judgment summons procedure


The Zuk case was under the judgment summons procedure which is still available in family courts where money is said not to have been paid. It relates back to Debtors Act 1869 s 5 which, as Thorpe LJ explained, was passed ‘in the Victorian era for the abolition of imprisonment for debt and for other purposes. Its plain intention was to restrict the circumstances in which a person could be imprisoned for non-payment of a debt.’ In 1992 Waite J (in R v Luton Magistrates’ Courts ex parte Sullivan [1992] 2 FLR 196) was plainly concerned at how crude was this procedure:


‘The power under s 76 for magistrates to issue a writ committing a spouse to prison for non-payment of maintenance in their domestic jurisdiction is a power of extreme severity. Indeed, it might be argued that the existence of such a power in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.’


To protect a little against the crudeness of s 5, as Thorpe LJ pointed out, the section further says:


(2) Subject to the provisions herein-after mentioned, and to the prescribed rules, any court may commit to prison for a term not exceeding six weeks, or until payment of the sum due, any person who makes default in payment of any debt or instalment of any debt due from him in pursuance of any order or judgment of that or any other competent court.


Thus imprisonment is only possible where the court considers ‘that the person making default either has or has had since the date of the order or judgment the means to pay the sum in respect of which he has made default, and has refused or neglected, or refuses or neglects’ to pay what is owed by court order. It is akin to a contempt provision: a person has the money but deliberately decides to flout the court order.


By contrast with these debt provisions, the provisions under which Ms Henderson and Mr Hart were sent to prison were because they flouted court orders (in both cases) and, in Ms Henderson’s case, because she forged a signature in breach of the rules for statements of truth (Civil Procedure Rules 1998 r 18.18, because this was civil proceedings: the family courts’ equivalent is Family Procedure Rules 2010 r 17.6).


Importance of procedure and correct prison sentence


And what of the extra time Mr Zuk spent in prison? Thorpe LJ concluded his judgement:


[29] The end result seems to me that everybody suffers. The wife, who was the successful applicant in the ancillary relief proceedings, has been kept out of her money, and, however lacking in merit [Mr Zuk] may be in the context of the ancillary relief proceedings, he has been unjustly imprisoned for a period which looks to me [around four-and-a-half months]. It is a sad story, and the moral of it is that, where in the county court steps are taken to enforce ancillary relief payments by an application to commit under the Debtors Act, both those representing the creditor and the judge must take the greatest care to ensure that all the safeguards provided by statute are duly observed.


If a civil court – like the Family Court – is going to send someone to prison, it must make sure all the right procedural steps are taken before it does so; that if someone is entitled to legal aid they are given it by the court (which means checking criminal legal aid regulations: yes, really, as explained here); and that, if a contempt or Debtors Act 1869 charge, are proved then the right period of time in prison is ordered.


Many people think by the time Charles Dickens died imprisonment for debt was consigned to history. In family courts it lives on in the Debtors Act 1869 s 5 judgment summons procedure; and lawyers still use it – despite the fact that time in prison butters no parsnips for their clients.


On how to pay and indemnify your ex-spouse for mortgage repayments

A tale of a Southampton consent order


Under the title CH v WH [2017] EWHC 2379 (Fam), Mostyn J’s of the approval of a consent order appears as a form of judgment with neutral citation and in the BAILII reports. (CH v WH emerges also as an example of use of the High Court’s inherent powers in President’s guidance: jurisdiction of the Family Court: allocation of cases within the family court to High Court judge level and transfer of cases from the Family Court to the High Court 28 February 2018:  at para 15). It is not a judgment. Mostyn J was doing the administrative job which district judges do up and down the country every day. It is an administrative task, without any judicial disposal involved (nor argument to be heard). Add to which: one of the parties chose their judge (‘[2] The matter has been referred to me by the wife’s solicitors…] – against all the normal rules of law; and with Mostyn J telling the parties to accept the form of order he had, himself, drafted (no conventional self-denying ordinance there).


The question concerned whether an agreement by one spouse to discharge mortgage payments on a former matrimonial home covenanted to be paid by both spouses should be dealt with by undertaking given to the court. This has generally been regarded as the appropriate course. Or, as the omnibus orders decree, should the payments be by order? Mostyn J does not recite the approved ‘orders’ but I take them to be those set out at the end of this post.


In considering which course should be followed, Mostyn J seems to take no account of statutory imperative, Supreme Court/House of Lords and Court of Appeal jurisprudence, but relied on the drafting of his own committee. The district judges’ who had considered the original draft order maintained that it should be based on conventional wording  and an undertaking.


Mostyn J rewrote their decisions (it was not an appeal) with the words:


[10] In my judgment, these sterile, technical objections to orders in these terms must cease. They have caused needless delay and have no doubt increased costs and caused other inconvenience.

[11] That concludes this judgment, which the President has seen and which he approves.


Professional negligence and a non-release or variation order


All this may appear Jesuitical, a pointless semantic exercise beloved of idle lawyers; and so it may be – until….


What happens when a person with a Mostyn J ‘order’ – as in the draft below – wants to vary it? Variation or an order can only be done under Matrimonial Causes Act 1973 (MCA 1973) s 31; but orders requiring payment of a mortgage are not covered – as far as I can see – under s 31(2) (as I explain below). If Mrs Birch (of Birch v Birch (below)) had agreed to a Mostyn J omnibus order she would have been stuck if she then wanted to vary it (if my reading of s 31(2) is correct); as against seeking release from it as the Supreme Court permitted her. And perhaps another Mrs Birch’s lawyers, who had been taken in by the omnibus orders, might have to refer the matter to their insurers.


Of the need to follow statutory provisions (ie MCA 1973) Mostyn J says:


[8] It is elementary that the court cannot make orders outside its powers: see Livesey v Jenkins [1985] AC 424 at 444G, where Lord Brandon stated that there was nothing in section 23 or 24 of the Matrimonial Causes Act 1973 which directly empowered the court to make the order requiring the wife, following the transfer of the matrimonial home to her by the husband, to be solely responsible for the mortgage and all other outgoings on it. Such a provision, he said, should have been incorporated in undertakings….


However, Mostyn J continued (with no hint of irony: see his reference to ‘sterile, technical objections’ cited in [10] above and to ‘conveyancing counsel’ below):


[8] …. [MCA 1973 s 30] gives the court power when making a property adjustment order to direct that the matter be referred to one of the conveyancing counsel of the court for him to settle a proper instrument to be executed by all necessary parties. While this provision is now virtually obsolete it cannot be disputed that the instrument in question could contain terms which furnish all necessary indemnities and the obligations to pay instalments in relation to a mortgage secured on the property. So I do not agree that the provision in question is outside the “parameters” of [MCA 1973].

[9] But that is not my main reason for disagreeing with the approach taken by the district judges in Southampton. My main reason is set out in the report of the Financial Remedies Working Group, set out above, with which, unsurprisingly, I agree…


So, says Mostyn J the district judges in Southampton can go outside MCA 1973 by use of their ability to use the inherent jurisdiction of the High Court (he does not consider Wicks below) conferred by Matrimonial and Family Proceedings Act 1984 s 31e(1)(a). They could just go along with what the Working Group had recommended. Quoting his own view in the group Mostyn J said:


‘This [the court’s power to direct one party to make such payments and/or indemnify the other against non-payment] is an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873. It was the very relief initially ordered in Salomon v A Salomon and Co Ltd [1897] AC 22 (but which was later set aside by the House of Lords as offending the rule about the separate legal personality of companies). As to mortgage and other outgoings in my view the power to order A to make payment to B plainly includes the power to order A to make payments on behalf of B.  The greater includes the lesser. It was necessary to spell out the power to order the payment of mortgage and other outgoings in Part IV FLA 1996 proceedings (see s 40(1)(a)) because the wider direct power does not exist in those proceedings. It would be anomalous if the power to order payment of outgoings only existed in Part 4 but not FR proceedings. It is necessary in my view for the court to have these powers if only to cover the position if someone is not prepared to give the necessary undertakings or is not participating in the proceedings.’


Of course, what could be simpler and less sterile/technical than that? Don’t worry about what Lord Bridge says (quoted above) in Livesey v Jenkins:


[9] …. The basic mistake made by the judges in Southampton is to assume that their powers are confined to the four corners of the Matrimonial Causes Act. The Family Court has all the powers of the High Court. The High Court unquestionably has the power, as part of its equitable jurisdiction, to order an indemnity. If awarded, that represents a legal right in favour of the person so indemnified. The court can award an injunction in support of a legal right. To order someone who has been ordered to indemnify the other party in respect of a mortgage to use his or her best endeavours to keep up the payments on that mortgage is of the nature of an injunction in support of a legal right. In my opinion, this provision is squarely within the power of the High Court to order, and is therefore within the power of the Family Court.


And now this wheeze is incorporated as part – it is said – of the High Court’s inherent jurisdiction and mentioned specifically in 28 February’s PGJFC para 15(b).


Supreme Court and Birch


So what does statute and recent Supreme Court jurisprudence say (quite apart from the clear opinion of Lord Bridge in Livesey’s case (cited by Mostyn J above))? In Birch v Birch [2017] UKSC 53, [2017] 2 FLR 1031 the Supreme Court was concerned with whether or not a person could vary an undertaking which Mostyn J says can now be framed as an order. The Court said they could in the narrow circumstances described there and mostly on ground similar to those set out in MCA 1973 s 31 (not a section considered by Mostyn J).


MCA 1973 s 31 is critical to all this. It deals with variation of orders (ie not undertakings). So what orders can be varied? MCA 1973 31(2) – which I set out in full (other than pension orders) – defines which orders precisely can be varied:


(2) This section applies to the following orders, that is to say –

(a)any order for maintenance pending suit and any interim order for maintenance;

(b)any periodical payments order;

(c)any secured periodical payments order;

(d)any order made by virtue of section 23(3)(c) or 27(7)(b) above (provision for payment of a lump sum by instalments);

(dd) [pension orders];

(e)any order for a settlement of property under section 24(1)(b) or for a variation of settlement under section 24(1)(c) or (d) above, being an order made on or after the grant of a decree of judicial separation;

(f)any order made under section 24A(1) above for the sale of property.

(g) [pension sharing orders].


With the greatest respect to Mostyn J it is not clear to me which of these provisions would have enabled Mrs Birch to seek to vary an order made under his scheme; but from which the Supreme Court said she could seek release as an undertaking – and, probably, by seeking replacement as another undertaking.


In Birch Lord Wilson (with whom the majority in the Supreme Court agreed) said of an undertaking in an order:


[5] All three lower courts adopted without demur the wife’s description of her application as being to “vary” her undertaking. But her description betrays a conceptual confusion which it is as well to dispel as this early stage. An undertaking is a solemn promise which a litigant volunteers to the court. A court has no power to impose any variation of the terms of a voluntary promise. A litigant who wishes to cease to be bound by her (or his) undertaking should apply for “release” from it (or “discharge” of it); and often she will accompany her application for release with an offer of a further undertaking in different terms. The court may decide to accept the further undertaking and, in the light of it, to grant the application for release….


The Supreme Court held that the wife in Birch could apply to the court to seek release from her undertaking. Whether she should be permitted to do so was a matter with which the lower court must deal. Her application was to be dealt with as equivalent to a MCA 1973 s 24A(1) variation of sale order within the terms of MCA 1973 s 31(7). Undertakings can be dealt with in this way. Different statutory provisions apply for orders.


High Court’s inherent jurisdiction: Wicks


Finally, what of the Family Court’s powers outside the powers granted by MCA 1973? In Wicks v Wicks [1998] 1 FLR 470, [1998] 3 WLR 277 (a case very much still live: see eg Cobb J’s judgment in WS v HS (appeal – sale of matrimonial home) [2018] EWFC 11 (28 February 2018) a couple of days ago) Ward LJ (at 490) explained the inherent jurisdiction of the High Court as:


In 1970 Sir Jack Jacob described the inherent jurisdiction of the court as ‘a virile and viable doctrine which in the very nature of things is bound to be claimed by the superior courts of law as an indispensable adjunct to all their powers’ ((1970) 23 Current Legal Problems 52). But in my judgment the inherent jurisdiction, valuable and beneficial though it is in its proper procedural sphere in relation to litigation, cannot be invoked by the court to arrogate to itself the power to give substantive relief, particularly so in an area so much controlled by statute.


In Wicks Ward LJ (with whom Peter Gibson LJ and Sir John Vinelott agreed) distinguished between procedural steps, where the court retained inherent jurisdiction, and ‘the power to give substantive relief’. In an area so set about by statutory powers creation of further substantive relief – such as to order discharge of mortgage repayments by order not in MCA 1973 – was not available to the courts: ‘The reality here is that the wife is seeking the enforcement of rights which MCA 1973 does not grant her…. She wants the money to buy a new home in her name, under her control, for her sole enjoyment to the exclusion of the husband. If the substantive law laid down by the MCA 1973 does not permit that to happen, then the court has no inherent jurisdiction to do that which Parliament has not granted it power to do….’


Thus Ward LJ: the court has no inherent power to do that which Parliament has not granted. A route via ‘an equitable remedy originally vested in the Court of Chancery which was subsumed into the High Court by the Supreme Court of Judicature Act 1873’ is not, it is submitted, an obvious grant of such a power by Parliament.


Draft orders in question


50 Procure release from mortgage and to indemnify

The [applicant]/[respondent] shall use [his]/[her] best endeavours to procure the release of the [respondent]/[applicant] from any liability under the mortgage [as in definition above] [by [insert date]]/[on or before completion of the transfer provided for by paragraph [insert] / [within [insert] days of the date of this order], and shall in any event indemnify the [applicant]/[respondent] against all such liability.


51 Payment of mortgage and outgoings on property

The [applicant]/[respondent] shall discharge as and when each payment becomes due, be solely responsible for and in any event indemnify the [respondent]/[applicant] against:

  1. all interest and capital repayments due in respect of the mortgage [as in definition above];
  2. all [reasonable] sums due in respect of council tax, utilities (including but not limited to gas, electricity, water and telephone accounts), and buildings and contents insurance premiums in respect of [the family home] and/or [insert property/ies as in definition above]; and
  3. etc

The payments shall start on [insert date] and shall end on the first to occur of:

  1. [insert date];
  2. the sale of the family home;
  • the [respondent’s]/[applicant’s] remarriage;
  1. the death of either party;
  2. the retirement of the [applicant]/[respondent]; or
  3. a court order discharging this obligation.

[as appropriate].

Financial relief disclosure: a miscellany of meanings

‘Self-help’ documents: when in law does the duty arise?


In ‘Just help yourself: self-help and disclosure in family proceedings’ in the Resolution Review Byron James describes the financial relief disclosure law, as he sees it, after Imerman v Tchenguiz and ors [2010] EWCA Civ 908, [2011] Fam 116, [2010] 2 FLR 814 as ‘still playing out’. He stresses that what he calls ‘the first proper post-Imerman guidance to professionals is in L v K (Freezing Orders: Principles and Safeguards) [2013] UKHC 1735 (Fam), [2014] Fam 35 (also called UL v BK) by Mostyn J. He concludes that ‘practitioners ought to adhere’ to what Mostyn J says (‘a decision from a puisne judge’); ‘or else ignore it at their peril’.


I am afraid I cannot agree. I dealt with this subject some time ago. ‘Illegality’ (as Mostyn J calls it) of a self-help party must be judged against the date or time at which the common law says disclosure takes place, a date which is not clear in civil proceedings. Thus if a party (like Mrs Livesey (Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813 or Mr Sharland (Sharland v Sharland [2015] UKSC 60, [2015] 2 FLR 1367)) has not disclosed material information where their case is settled, their non-disclosure may lead to an order or agreement between parties to be set aside. It may be fraud (as in Sharland). And, of course, on disclosure, L v K was not a ‘decision’. In issue was a freezing order for the wife and her lack of frankness in obtaining information about the husband. The Imerman comments of Mostyn J were not part of that decision.


Disclosure at common law


The common law gives no clear guidance as to when a duty of disclosure formally arises (save in ancillary relief cases as in Imerman (below)). Until the logically prior question – when does disclosure arise? – is answered, it is not possible to say whether a document has been ‘obtained illegally’ as, for example, explained by the Bar Council’s ‘Evidence obtained illegally in civil and family proceedings’ (last reviewed May 2016).


In Imerman the Court of Appeal said categorically: when Mrs Imerman received documents from Mr Imerman’s computer she was not entitled to them:


[140]   … The rules required him only to give full disclosure under Form E. Only thereafter might he be ordered to disclose further documents should the court think it necessary. Accordingly, since the rules specifically exclude any such obligation, it is not possible, it is simply unacceptable, to countenance Mrs Imerman taking the law into her own hands so as to obtain a premature advantage.


Well yes, this may be the rule in ancillary relief proceedings, where there are proceedings (ie someone has filed Form A). But what happens where parties are negotiating a settlement? Proceedings, if a case is to be settled, will not be in prospect.


Duty of disclosure: but when, according to the law?…


Imerman is a judgment of the highest authority (Lord Neuberger MR, Munby and Elias LJJ). But the ‘law’ on disclosure is not clear. At what stage does a duty of disclosure arise at common law?


  • Despite what Imerman says, there is a duty of disclosure when parties are engaged in settlement negotiations (or mediation), if an agreement is reached and a consent order is submitted to the court? Suppose then a party (A) finds information (like brother A below) which shows facts on which a settlement was made may be false (like Mrs Sharland). Must they be ignored by A’s solicitor and a fraud be permitted because the solicitor may not (per L v K [56](3), set out below) look at the documents? That is not the law, as I shall explain.


  • Imerman: the duty to disclose, which subsisted during settlement negotiations, is suspended between settlement attempts until after the process of inquiry is carried out after the first directions appointment. At least, this seems to be the logic of the position in Imerman.


  • And what of B’s private documents which should have been disclosed prior to the order (consent or contested)? These may be the stuff of a set aside application. This is precisely the material of which Lifely was made; but on L v K principles they should have been ignored, or at least not read and advised upon by A’s lawyers.


In both (1) and (3) above – perhaps even in (2) – where a lawyer who refuses to read documents tempts a negligence claim (as explained in conclusion). This stark assertion arises if application – based on any of those documents – should have been made to set aside the agreement (in (1)) and the order (in (3)).


Lifely and documents ‘to be disclosed’


To understand the status and admissibility of unlawfully obtained documents, it is necessary first to go to Lifely v Lifely [2008] EWCA Civ 904 (also Court of Appeal, considered in passing in Imerman at [176]). Lifely concerned two sons (A and B) of a farmer who, during his lifetime, had agreed distribution of milk quota shares. After the father’s death they failed to agree what they had agreed with their father, and went to the Chancery Division for an answer. The chancery judge agreed with B. A year later A found a diary (a personal diary: how private is that?) belonging to B. In it he found notes by B which recorded what he, A, had originally said to the judge was agreed. He showed the diary to his solicitors, who advised him to appeal.


The court gave him permission out of time and permitted the diary to be produced (Ladd v Marshall [1954] 1 WLR 1489). The appeal was allowed, the earlier order was set aside and the case remitted for rehearing with the diary in evidence before the court below. But if Imerman ‘principles’ (as defined by Mostyn J) had been followed, the brother’s diary could not have been read by Burges Salmon (A’s solicitors) and an appeal could not have got off the ground. Justice would have been denied.


In Vernon v Bosley (No 2) [1999] QB 18 the defendant’s leading counsel (A) received form an undisclosed source, and read, confidential documents (medical reports: highly private) about Mr Vernon (B). These disclosed information which, said the Court of Appeal, should have been disclosed. It was relevant evidence which had become available between the High Court hearing and the appeal hearing. This is the common law, said Stuart Smith LJ. The principle is now confirmed by Civil Procedure Rules 1998 r 31.11.


In these cases the documents were private. They belonged to someone who had not authorised their being read. They were obtained and read unlawfully (in this sense) and in breach of B’s rights under European Convention 1950 Art 8. At [32] Ward LJ said in Lifely: ‘I am prepared to accept… that there is at least a good arguable claim for misuse of private information which is protected by Article 8 of the ECHR [ie all A’s in the above examples were in the wrong]. However, the matter does not end there’. Ward LJ explained how he conducted the Art 6 – Art 8 balancing exercise required of judges to decide issues of this type. He concluded, as he must if Art 6 rights are engaged, that these trump Art 8 (paras [33] to [39]).


Imerman principles’: date of duty of disclosure


In L v K Mostyn J set out what he called ‘Imerman principles’. These are his deductions from the case, not what is stated the Imerman case itself. These ‘principles’ are obiter. They are made without reference to such cases as Lifely and Vernon. And as cases like those confirm, a fair trial requires that the court has access to all relevant material, which mostly means documents (such as diaries and further relevant information about a party). Therefore parties to a case must tell each other what documents or other information they have (such as Mrs Livesey’s plans to remarry).


The full text of what Mostyn J says on this subject (at [56] of L v K) is in Byron James’s article at Review p 23. The main aspects of it are:


‘(1) … It is simply and categorically unlawful for [A] to breach her husband’s privacy by furtively copying his documents whether they exist in hard copy or electronically….’.

‘(3) If [A] supplies such documents to her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the wife and must return them, and all copies (both hard and soft), to [B’s] (if he has one). [B’s] solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the wife’s claim, pursuant to [B’s] duty of full and frank disclosure.

‘(4) If [B] does not have a solicitor [A’s] solicitor must retain the documents, unread, and in sealed files, and must approach the court for directions.


So when does a duty of disclosure arise? This is the question which is central to all of this. Plainly before there is any final agreement – if a case settles – a duty to disclose arises. If parties settle before they issue proceedings there is a duty to disclose (as Mrs Livesey should have done) before any settlement. There will not be an Imerman Form E moment because there will not ever be a Form E if a case is settled.


In Imerman/L v K terms there is a pause between mediation and other attempts to settle. On this analysis a discovery no-man’s land develops. It continues – a strange silence between the party trenches – until such time as questionnaires are exchanged. This is not, I suspect, what the common law intends (though I accept that is what the Court of Appeal say in Arbili v Arbili [2015] EWCA Civ 542 and in Imerman).


Once the duty of disclosure has arisen then I doubt there will be many lawyers who would say that a client who – like brother A in Lifely – finds a private document or other material which should have been disclosed must give it back unread. In the case of (1) and (3) above – unlike Byron James – I would not follow L v K at all; and in a case where that Imerman period applies (between Form A and Forms E questionnaires) I would say L v K provides only obiter guidance.


I am sure my insurers would want me to look at the documents. My insurers will say that it can be assumed that, as a practising solicitor, I know – or I am deemed to know – what legal professional privilege and confidentiality are, even including a Cox v Railton document (ie excluded from privilege because covered by the ‘iniquity exemption’; which might apply here if fraud is involved; R v Cox and Railton (1884) 14 QBD 153); and that if privilege applies (as the Bar Council’s guidance says) then I must reflect as to whether I can continue to act.