A child’s understanding to instruct a solicitor direct

20160924_142217‘Sufficient understanding and intelligence’

 

In Re Z (A Child – Care Proceedings – Separate Representation) [2018] EWFC B57 (judgment: 29 June 2018), HHJ Bellamy sat in the Family Court and dealt with the wish of a 14 year old boy (Z) to instruct his own solicitor and to part company from his children’s guardian. The published judgment is ‘an abbreviated copy of my judgment’ which is ‘written for a very intelligent 14 year old’. It is the judgment of a circuit judge, so it may not be of direct citable authority. That is a subject for another day. For the present I shall treat a judgment from HHJ Bellamy as from a source on which any children lawyer is entitled to give respect; and to rely on as a precedent in a suitable case.

 

The judgement turns on FPR 2010 r 16.29(2) (text below) which raises the question of a child having the ability to instruct a solicitor direct. That principle is rooted in Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224, where – of a child’s understanding and how it should be respected – Lord Scarman said (at [1986] 1 AC 112, 186 and [1986] 1 FLR 224, 251): ‘The underlying principle of the law … is that parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision…’. ‘Child’ here means a child under 18 of ‘sufficient understanding’ to instruct the child’s own solicitor (ie a ‘mature child’ or Gillick-competent).

 

I have not seen the other version of HHJ Bellamy’s judgment. In the version available, he deliberately leaves out most references to the law on which he bases his decision. It is not even referred to in foot-notes, which is a pity (the whole point of a foot note is to provide an occasional aside, so as not to interrupt the flow of the main text). I think I spotted a few of the references, but by no means all.

 

Z: seeing the judge and his understanding

 

Z was the subject of care proceedings after a rocky period in his life which included allegations of sexual abuse by his mother (some manufactured, but probably not all: the final hearing of the application was to be in August) and his grandmother whom he later went to live with. At the time of the judgment he was living again with his grand-parents. He knew exactly what he wanted to achieve – a return home, or to live with his grand-parents; but not with foster parents or in a therapeutic placement (as the local authority were likely to want). He had been referred to a psychiatrist who had filed an extensive report. He saw the judge who described the meeting as follows:

 

‘[27] Through his guardian and solicitor, Z asked to see me. With the agreement of all parties, I saw Z on 8th June in the presence of his guardian and solicitor. The meeting, though informal in style, took place in a court room and was recorded. The guardian also took a full note of our conversation. That note has been circulated to all parties. In our meeting, Z repeated many of the points made to the experts and to his solicitor and guardian.

[28] In conversation, Z comes across as extremely articulate and highly intelligent. He was neither emotional nor unduly emotive….’

 

Under a heading, ‘The law’ the judge sets out the majority of the duties of a children’s guardian (at [30]) and of Z’s solicitor (at [31]). At [32] the judge sets out ‘guidance given by senior judges’ on how to decide whether someone like Z ‘has sufficient understanding to instruct his solicitor directly’.

 

He summarises the decision he is asked to take:

 

‘[33] If the solicitor decides that the child does not have sufficient understanding to instruct his solicitor direct, the court can be asked to review that decision. The judge will come to his own independent decision after taking into account the points just made.’

 

The rule which deals with the judge’s decision and which I shall take to represent the law, is at FPR 2010 r 16.29(2) and (3):

 

(2) If a solicitor appointed as mentioned in paragraph (1) [ie appointed by the court in CA 1989 Pt 4 proceedings] considers, having taken into account the matters referred to in paragraph (3), that the child –

(a) wishes to give instructions which conflict with those of the children’s guardian; and

(b) is able, having regard to the child’s understanding, to give such instructions on the child’s own behalf,

the solicitor must conduct the proceedings in accordance with instructions received from the child.

(3) The matters the solicitor must take into account for the purposes of paragraph (2) are –

(a) the views of the children’s guardian; and

(b) any direction given by the court to the children’s guardian concerning the part to be taken by the children’s guardian in the proceedings.

 

There is no reference in FPR 2010 r 16.29 to a referral back to the court as happened in Re Z. It is not possible to tell whether HHJ Bellamy was referred to Re CT below. Probably not: the case seems to have fallen out of use, but is still good law, as far as I know. However, the way he dealt with Z’s application seems to fit in with what Waite LJ said. A difference is that Re Z was CA 1989 Part 4 proceedings; whereas CT was Part 2, for a Section 8 order (ie for CT to go back to live with her natural family from her adoptive family). I think that is a distinction without a difference.

 

A child’s age and understanding and court proceedings

 

There are five separate areas where the issue of a child’s understanding in relation to children proceedings arises. The rules are opaque, even for a lawyer. The law and rules can only be found in different primary and delegated legislation. Lawyers get it wrong: see eg Black LJ as she was then in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027 where – I think – she misunderstood the child representation law. Understandably she described it as ‘of complexity’ (see fuller explanation in Children’s Views and Evidence David Burrows (Bloomsbury, 2017)  at 6.88 and 6.116). If a children lawyer of Lady Black’s calibre can get the law wrong (as I think she did) and find it ‘of complexity’, what chances have the rest of us; and especially how can children expect to understand what is going on?

 

The five separate categories of the procedural jungle which is this part of children law are:

 

  • Where a child wants to take her own proceedings (as eg did CT in Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, sub nom Re T (A Minor) (Child: Representation) [1994] Fam 49, [1993] 3 WLR 602, CA: Sir Thomas Bingham MR Staughton and Waite LJ) considered below. The starting point is CA 1989 s 10(8): application where a child must have permission from the court if the court is ‘satisfied that s/he has sufficient understanding’; though FPR 2010 r 16.6(3) says, as explained in CT (above), that the law mostly leaves the decision to the child’s solicitor).
  • A child wants to have a say – be heard by the court – in proceedings to which she is subject, eg that her of his parents are taking proceedings about where they are to live (see eg Mabon v Mabon [2005] EWCA Civ 634, [2005] Fam 366, [2005] 2 FLR 1011; and see FPR 2010 r 16.4).
  • A mature child is a party to CA 1989 Pt 4 (eg care) proceedings (as they will be) the child almost always has a solicitor (CA 1989 s 41(3)). If the child wants to part company with the child’s children’s guardian because, say, the child has different views from the guardian as to the outcome of the proceedings (as with Z) FPR 2010 r 16.29(2)(a) says the solicitor ‘must conduct the proceedings’ as instructed by the child. It is the solicitor who ‘considers’ and ‘has regard’ to the child’s understanding (see Re CT again).
  • A child subject to a care order (like W in Re W (above)) where she or he wants to apply to discharge the order or for some other order in the care proceedings: at that stage the child has a solicitor so should not need a children’s guardian (perhaps; and see CA 1989 s 41(3)). For the recovery order proceedings in Re W, they are not specified proceedings anyway so a guardian should not have been appointed anyway.
  • Assessment of a child’s views in child abduction proceedings; and whether this should be done after the child (perhaps even as young as seven: Re D (above)) with the child as a party and with the child’s own solicitor.

 

Sufficient understanding to give instructions to a solicitor

 

Assessment of a child’s understanding, and therefore of their ability to take part in proceedings, is not easy. Solicitors are not trained for the job. The legal aid scheme is unlikely to permit wall-to-wall opinion evidence for each mature child (though a child with particular vulnerability will be appropriate for assessment: see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47 (28 June 2018), Cobb J). But what does the law and the rules say about assessment of understanding by the lawyers?

 

Whatever solicitors may think, or courts wish to order, the first assessment in categories (1)-(4) is the job of the solicitor; though as Waite LJ explained in Re CT, is the final arbiter is still the court. Waite LJ explained that the normal way for a child to proceed in civil proceedings would be by a guardian or next friend (now CPR 1998 r 21.2); but that FPR 1991 r 9.2A (as it then was; now r 16.6) had introduced an exception to that principle in certain specific instances. He defined these as follows for CA 1989 Part 2 applications (ie categories (1) and (2)):

 

‘(1)Where the court has given leave at the outset for a minor to begin or defend proceedings without a next friend or guardian ad litem. Such leave is only to be granted if the court considers that ‘the minor concerned has sufficient understanding to participate as a party in the proceedings . . . without a next friend or guardian ad litem’ (r 9.2A(1)(a), (6) [now r 16.6(3)(a) and (6)]).

(2)Where a minor has a next friend or guardian ad litem in proceedings that are already on foot and applies successfully for leave to prosecute or defend the remaining stages of the proceedings without a next friend or guardian ad litem. Leave for that purpose is only to be granted if the court reaches the same conclusion as in case (1) (r 9.2A(4),(6) [r 16.6(5)]).

(3)Where a solicitor has accepted instructions from the minor to act in the proceedings, and where that solicitor ‘considers that the minor is able, having regard to his understanding, to give instructions in relation to the proceedings’ (r 9.2A(1)(b)(i),(ii) [r 16.6(3)(b)]).’

 

So said Waite LJ: who was to assess the child’s ‘understanding’: the court or the solicitor? He continued (at 288) of judging CT’s understanding:

 

‘I have stressed that there has not so far been any suggestion that Mr Burrows [yes, me] is or may be incorrect in the view that he has formed, for the purpose of r 9.2A(1)(b)(i), that CT is able, having regard to her understanding, to give instructions in relation to the proceedings. It seems to me, however, that it would be unhelpful to the judge – and for that matter to other judges who may find themselves confronted with a similar situation – simply to leave the matter there. A conclusion has to be reached on the question (to which I have already referred in passing) of who is to be the judge of the minor’s ability to give instructions?’

 

The court’s ‘ultimate right to decide’

 

He concluded that the court should have the ‘ultimate right to decide’; but, said Sir Thomas Bingham MR, ‘the solicitor’s judgment is to be respected and given great weight’ (at 291). In practice, therefore, the court is only likely to become involved as final arbiter if the solicitor has doubts or if another party, on good grounds, questions the solicitor’s discharge of her or his duties in representation of a child.

 

This is the criterion – solicitor’s view of the child’s understanding, first; and arbitrement by the court is the solicitor is unsure of his or her view, or someone challenges – which applies in Part 2 proceedings (Re CT). The similarity between r 16.3(3)(b) (Part 2 proceedings) and r 16.29(2)(a) (Part 4 proceedings) on the question of understanding is close. Re CT provides the common law approach to how the understanding should be tested by the courts, and in what circumstances, in Part 2 and Part 4 proceedings (categories (1)-(4) in the list above).

 

Better still, the whole area of child representation procedure and its rules should respect children. They should have a procedural law which from a highly experienced children judge down to the moderately intelligent child (with us lawyers in between) – yes, we should have law which all of us can understand.

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The mediator and suspicions of harm to a child

20160419_174504

‘Sharing’ of information about a mature child

 

There is a poor alignment between what the law explained by House of Lords says to doctors and others on confidentiality for mature children – children of ‘age and understanding’: per Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – and what government guidance (eg Working Together 2015) says, especially to local authority staff (social workers, teachers etc). The law as explained by House of Lords in Gillick is still good law; and it trumps the guidance. If that is right then some of the guidance is wrong.

 

As an example, imagine that a child Angela, aged 15, tells her teacher Mrs Josselin (J) of things that are going on at home. She talks of excessive chastisement and other punishment that her step-father Steven Martin (M) has inflicted on her. The teacher listens, says little; but makes full notes of what she has been told immediately after Angela has spoken to her. Angela asks her teacher to tell no one; and especially to say nothing to her mother or M.

 

J speaks to her head-teacher. They feel they are bound by the guidance in Working Together 2018, and its stress on ‘sharing information’ (by which it means passing on information) such as:

 

‘24. Practitioners should be proactive in sharing information as early as possible to help identify, assess and respond to risks or concerns about the safety and welfare of children, whether this is when problems are first emerging, or where a child is already known to local authority children’s social care (e.g. they are being supported as a child in need or have a child protection plan). Practitioners should be alert to sharing important information about any adults with whom that child has contact, which may impact the child’s safety or welfare.’

 

The school has had a number of concerns about Angela over the previous 18 months before. The head tells a social worker, and the social worker tells the police. The local authority looks into what has happened. Angela refuses to be interviewed further about what she told J; but J’s notes are passed to the local authority. No-one tells the parents what Angela has told the teacher and which sparked off the most recent enquiry.

 

Care proceedings follow; and the question of how Angela’s information in J’s notes is to be disclosed to the court, will be an issue – as, on that subject, will be the conflict in the law between the confidence in the information between Angela and the teacher. These questions are for another day.

 

Mediation and Angela: code of practice

 

Suppose the same information from Angela was passed on to a mediator, Jim Dixon (D). What are the mediator’s duties: (1) under any guidance or code of practice; and (2) in law (if different)? A mediator’s code of practice, from the Family Mediation Council (Code of Practice for Family Mediators May 2018) includes the following in relation to children:

 

‘5.2.2 Where it appears necessary so that a specific allegation that a child has suffered significant harm may be properly investigated, or where the Mediator suspects that a child is suffering or is likely to suffer significant harm, the Mediator must ensure that the appropriate agency or authority is notified. Wherever possible, the Mediator should make such a notification after consultation with his or her PPC.’

 

What follows deals only with children of age and understanding (Gillick-competent). For them and their confidentiality (or European Convention 1950 Art 8 rights to respect for their private life) para 5.2.2 comes in a passage headed ‘Confidentiality’. Uncontroversially, the previous paragraph (5.2.1) says (subject to 5.2.2):

 

‘… The Mediator must not disclose any information about, or obtained in the course of an Information and Assessment Meeting or during a mediation process to the other participant or to anyone including a court appointed officer or the court, without the express consent of each Participant, an order of the court or where the law imposes an overriding obligation of disclosure on Mediators to do so.’

 

The mediation process is entirely confidential, and only the parties (including any child) can waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J). Unlike legal professional privilege, confidentiality can be overridden if a higher interest demands (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109, [1988] UKHL 6, [1987] WLR 776, (Spycatcher case) per Lord Goff at 281).

 

Law and the Gillick-competent child

 

So what says the law (as opposed to guidance or practice codes) about the position of the mediator. The starting point for advice for D (the mediator) is that for a girl of her age – in the absence of mental incapacity (see eg Re RD (Deprivation or Restriction of Liberty) [2018] EWFC 47, Cobb J) – she is entitled to have her confidentiality respected (Gillick (above)). Gillick, after all, was specifically about confidentiality (a doctor’s position in relation to confidences, as to which, for modern guidance to doctors, see GMC Guidance on confidentiality ). What is said by House of Lords is a higher version of the law than government guidance.

 

The ‘guidance’ in Working Together 2018, is a lesser version of the law than Gillick. To the extent that it, and the mediation guide, promotes ‘sharing’ where a mature child’s confidences should be respected it is, surely, wrong?

Court documents: Part 4 – documents for media and non-parties in family proceedings

20160419_173301Hearing documents for non-parties

 

Finally this series applies the law, as so far defined, to non-parties and family proceedings. Part 1 considered who may attend family courts (in addition to the parties, their representatives etc). Part 2 deals with the open court principle and its importance for documents for non-parties. Part 3 dealt with the recent case on this subject especially Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’). This Part looks at how the law, as explained in the first three Parts, applies to documents and to non-parties in family proceedings: first, how it applies to non-parties who attend private family hearings; or, secondly, to those who may want to know more about such cases afterwards (eg journalists, lawyers, academics or family members – even perhaps a child involved, as the child gets older).

 

In this series, documents are categorised as:

 

  • Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules and any order of the court.
  • Trial documents – Documents prepared for the judge and at a court hearing.

 

Family Procedure Rules 2010 (FPR 2010) does not deal with the subject of release of documents beyond r 29.12 which permits inspection (ie photocopying on payment of an appropriate fee) of documents with permission of the court. This is likely to be dealt with at common law and in the inherent jurisdiction of the court as defined by Hamblen LJ in Cape Intermediate v Dring.

 

Family proceedings courts

 

As stressed in Part 1 there are three categories of family courts hearing to which the question of release of documents to non-parties applies. Each is likely to involve application of the law of the law in different ways, though exactly how has not been clearly defined. The categories of hearing are:

 

  • Open court hearings (eg divorce, committal proceedings, domestic abuse cases under Family Law Act 1996 Part 4). Open justice principles apply to these hearings and the same rules are likely to apply as explained in Cape Intermediate v Dring.
  • Hearings in private where media representatives and other can attend (r 27.11(2)(f)-(g)): so long as anonymity is preserved the Cape Intermediate rules could apply.
  • Other hearings in private (see eg Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 56).

 

Part 3 sets out the documents which non-parties can expect to see in civil – ie almost invariably, open court – proceedings. What should non-parties expect to see in private family hearings? Do the same rules, subject to privacy/publication restrictions, apply for non-parties who attend family courts under r 27.11(2)(f)-(g)?

 

Release of documents in private family court hearings

 

Privacy and publication restrictions in family proceedings centre on two strands in law:

 

  • The common law position as summarised in Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 and succeeding case law; and
  • Statutory contempt proceedings in relation to certain types of case, notably children cases, in Administration of Justice Act 1960 s 12(1), namely:

‘12 Publication of information relating to proceedings in private

(1) The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except in the [case of children proceedings]…’

 

Any restriction must be judged against the common law open justice principle. Because the parties do not want material released to non-parties does not mean that the court should not give permission for inspection, whether at common law or under r 29.12. Munby J emphasised this in Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416 when he said:

 

‘[44] The fact that both parties join in making the application is not, of course, any reason why the application should succeed. If anything, quite the contrary – see the observation of Sir Christopher Staughton in Ex parte P (1998) The Times, 31 March, quoted with approval by Lord Woolf MR in R v Legal Aid Board ex parte Kaim Todner [1999] QB 966, [1998] 3 WLR 925…: “When both sides agreed that information should be kept from the public that was when the court had to be most vigilant.”’

 

What is quite clear is that the law permits release to the media and others of documents in Family Law Act 1996 Pt 4 (non-molestation and occupation orders) as explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 whatever FPR 2010 r 29.12 might say: a rule cannot alter the common law (British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628).

 

Documents for release under the court’s inherent jurisdiction

 

In Cape Intermediate v Dring (as further explained in Part 3) Hamblen LJ defines the documents which the court has an inherent jurisdiction to consider for release to non-parties (ie beyond its powers in CPR 1998 r 5.4C). These are the following:

 

  • Skeleton arguments and ‘other advocates documents provided’ to assist the court ([92]).
  • Witness statements: under CPR 1998 r 32.13 non-parties are entitled to inspect witness statements. There is no equivalent rule in FPR 2010; but r 32.13 may be said to summarise the position at common law.
  • Experts reports: the same applies as for expert’s reports ([96]); but –
  • Documents read or treated as read in court – CPR 1998 r 31.22 ([101]).
  • Other documents to meet the open justice principle ([110]).

 

As explained in Part 3 the cases considered there are likely to be authority for a prohibition on release of the court bundle in full, and of exhibits to statements and reports (even where such exhibits are referred to).

 

Why should material be released?

 

If the criterion for exercise of its jurisdiction by the family courts is to enable those who attend court to understand the proceedings then, subject to non-parties’ compliance with privacy restrictions (eg Administration of Justice Act 1960 s 12(1)), the question must be: why should not the non-parties have access to documents to enable them to understand what is happening. Release of the Cape Intermediate v Dring list of types of document must, in most family cases, go a long way to telling a non-party what is going on; or telling a non-party looking into the case, who has also read any judgement (anonymised in family cases), what happened.

 

This will enable courts in most cases to pay full regard to the words of Lord Woolf MR (italicised above), and to what was said by Toulson LJ in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (cited by Hamblen LJ at [85]):

 

‘[83] The courts have recognised that the practice of receiving evidence without it being read in open court potentially has the side effect of making the proceedings less intelligible to the press and the public. This calls for counter measures. In SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498 Lord Bingham referred to the need to give appropriate weight both to efficiency and to openness of justice as the court’s practice develops. He observed that public access to documents referred to in open court might be necessary. In my view the time has come for the courts to acknowledge that in some cases it is indeed necessary.’

 

If the common law permits release to non-parties of documents for civil proceedings, the family courts will need to answer, surely, why they should not do the same for non-parties who are permitted to attend private court hearings? (The case has surely been made for Family Law Act 1996 Pt 4 cases (see Clibbery v Allan (above)?) Perhaps the same applies, for those non-parties who, for good reason (per Guardian News), want to see material listed by Hamblen LJ after a hearing.

Court documents: Part 3 – what does the common law say?

20170407_185106Hearing documents and Cape Intermediate v Dring

 

Part 1 of this series looked at the types of family courts hearings and who may attend. Part 2 deals with the open court principle and its importance, generally, in looking at what documents may be released to non-parties. This Part deals with the case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’) and its significance in relation to the documents concerned and their release to non-parties – but in open court civil proceedings. Finally, Part 4 will suggest how the law, as explained in the first three Parts, applies to non-parties who attend private family hearings or who may want to know more about such cases afterwards (eg journalists, lawyers, academics or family members – even perhaps a child involved, as the child gets older).

 

In this series, documents are categorised as:

 

  • Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules.
  • Trial documents – Documents prepared for the judge and at a court hearing.

 

Cape Intermediate v Dring: the case

 

The respondent to the appeal in Cape Intermediate v Dring (above) were a group (Asbestos Victims Support Group: Mr Dring was their representative) who provided help and support to asbestos victims, and who acted also as a pressure group to raise awareness of asbestos dangers. Cape Intermediate (CIH) had been involved in litigation taken by mesothelioma victims. The litigation settled before the end of a six-week trial. A very substantial volume of documentation was involved. Following settlement ASVG applied under Civil Procedure Rules 1998 (CPR 1998) r 5.4C for release to them of what amounted to a substantial proportion of the trial bundles. The Master granted the substantial part of their application. CIH appealed. The appeal was transferred direct to the full Court of Appeal (CPR 1998 r 52.23) because of the issues involved, instead of being dealt with by a single judge.

 

CPR 1998 apply to this case. These rules, and therefore the case, do not formally apply to family proceedings, save where – as in this case – the hearing was in the Court of Appeal. However, so far as the case and CPR 1998 define the common law, they do apply to family proceedings. (All appeals to the Court of Appeal in family cases are in open court (Norman v Norman [2017] EWCA Civ 49, [2017] 1 WLR 2523); and parties must provide the media with copies of their skeleton arguments, anonymised in children cases (CPR 1998 PD52C para 33)).

 

There are no rules for inspection of documents in family proceedings under FPR 2010 save FPR 2010 r 29.12, which says that ‘no document… filed or lodged in court shall be open to inspection by any person without the permission of the court’, and no such document can be taken by or issued to any person save with permission. In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1, Mostyn J treated this as meaning that the press are not allowed to see documents (at [13]). This is not what the words say, even if the common law permitted what Mostyn J says which Guardian News (as now explained by Cape Intermediate v Dring) suggests is not the case. Indeed, the wording of r 29.12(1) seems to be consistent with the inherent jurisdiction role of the court explained by Guardian News (which should have been available to Mostyn J, but is not cited by him) and since by Cape Intermediate v Dring: that with permission documents are open to inspection. And those two cases, whatever the rules may say, define the common law. This must now be explained.

 

The common law position after Cape Intermediate v Dring

 

The lode-star for Hamblin LJ is GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 (also cited in Guardian News). He reviewed the case extensively at [61]-[68]; and drew four main conclusions from it:

 

  • That ‘the court has an inherent jurisdiction to allow non-parties to obtain copies of skeleton arguments/written submissions used in lieu of oral submissions… open justice requires that the public have the same opportunity to understand the issues in a case as they would have had if the openings had been given orally’ (at [69]).
  • The court’s inherent jurisdiction does not permit non-parties to have access to trial documents generally, even if they have been referred to in witness statements, in skeleton arguments, or in court, or have been read by the judge (see [70]).
  • There is no inherent jurisdiction to allow non-party access to trial documents merely because they are referred to in eg a skeleton argument or witness statement (GIO; [88]; and explaining at [99] why NAB v Serco Ltd & Anor [2014] EWHC 1225 (QB), Bean J was wrongly decided to the extent that it extended the range of documents to be released).
  • GIO ‘emphasises the importance of the principle of open justice and recognised that the forthcoming CPR might provide for a wider right of access of non-parties to documents’; though, said Hamblin LJ ‘the scheme and provisions of the most relevant provisions of the rules are materially similar under the CPR and the RSC’ ([71]).

 

Once a document has been ‘read or used in court’ then any ‘confidence in the document’ goes (Buxton LJ in Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253 at [9]; CPR 1998 r 31.22(1)(a)). And so, concluded Hamblin LJ:

 

‘[84] The trilogy of cases, SmithKline Beecham, Barings [Barings v Coopers & Lybrand [2000] 1 WLR 2353, CA, also earlier cited by the judge] and Lilly Icos, support a broad approach to what documents are to be treated as read by the court for the purpose of CPR 31.22(1)(a) and involve an assumption that the judge will have read documents to which he has been specifically referred. As is noted in Lilly Icos at [8]this only applies to documents “to which the judge has been specifically alerted, whether by reference in a skeleton argument or by mention in the “reading guide” with which judges are now provided”.’

 

Release of documents: inherent jurisdiction

 

Hamblin LJ concluded this passage of the judgement by helpfully summarising the range of documents which might be covered by the inherent jurisdiction. These documents may be those which are released by the court to a person attending a family trial in private under r 27.11(2) and subject to the constraints in civil proceedings of Administration of Justice Act 1960 s 12(1)(a). The following can be released to non-parties for inspection:

 

  • Skeleton arguments and ‘other advocates documents provided’ to assist the court ([92]).
  • Witness statements: under CPR 1998 r 32.13 non-parties are entitled to inspect witness statements. (There is no equivalent rule in FPR 2010.)
  • Experts reports: the same applies as for expert’s reports ([96]); but –
  • Exhibits to statements/reportsGIO is authority that the court has no inherent jurisdiction to authorise inspection of exhibits ([97]); and this applies to non-inspection where they are referred to ([100]).
  • Documents read or treated as read in court – CPR 1998 r 31.22 ([101]).
  • Other documents to meet the open justice principle ([110]).

 

Of these the last two require further comment. Documents treated as read in modern litigation will be numerous ([105]-[106]); but these must be clearly defined and must not leave non-parties in ‘a markedly better position than they would have been when’ everything was read out or otherwise orally dealt with in court ([107]). Thus said Hamblen LJ:

 

‘[108] Based on current civil court practices, I would accordingly confine the jurisdiction to documents which are read out in open court; documents which the judge is invited to read in open court; documents which the judge is specifically invited to read outside court, and documents which it is clear or stated that the judge has read. These are all documents which are likely to have been read out in open court had the trial been conducted orally.’

 

Further documents

 

Finally, there may still be further documents which may need to be read to comply with the open justice principle. Thus, said Hamblen LJ, referring back to Guardian News, the court has an inherent jurisdiction to decide how the open justice principle applies’ ([111]). For himself, Hamblen LJ defined the open justice principle and in the context of hearing documents:

 

‘[103] The principle of open justice requires seeking to place non-parties in an equivalent position to that which they would have been in had the trial been conducted orally, as trials used to be. It is in relation to the reading of documents that the tension between efficient and open justice is most acute. It is increasingly common for judges to be invited to read documents for themselves. That may arise during the course of the hearing itself, or it may involve pre-reading, overnight reading or post-hearing reading.’

 

The final question for this series is to ask whether these clearly stated, mostly common law, principles apply to family proceedings where someone wants documents released, because they are planning to attend court or because they want to see material following a hearing.

Court documents: Part 2 – the open justice principle

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Hearing documents and the open court principle

 

Part 1 of this series has looked at who may attend family courts and what types of family court hearings. This Part deals with the question of: why should documents be made available for those who attend any court? Part 3 will deal with the important case of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’); will analyse the documents concerned; and looks at how these may be available for release to non-parties. Finally, Part 4 will apply the law, as explained in the first three Parts, specifically to documents in family proceedings and to non-parties who may attend private hearings; or who may want to see documents later (eg journalists, lawyers, academics or family members – even perhaps a child as the child gets older).

 

In this series documents are categorised as:

 

  • Court documents – Documents ‘from the court records’ (as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules.
  • Trial documents – Documents prepared for the judge and at a court hearing.

 

The background to Cape Intermediate v Dring and a review of much that it decided will be considered in Part 3. In approaching his determination of the appeal as to whether and if so what documents from civil court proceedings might be released to non-parties, Hamblen LJ relied extensively on the case law underpinning the open court principle. Since this approach to open justice may to be central to any argument in family proceedings that documents be released this Part will deal with its context in court proceedings.

 

He started by setting out some ‘Well known statements of the principle’ (at [27]) and emphasising that ‘the common law has long recognised the importance of the constitutional principle of open justice’. He drew attention in particular:

 

[27] … Well known statements of the principle and its rationale include:

(1) Lord Shaw in Scott v Scott [1913] AC 417 at 477 (citing Jeremy Bentham):

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

(2) Lord Diplock in Home Office v Harman [1983] AC 280 at p303:

“…the reason for the rule is to discipline the judiciary – to keep the judges themselves up to the mark – the form that it takes [is] that justice is to be administered in open court where anyone present may listen to and report what was said”.

 

He concluded his short introduction to the open justice principle by reference (at [28]) to the central modern case to this subject: R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618. If there were any doubt on the subject, Cape Intermediate v Dring confirms that the Guardian v Westminster case applies equally to documents in criminal as to civil proceedings. He recalls Toulson LJ’s words where he spoke of the open justice principle:

 

‘[28] … Being “at the heart of our system of justice and vital to the rule of law” and [that he] explained how it enables the rule of law to be policed through “the transparency of the legal process”. He stressed at [2] that it is “not only the individual judge who is open to scrutiny but the process of justice”. It ensures that “judges are accountable in the performance of their judicial duties” and “maintains public confidence in the impartial administration of justice by ensuring that judicial hearings are subject to public scrutiny”.’

 

Later in his judgment Hamblen LJ returns to Guardian v Westminster, when he considered the inherent jurisdiction of the court to order release of documents. He explained that the case concerned a Guardian journalist’s request of a magistrate, refused by her, that he be permitted to read documents the court had read in an extradition case:

 

‘[85] …. [The Guardian] contended that these were documents that would have been pre-read, that it was not possible to understand the full case against those extradited without seeing the documents, and that they were needed for the journalistic purpose of stimulating informed debate about matters of public interest. The [Guardian’s] application was granted on appeal….’

 

Hamblen LJ pointed out that Toulson LJ had said much on the subject of the open justice, such as (quoted by Hamblen LJ at [85]):

 

‘[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state.’

 

Release of hearing documents

 

Toulson LJ and Hamblen LJ both draw particular attention to a series of cases when it comes to open justice and release of documents; and especially the need for the court to make sure that anyone attending a case is not kept from understanding what is happening because increasingly courts rely on written information read privately by the judge (eg witness statements and expert reports, skeleton arguments and position statements).

 

Toulson LJ referred to a line of authority starting with Lord Scarman – ‘a thinker ahead of his time’ – in Home Office v Harman [1983] 1 AC 280 at 316 on why ‘justice should be done openly’ (at [33]). Lord Scarman said:

 

‘Reasonable expedition is, of course, a duty of the judge [said Lord Scarman]. 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 referred with approval, at 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 …’

 

Toulson LJ continued (at [34]) by reference to Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498:

 

‘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 of judges pre-reading documents (including witness statements) out of court, have become much more common. These means 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.… 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….’

 

Lord Bingham concluded with the point which, 20 years later, the rules have still not clearly answered (though Hamblen LJ has gone a long way to doing so). He continued:

 

‘… Public access to documents referred to in open court (but not in fact read aloud and comprehensibly 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.’

 

Part 3 will consider what was said in Cape Intermediate v Dring and especially in the light of the above open justice considerations.

Court documents: Part 1 – to make sense of family court proceedings

20170407_161350Attendance at private family hearings

 

If you are interested in a family case – say, as journalist, an academic, a lawyer, a friend or relation of one of the parties or a lay person who takes an interest in law; even perhaps a mature child who wants to find out more about your care proceedings – you can probably get into court to listen to the case (Family Procedure Rules 2010 (FPR 2010) r 27.11(2)(f)-(g) and its accompanying practice direction, PD27A). FPR 2010 r 27.10 says all family cases (except where stated otherwise) are heard ‘in private’. That said, certain defined individuals – or non-parties – can get in to hear the case. But can you see documents after the case has been completed?

 

Documents non-parties can hope to see – for example to help them to understand the case, or learn about it afterwards – has recently been fully considered by the Court of Appeal in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795 (‘Cape Intermediate v Dring’). And in one of the main cases considered in this series, the Guardian wanted to write up a case after the hearing; and successfully – on appeal to the Court of Appeal – managed to get to see the necessary documents (R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618). The same would apply to anyone – academic, lawyer etc – who for sound reason wanted access to hearings documents. A fee for photocopying fee may be required: as Hamblen LJ said in Cape Intermediate v Dring:

 

‘[113] The court may order that copies be provided of documents which there is a right to inspect, but that will ordinarily be on the non-party undertaking to pay reasonable copying costs, consistently with CPR 31.15(c)….’

 

For the avoidance of doubt it must be stressed at the outset of this series: the same common law applies to all proceedings such as civil, criminal, family and in tribunals; but different procedural rules apply to each. Common law, of course, overrides procedural rules. Cape Intermediate v Dring was concerned with Civil Procedure Rules 1998 (CPR 1998) and civil proceedings. Family proceedings (governed by FPR 2010) may be different form CPR 1998 in terms of procedure. But the law is the same; and often that law, which governs family proceedings, is defined by CPR 1998 (see eg the ‘implied undertaking’ and CPR 1998 r 31.22 which certainly governs family proceedings).

 

Following from that, it is trite law that procedural rules regulate the law (in this case, the common law), but cannot change it (see eg British South Africa Co v Companhia de Mocambique [1893] AC 602 per Lord Herschell LC at 628). Cape Intermediate v Dring sets out the common law; and, though it applies to CPR 1998 and civil proceedings it must also apply, where appropriate, to family proceedings.

 

Attendance at a family court: common law and rules

 

If you come into one of the categories of individuals in r 27.11(2)(f)-(g), who can go observe a private family court, what can you read up about the case beforehand; or afterwards if you are otherwise legitimately interested in the case? Mostyn J says the press are entitled to see nothing (Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1) and by reference to r 29.12; but without reference to R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (to be reviewed in Part 2). As will be explained in Part 4, this is unlikely correctly to represent the law in 2018. And, of course, Mostyn J does not reflect on what is the common law which applied in Appleton, and whether r 29.12 is compliant with it.

 

If you are entitled to any documents, how do you get them; and who will send them to you? First, who can attend a family courts hearing? No one is allowed into a family court except the parties, their representatives, witnesses, ‘officers of the court’ and so on (r 27.11(2)(a)-(e)). In addition, r 27.11(2) says that for hearings in private the following may also come into court (‘court attenders’):

 

‘(f) duly accredited representatives of news gathering and reporting organisations;

(ff) duly authorised lawyers attending for journalistic, research or public legal educational purposes; and

(g) any other person whom the court permits to be present.’

 

The words in italics have been added by a further practice direction, Practice Direction 36J – Pilot Scheme: Transparency (attendance at hearings in private). This is intended to enable ‘legal bloggers’ to attend court (subject to some convoluted requirements as to their documents and credentials which ‘any other person’ need not trouble with), as the media are able to do; though it is not clear why lawyers and academics who want to attend court cannot do so under the much simpler (ie no documentary requirements) para (g). Nor is this the place to ask the power of the President of the Family Division to amend delegated legislation (a court rule) with sub-delegated legislation (a mere practice direction).

 

This Part looks at who may attend family courts, gives a couple of examples of the problems in practice, and alludes to the types of family court hearings involved. Why should documents be made available for those attending such courts? To answer this question, Part 2 looks at release of documents in the context of the open court principle. Part 3 looks at Cape Intermediate v Dring, the case; analyses the documents concerned; and looks at how these may be available for release. Finally, Part 4 will apply the law, as explained in the first three Parts, specifically to family proceedings and to those who may attend private hearings; or who may want to see documents later (eg journalists, lawyers, academics or family members – even perhaps a child as the child gets older).

 

Court documents: towards a classification

 

So what can any of these court attenders expect to see and before the hearing? This being family proceedings no one will be surprised to hear that the answer is unclear. Cape Intermediate v Dring has gone some way to explain the position in civil proceedings (which does not include family cases). One thing this note will seek to do is to explain how far the position in Cape Intermediate v Dring may affect family cases. Because civil proceedings are (mostly) in open court their rules are different.

 

The following is a classification of the categories of document concerned, which will be used in this article, and are more fully explained in Cape Intermediate v Dring as explained below:

 

  • Court documents – Documents ‘from the court records’ for which a non-party is entitled to apply as a matter of formality (CPR 1998 r 5.4C; CPR 1998 PD5A para 4.2A, and as explained in Cape Intermediate v Dring);
  • Hearing documents – Court documents for which a non-party is entitled to apply: eg to make sense of the proceedings or for a particular journalistic purpose (eg skeleton arguments, parties statements, expert reports etc).
  • Disclosed documents – Use, or other release, of documents whose production has been compelled by disclosure rules (CPR 1998 r 31.22(1)), and whose release or other use the law restricts or may prevent, in cases of breach (r 31.22(2)).
  • Trial documents – The composite set of documents prepared for the judge and at a court hearing.
  • Other material – Documents and information which a party is entitled to publish about proceedings where a case has been heard in private (see eg Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565).

 

There are three categories of family courts hearing. Each is likely to have different rules (though the law is not clear on this):

 

  • Open court hearings (eg divorce, committal proceedings, domestic abuse cases under Family Law Act 1996 Part 4). Open justice principles apply to these hearings and the same rules are likely to apply as explained in Cape Intermediate v Dring.
  • Hearings in private where media representatives and other can attend (r 27.11(2)(f)-(g)): so long as anonymity is preserved the Cape Intermediate rules could apply.
  • Other hearings in private (see eg Clibbery v Allan (above)).

 

To that list must be added those who may want to see documents after the hearing to who the principles considered here apply (eg the journalist who appealed successfully to the Court of Appeal in Guardian News; a child who later – perhaps as an adult – wants to know more about his or her care proceedings).

 

Release of documents: the problem in the real world

 

In Tickle v Council of the Borough of North Tyneside & Ors [2015] EWHC 2991, [2016] Fam Law 1011, Bodey J Louise Tickle applied to the court for permission to report the proceedings. The local authority originally opposed this, and asked for a reporting restrictions order. The mother, who had published information about the proceedings already, supported Tickle. Late in the proceedings the local authority agreed to the application which enabled the parties to come up with an order which Bodey J approved. In the event Tickle was able to have access to the court file in full. Even in civil proceedings she might not be allowed this (after Cape Intermediate v Dring at [88]) unless the court so ordered.

 

The problem of release of even hearing documents was touched on by Lucy Reed, a barrister, in a recent blog when she attended a Court of Protection:

 

‘Part of the difficulty for me as an observer was the lack of documentation, which won’t apply in quite the same way to parties. Although the press are entitled under the CoP Rules and PDs to sight of certain documents, there is no such automatic right for other observers, although I suspect if we had asked no particular objection would have been made. The hearing was made harder to follow by references to this position statement and that position statement,…’

 

Why should any documents be released? And what documents can be released anyway? These questions will be considered in Parts 2 and 3.

Litigation privilege and family proceedings after SFO v ENRC

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Litigation privilege explained: its relevance in family litigation

 

In Serious Fraud Office (SFO) v Eurasian Natural Resources Corp Ltd [2018] EWCA Civ 2006 (judgment, 5 September 2018) The Law Society intervened: it was thought the case would prove important as a review of legal advice privilege which might impact on solicitors. The Law Society’s Gazette wrote that the Society had described the decision as being ‘a boost for the principle of lawyer-client confidentiality’. It was not that. Litigation privilege was explained and affirmed; and little more.

 

Little was said on the main aspect of legal professional privilege (namely legal advice privilege (LAP)); and what was said was obiter. The case was decided on the extent to which the more modest litigation privilege (LP) applies, especially where a corporate body is involved. LP was extensively reviewed (judgment was jointly by Sir Brian Leveson P, Sir Geoffrey Voss Chancellor of the High Court and McCombe LJ). So what does the judgment mean generally and for a family lawyer?

 

To answer this question the background and facts of the case must be touched on; the meaning of legal professional privilege (LPP) explained; the meaning and extent of LP looked at, in the light of the judgment; and the contexts in which LP may impacts on family proceedings looked at.

 

Background

 

The case was an appeal from Andrews J (Director of Serious Fraud Office v Eurasian Natural Resources Corporation Ltd (ENRC) [2017] EWHC 1017 (QB), [2017] 1 WLR 4205). ENRC were anticipating some form of enforcement raid by SFO. They were carefully considering self-reporting under SFO guidelines as a result of allegations of criminality on the part of certain African companies it was seeking to acquire. ENRC set in motion extensive enquiries as to the background and mostly involving members of their own staff by, amongst others, Dechert, a firm of solicitors.

 

SFO finally decided to ‘accept ENRC for criminal investigation’: that is to pursue their enquiries further. ENRC asserted LPP (ie advice privilege and LP) in relation to documents which had arisen in their internal enquiry. SFO replied with an application, heard ultimately by Andrews J, that there be a declaration that ENRC must disclose three categories of document (at [46]: a fourth category – ‘Category 3’ – did not feature in the appeal):

 

  • The first category was notes taken by Dechert of the evidence given to them by individuals (including employees and former employees or officers of ENRC and of its subsidiary companies) when asked about the events being investigated.
  • Next (‘Category 2’) was of the ‘books and records of Forensic Risk Alliance (FRA), a firm of forensic accountants and of reviews they carried out.
  • Finally, ‘Category 4’ comprised 17 documents referred to in a letter dated 22 August 2014 sent to the SFO by a barrister’s chambers.

 

Andrews J held that none of these were covered by privilege. The Court of Appeal held that all, save a couple of emails, were covered by LP.

 

Legal professional privilege and litigation privilege

 

So what is legal professional privilege? And what is the significance of litigation privilege, its sub-branch, especially in the light of SFO v ENRC? As noted by the Court of Appeal at ([63] and [64]) the meaning of LPP was summarised by Lord Carswell in Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2004] 3 WLR 1274:

 

‘[105] … The cases establish[ed] that, so far from legal advice privilege being an outgrowth and extension of litigation privilege, legal professional privilege is a single integral privilege, whose sub-heads are legal advice privilege and litigation privilege, and that it is litigation privilege which is restricted to proceedings in a court of law in the manner which the authorities show…’

 

Although the Court of Appeal heard submissions on the subjects of both LAP and LP, they made their decision on LP alone (at 122]). Their comments on LAP ([124]-[143]) are not necessary to the decision. This centred on the view they took of the ‘dominant purpose test’ for LP in Waugh v British Railways Board [1980] AC 521 (‘Waugh’); a test which still stands. It was cited by the Court of Appeal as follows:

 

‘[103] It was common ground that the test to be adopted in relation to documents prepared for reasons which only included (but were not limited to) the conduct of litigation is that identified by the House of Lords in [Waugh].  The document over which privilege was asserted was a report prepared by officers of the [Board] into a fatal railway accident, it being clear, on the facts, that the report had been prepared for two purposes of equal importance (namely railway safety and litigation), and also that such reports were required to be prepared after all accidents, regardless of whether litigation was contemplated (see the judgment of Lord Wilberforce at pages 530B-531A).  In a judgment with which the other members of the House agreed in terms or in substance, he identified the test to be adopted (at page 533) in these terms:

“It appears to me that unless the purpose of submission to the legal adviser in view of litigation is at least the dominant purpose for which the relevant document was prepared, the reasons which require privilege to be extended to it cannot apply.”’

 

The Court confirmed application of this principle at paras [91], [101] and [113] and concluded that LP applied to the documents in categories 1, 2 and 4 (other than the two emails) as follows:

 

‘[119] … We have concluded that the judge ought to have concluded that the documents were brought into existence for the dominant purpose of resisting or avoiding contemplated criminal proceedings against ENRC or its subsidiaries or their employees.

 

Litigation privilege and children proceedings

 

In Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731 the House of Lords said LP did not apply to certain expert’s report in care proceedings. Lord Jauncey (giving the only reasoned speech on behalf of the majority in the House) said this was the case, because – he thought – care proceedings were not ‘adversarial’ (not perhaps an obvious conclusion in relation to today’s care proceedings). He said:

 

Thus the court is seeking to reach a decision which will be in the best interests of someone who is not a direct party and is granted investigative powers to achieve that end. In these circumstances I consider that care proceedings under Part IV of [Children Act 1989] are so far removed from normal actions that litigation privilege has no place in relation to reports obtained by a party thereto which could not have been prepared without the leave of the court to disclose documents already filed or to examine the child (emphasis added).

 

By ‘Part IV’ he was speaking of care or ‘public law’ proceedings. As Privilege (2013, 3rd Ed) by Colin Passmore stresses (at [3-235]), this quote applies only to care proceedings, not to proceedings under Children Act 1989 generally; though it is said to have been extended by obiter comments in the Court of Appeal in Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA; though that comment was not part of the ratio of the decision in Vernon.

 

And what of the rights of a child (whom Lord Jauncey excluded from his review) in such proceedings (see eg and United Nations Convention on the Rights of the Child 1989 Art 24)? When are proceedings ‘adversarial’ and when ‘inquisitorial’ (so LP may not apply)? These are subjects for another day….

 

Litigation privilege and family proceedings

 

Re L (Police Investigation) is not directly considered in SFO v ENRC. Since Re L holds that care proceedings (Children Act 1989 Part 4) are not adversarial, and SFO v ENRC concerned proceedings which were adversarial (and therefore that LP applied), the Re L decision is unnecessary to apply here.

 

To bring the discussion of LP full circle, it is important to go back to the rationale for LPP: that the privilege is essential to the administration of justice and to securing a fair trial. It enables the client to ‘make a clean breast’ of the client’s legal affairs without fear that what is said will be passed on to others (Anderson v Bank of British Columbia (1876) 2 ChD 644 at 649 per Sir George Jessel MR). It is considered essential to a system of justice (Greenough v Gaskell (1833)1 M & K 98 Lord Brougham LC) and is compatible with European Convention 1950 Art 6(1) (right to a fair trial). It gives the client an absolute right to refuse to produce to the court material which would otherwise be relevant to one or more issues before the court (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513).

 

By 1980 it was beyond question that this right to consult a lawyer freely extended, in cases of anticipated litigation (eg to the lawyer interviewing witnesses and obtaining expert evidence). In other words, that a lawyer could turn over any stone without fear that the lawyer might have to tell everyone in the case what was under the stone. Re L says, in effect, that Children Act 1989 Part 4 proceedings are not litigation. One wonders if children and their parents involved in such proceedings would agree? Given the issues involved – the possible loss of a child and their later adoption (in appropriate cases) – it is difficult to see what proceedings are less pregnant with serious litigation probabilities; but thus far in relation to Part 4 proceedings only the House of Lords has opined.

 

In relation to expert evidence obtained in preparation of other family proceedings (family money or private children proceedings) the position on LP remains as explained in SFO v ENRC. A lawyer is entitled to interview witnesses or obtain opinion evidence (subject only to obiter comments of the Court of Appeal in Vernon v Bosley (No 2) [1999] QB 18, [1998] 1 FLR 304, CA), and not to disclose them unless the client agrees.

 

If a local authority accumulates evidence in a case, once it is clear that care proceedings might result, material arising from enquiries by their lawyers would be covered by LP (circumstances almost precisely analogous to ENRC in the case). If the lawyers acquire the material when the dominant purpose is possible Part 4 proceedings, the local authority is not obliged to produce it (though its existence should be disclosed in accordance with basic disclosure principles: FPR 2010 r 21.1(1)).