Costs: a litigation friend and child’s court proceedings


Liability for costs in child law litigation


In Barker v Confiànce Ltd & ors [2019] EWHC 1401 (Ch) (5 June 2019), Morgan J considered the extent to which a litigation friend and the child(ren), for whom the litigation friend acted, can be made personally liable for costs; and to what extent, in the particular case, any order for costs should be made. The costs applications of various parties to complex trust litigation arose where the children (Tom and Freya, now aged 18), through their mother and litigation friend (Ms Glover), had failed in their attempt to set aside a yet earlier consent order in the proceedings are in Barker v Confiànce Ltd & ors [2018] EWHC 2965 (Ch) (8 November 2018), Morgan J.


Morgan J concluded that in narrowly appropriate circumstances a litigation friend and a child involved in litigation might be subject to an order for costs. To what extent might his findings in relation to civil proceedings apply to children and litigation friends; and to children who themselves pursue proceedings without representation (Children Act 1989 (CA 1989) s 10(2) and (8); Family Procedure Rules 2010 (FPR 2010) r 16.6)?


Morgan J’s conclusion (as more fully explained later) was that:


  • Litigation friend – The court should say ‘the litigation friend is expected to be liable for such costs as the relevant party (if they had been an adult) would normally be required to pay’ (at [53])


  • Child litigants – (a) The court has a general discretion to make an order against a child litigant. (b) There is no rule that no order can be made against a child.


And in the process of all this, Morgan J mentioned the origin of ‘litigation friend’ (at [23]). Before CPR 1998 a child sued by a ‘next friend’ and defended a claim by the child’s ‘guardian ad litem’ (where the child was joined in care proceedings in 1984). In much earlier cases the next friend was ‘called, in law French, a prochein amy (or some similar spelling)’. And that ‘amy’ (‘ami’, ie ‘friend’, in modern French) survived into CPR 1998 – and now Family Procedure Rules 2010 (FPR 2010) – terminology as the hybrid ‘litigation friend’.


A litigation friend in family proceedings


Barker was civil proceedings. Such proceedings are governed by statute, common law and Civil Procedure Rules 1998. To what extent do these same provisions apply to children and their litigation friend’s in family proceedings? This question involves first a review of the statutory provisions in play in civil proceedings generally, as explained by Morgan J, and then a review of the common law and application of those statutory provisions specifically to family proceedings.


The starting point is that under Senior Courts Act 1981 s 51(1), in all civil courts (including in the Family Court: s 51(1)(ba)) costs are ‘in the discretion of the court’. By s 51(3): ‘The court shall have full power to determine by whom and to what extent the costs are to be paid’. This is subject to ‘rules of court’ as s 51(1) makes clear.


The way the court may exercise the s 51(3) discretion is dealt with by court rules, namely CPR 1998 r 44.2. Rule 44.2 applies fully in family proceedings says FPR 2010, save CPR 1998 r 44.4(2) which is disapplied by FPR 2010 r 28.2(1)). If a court decides to make a costs order, ‘the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party’ (r 44.2(2)).


If the court plans to make an order for costs, it bears in mind CPR 1998 r 44.2(4):


(4) In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including –

(a) the conduct of all the parties; [and]

(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful;…


‘Conduct’ under r 44.2(4)(a) includes the factors r 44.2(5): for example:


‘(a) conduct before, as well as during, the proceedings;…

(b) whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue; [and]

(c) the manner in which a party has pursued or defended its case or a particular allegation or issue….’


In conclusion on the rules, Morgan J touched on CPR 1998 r 46.4 (at [120]) which deals with ‘Costs where money is payable by or to a child or protected party’ and says that any such costs order ‘must be the subject of a detailed assessment’. This confirmed Morgan J’s view that an order can be made against a child; but, he accepted, he said: ‘it does not indicate anything as to the circumstances in which such an order might be appropriate’.


Position of a litigation friend


All of the above provisions (save for r 44.2(2)) apply equally to family as to other civil proceedings. However different rules apply to appointment of a litigation friend (or children’s guardian) as between CPR 1998 proceedings and family cases. Here the litigation friend or child, and any lawyer advising one or other (or both) begins to look down the Alice in Wonderland rabbit hole of differences between rules for civil and family proceedings; for there are at least four different types of child representative ((1) children’s guardian who may also be (2) CAFCASS – ‘an officer of the service’ – or (3) Official Solicitor or a litigation friend). A child (ie under 18), may (unlike in civil proceedings) act alone with permission from the court (Children Act 1989 s 10(8); FPR 2010 r 9.10(1)(f).


Differences in terminology there are between CPR 1998 and FPR 2010; but is there any real distinction arising from that fact when it comes to the costs liability of a litigation friend or child litigant? The point is important. Proportionately in family cases, adults are drawn in to act for children (and sometimes for other protected parties: FPR 2010 Pt 5) than in civil cases. The Barker order for costs calls for a comparison of appointment of a litigation friend in family proceedings as against in other civil proceedings.


Litigation friend in civil proceedings


In civil proceedings a person becomes a litigation friend under CPR 1998 Pt 21 (which applies to children and protected parties (ie individuals who lack capacity within the terms of Mental Capacity Act 2005)). By contrast FPR 2010 deals with acting for a protected party in Part 15 and for a child in Pt 16.


FPR 2010 Pt 15 repeats most of the provisions of CPR 1998 Pt 21, for protected parties only. CPR 1998 Pt 16, by contrast, is a notoriously tricky area of rule-making (‘complex’ was the term used by Black LJ, now Lady Black in the Supreme Court, of when a child could apply in her own right in Re W (A Child) (Care Proceedings: Child’s Representation) Practice Note [2016] EWCA Civ 1051, [2017] 1 WLR 1027). The potential for costs orders in relation to children and litigation friends is likely to apply only to r 16.6 (circumstances where child proceeds without a children’s guardian or litigation friend)) and Chapter 5 (entitled ‘Litigation Friend’; rr 16.7-16.15) of Pt 16.


FPR 2010 Pt 16 Ch 5, as far as it goes, is in much the same terms as CPR 1998 Pt 21. For example, the provision in issue in Barker was CPR 1998 r 21.4(3). The parallel provision is FPR 2010 r 16.9(2). Under the heading ‘Who may be a litigation friend [FPR 2010 adds: ‘for a child’] without a court order’ each of these rules say:


(3) … A person may act as a litigation friend if he –

(a) can fairly and competently conduct proceedings on behalf of the child or protected party;

(b) has no interest adverse to that of the child or protected party; and

(c) where the child or protected party is a claimant, undertakes to pay any costs which the child or protected party may be ordered to pay in relation to the proceedings, subject to any right he may have to be repaid from the assets of the child or protected party.


FPR 2010 r 16.9 omit the reference to protected parties, and, in r 16.9(2)(c), leaves out the words in italics. In Barker the appointment of Ms Glover was not by court order; but the fact also that she had not filed an undertaking (r 21.4(3)(c)) did not, said Morgan J, alter any liability she might have to pay costs (see [31]). There is no obvious reason why the same should not apply to the potential liability for costs of a FPR 2010 litigation friend who acts under r 16.9 and 16.10 (which sets out a procedure for the litigation friend to state that they wish to act; and see CPR 1998 r 21.5).


Liability of litigation friend and of a child


Morgan J answered the questions set out in the first paragraph of this article – whether a litigation friend and child can be made liable for costs as now explained; and in the process he held that the law was not correctly stated by Halsbury’s Laws, 5th ed., Vol 10 (2017), Children and Young Persons (‘Halsbury’s Laws Vol 10’).


The general position of litigation friends, said Morgan J, was that they should expect to start from the same position as any unsuccessful litigant (subject to where particular circumstances justified another order):


[53] [Where a litigation friend] has acted for an unsuccessful child party, the court should apply the general approach that, as regards costs, the litigation friend is expected to be liable for such costs as the relevant party (if they had been an adult) would normally be required to pay. The governing rule is that the court has regard to all the circumstances of the case and it is open to the litigation friend to point to any circumstance as to their involvement in the litigation which might justify making a different order for costs from that which would normally be made against an adult party.


The child was in a different position:


[121] … There is no general rule that the court will not make an order for costs against a child unless they have been guilty of fraud or gross misconduct. Instead, as always, the general rule is that the court must consider all of the circumstances of the case.


Thus the position was not as Halsbury’s Laws asserted. It was not impossible for the court to make any order against a child, nor that an order can only be made where child is fraudulent. Earlier cases showed orders made against children ‘even where they had litigation friends’ (at [119]); nor does r 21.4(3)(c) imply ‘a general rule that a child who is an unsuccessful claimant will not be ordered to pay costs’.


‘Such costs as the relevant party (if adult) would normally be required to pay’


For the representative of a child – other than a CAFCASS officer or the Official Solicitor, as children’s guardian or litigation friend – the question must be where any proceedings are contemplated: is there a risk of a costs order ‘normally’ if an adult took proceedings. In practice in family proceedings which do not involve money, divorce or domestic abuse, there are only rarely orders for costs; and even in matrimonial financial proceedings costs order applications go through a FPR 2010 r 28.3 costs strainer (no orders for costs in financial relief proceedings). Most CA 1989 Pt 2 (ie ‘private law’) non-parent proceedings (eg by a grand-parent) proceed only with permission of the court (CA 1989 s 10(2)); and that permission filter, in the absence of the court being misled on an application, is likely to provide an answer to any claim for costs against a s 10 applicant. ‘Normally’ costs applications in family proceedings are rare.


Application can be made by or for a child of married parents under Matrimonial Causes Act 1973 (MCA 1973) s 23(1) and as envisaged by FPR 2010 r 9.10. An application to vary a settlement in which a child may have an interest requires the court to appoint a guardian who does not have to be the Official Solicitor (FPR 2010 r 9.11). An application for ‘any sum due under’ a Family Court order due to a child can be made by ‘a person who looks after a child’ (Matrimonial and Family Proceedings Act 1984 s 31L(4))). An order for costs could be made in any of these proceedings if a court thought the circumstances justified; including that a respondent parent had proposed settlement on terms better than the court finally ordered (Calderbank v Calderbank [1976] Fam 93, [1975] 3 WLR 586, CA). (A claim for financial relief under CA 1989 Sch 1 cannot be made by a child under 18 (see paras 1 and 2: only parents, those with a child living with them under a child arrangements order etc (para 1(1)) can apply).)


Any of these claims might involve a claim for costs against a litigation friend in the rare circumstances where such would be appropriate. The fact that a child needs permission from the court to proceed (in private law children proceedings: CA 1989 s 10(8); and for matrimonial financial relief: FPR 2010 r 9.10(1)(1)(f)) makes it almost inconceivable that a child be subject to an order for costs. An exception to that might be that child has pressed on with any claim in the face of warnings from the court (a lawyer who acted for a child who proceeded in such circumstances might also be at real risk of a wasted costs order: but that is quite another subject…).


Barker costs order bites back


The question for the litigation friend still comes back to what order might the court say an unsuccessful party should ‘normally be required to pay’. The costs applicant in family proceedings has a very narrow passage to pass to frame an order for costs. That narrowness caveat applies to the litigation friend, and even more so to a child litigant. Orders for costs, especially in children proceedings, are rare in FPR 2010 proceedings.


All that said, the provisions at large in Barker apply in family proceedings, subject to what other orders might normally be made in family litigation. Reflections on the Barker case – as here – can only warn would-be child litigants and any litigation friends (or other non-institutional child representatives), that there just may always be a Barker costs bite in a narrow range of cases.


David Burrows

30 August 2019


Release of hearings documents in family proceedings: Part 2


Release of hearings documents: general principles


The first of these two articles  considered the recent Supreme Court decision of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019). On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998. However, it confirmed that, as the Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings, including – plainly – family proceedings under Family Procedure Rules 2010 (FPR 2010). As with all other civil proceedings this is subject to the exceptions (summarised in [46]) where the court will order a private hearing (see eg CPR 1998 r 39.2(3) and Administration of Justice Act 1960 s 12(1))).


The rule in question in Cape Intermediate v Dring is CPR 1998 r 5.4C which as relevant here says (under the heading ‘Supply of documents to a non-party from court records’):
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.


So how does all this impact specifically on family proceedings? Part 1 explained the extent to which the case affects release of court material to non-parties. This article considers to what extent any rule, in FPR 2010, can override the common law principles which are addressed in Cape Intermediate v Dring apply to family proceedings? Can these common law principles be overlaid by any rule which applies to family proceedings?


Rule-making powers and the common law


As explained in Part 1, and – as the Supreme Court makes clear – its decision is very much influenced by the Court of Appeal decision in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster). Lest there be any doubt here, in Guardian v Westminster, Toulson LJ, who gave the lead judgment, explained the part of the common law and open justice as follows:


[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.


As Toulson LJ says, the common law is subject only to ‘statutory provision’; and, subject to that, the courts have jurisdiction as to how – in this case – the open justice principle should be applied.


The question which must be answered here is the lawfulness of restrictions – such as they are – in family proceedings in the existing FPR 2010 r 29.12 (set out in full below). After Cape Intermediate v Dring, especially, can the rule be said represent the law at all? Does it prevent release of documents to non-parties where application is made to the court?


Release of court material to non-parties in family proceedings


The nearest FPR 2010 get to dealing with release of documents to non-parties is, as mentioned, is at r 29.12(1). Of release to ‘any person’ (ie including non-parties) of any document filed in family courts, FPR 2010 r 29.12(1) says:


(1) … No document or copy of a document filed or lodged in the court office shall be pen to inspection by any person without the permission of the court, and no copy of any such document or copy shall be taken by, or issued to, any person without permission.


So, according to the rules the court the court can give ‘permission’.


In Appleton & Gallagher v News Group Newspapers Ltd & PA [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J took on this provision head on and said what he thought it meant. Dealing with release to non-parties – in this case ‘the press’ he asserted: ‘[13] … Further the press are not allowed any access to documents whatsoever – see FPR 29.12.’


Many readers – lawyer and non-party alike – will treat this as a statement of the law (see eg Magrath et al[1]). This always was doubtful; and any way it is not what r 29.12(1) actually says. And if Mostyn J’s comment is what the law said, it is made the more unlikely in the light of the definition of the common law by the Court of Appeal and the Supreme Court in Cape Intermediate v Dring.

Further Mostyn J’s statement at [13] (above) is not part of what he was asked to decide (the ratio decidendi) of the case. He had earlier explained what this was:


[5] All I am being asked to decide today is whether [an] existing order, which restricts the reporting of the proceedings, should be lifted, or modified,… It is highly important that I should exercise my powers very carefully and cautiously so as not to pre-empt [the trial judge’s] decision about publication, anonymisation or redaction of his judgment (italics added).


Nothing is said about a decision on non-party release of documents. This would be for the judge who tries the case. Mostyn J’s comments on r 29.12 are incidental (obiter) to what he had to decide, and cannot form part of the law which the rest of us are required to follow. And insofar as they explain the meaning of r 29.12, they must go on to deal with the conflict between the common law and the rule.


Family Procedure Rules 2010 r 29.12 as law


But let us say Mostyn J was correct in his obiter comment on what r 29.12(1) means. If that is not in accordance with primary law (statute or common law) where does that leave its lawfulness? A rule does not represent the law save where it summarises the law. CPR 1998 r 39.2(3) provides a good example of a rule which attempts to summarise the law. There it is the list of civil proceedings which may be heard in private (and which is entirely apt to this discussion).


A rule regulates the way the law is operated, as explained by Buxton LJ in Jaffray v The Society of Lloyds [2007] EWCA Civ 586, [2008] 1 WLR 75:


[8] … The CPR (in that case CPR 1998 r 52.17), being rules of court, cannot extend the jurisdiction of the court from that which the law provides, but can only give directions as to how the existing jurisdiction should be exercised. That is very trite law, but if authority is needed for the proposition it can be found in the speech of Lord Herschell LC in British South Africa Co v Companhia de Mocambique [1893] AC 602 at p 628….


A rule cannon change statute or common law. Lady Hale makes this point in Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 (and in Dring (see below)) at [27] ‘[Rules cannot] change the substantive law unless expressly permitted so to do by statute’.


But do rule makers have any powers to change primary law? They can only do so – possibly: even that is not constitutionally entirely clear – if Parliament says so. Courts Act 2003 ss 75 and 76 define the terms of reference – delegated powers – of family proceedings rule makers (ie Family Procedure Rules Committee). To a very limited extent that committee can ‘modify’ certain legal principles.


Nothing is said in Courts Act 2003 about it being able to alter the common law. It is significant that still in 2019 a family proceedings case (nullity, now under Matrimonial Causes Act 1973) – Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 – is treated by all common law courts as determinative of open justice principles over 100 years later. Rule-makers under Courts Act 2003 or otherwise have no power to change that.


Clibbery v Allan


The common law conflict with Mostyn J’s assertion of what r 29.12 said to mean can be easily illustrated by Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 1 FLR 565 which predates FPR 2010, but which those rules cannot change. The case is very much still good law as Mostyn J himself makes clear (see his citations at [7]-[11]) in Appleton v Gallagher. It concerned proceedings where a circuit judge had refused to make an occupation order injunction (under Family Law Act 1996 Pt 4) on Ms Clibbery’s application. After the hearing she passed some of the documents in the case to the Daily Mail. Mr Allan asked for a restraint injunction to prevent publication by Ms Clibbery or the newspaper.


The injunction was granted on an interim basis, but refused by Munby J on the return date (Clibbery v Allan [2001] 2 FLR 819). Much of the judgement in the Court of Appeal turned on the extent to which proceedings such as these (under Pt 4 of the 1996 Act) were private, and to what extent confidentiality of documents therefore applied.


The issue for the Court of Appeal was: were the proceedings under Family Law Act 1996 Pt 4 in ‘private’ (as they defined it); and if they were, could there be subsequent publication or other release of documents, as Ms Clibbery had done. Dame Elizabeth Butler-Sloss P (with whom Thorpe and Keene LJJ agreed) held that publication in this way – that is release of the documents in the case by Ms Clibbery, was permitted. Mr Allan’s injunction was discharged.


Thus, the common law now stands, on release of court documents in family proceedings such as this. Clibbery v Allan directly contradicts what was asserted by Mostyn J in Appleton; and there is no statute law which says rule-makers can do this (if Mostyn J is correct that they have). Each case must be decided on its facts if a non-party applies for release; or if a party seeks to release.


Cape Intermediate v Dring and common law courts


Cape Intermediate v Dring applies to all courts covered by the common law (includes all family courts). There may be more exceptions in family courts (see Dring at [46]: eg for children proceedings and ‘privacy interests’; and see eg Administration of Justice Act 1960 s 12(1)). At [41] the case stresses that it applies to all ‘courts and tribunals’ and that ‘the extent of any access permitted by the court’s rules is not determinative’ – that is, it is not the end of the story. The question is: how the jurisdiction to release documents in a particular case – any case – should be exercised.


Each case (family proceedings or otherwise), where a non-party applies – eg media; other researcher; interested charity or other group etc – must be considered on its individual facts. If the rules do indeed say something else, this cannot be ‘determinative’ of the issue of what documents can be released. Clibbery v Allan and Cape Intermediate v Dring explains what documents can be released from family proceedings; subject always to statutory (such as s 12(1) (above)) and to common law principles on privacy (best summarised in CPR 1998 r 39.2(3)).

[1] Need to make reference to Transparency book, which is not to hand as I write).

Can the Family Court be trusted with the law?…


Notice and a court’s own initiative order


In a lawful and in-time appeal in family proceedings (Family Procedure Rules 2010 (FPR 2010 Pt 30) from a deputy district judge in the Family Court (venue to remain anonymous for present) to a circuit judge, the judge dealing with the appeal has ordered as follows:


… that unless the Appellant [AB] complies with paragraph 3 of the order of 13th June 2019 [to obtain a transcript of the hearing appealed from] by no later than 4.00 pm on 8th August 2019 her request for permission to appeal shall stand struck out without further order and the hearing on 12th August 2019 shall be vacated.


The appeal is by a former wife (AB), who acts in person. She had representation at the hearing below, provided by the Bar pro bono unit (now called ‘Advocate’). The husband is represented by solicitors and a barrister.


The order is dated 31 July 2019. As quoted above, is it the extent of what it says. No more is said by the order of the matters referred to in the remainder of this note. It was received by AB on Saturday 3 August (five working days before the hearing of her appeal).


The law and ‘own initiative’ orders: Family Procedure Rules 2010 r 4.3


What of the law on all this, which the court and the circuit judge must apply? First FPR 2010 r 4.3 (as relevant here) says:


4.3 Court’s power to make an order of its own initiative

… (4) The court may make an order of its own initiative without hearing the parties or giving them an opportunity to make representations.

(5) Where the court has made an order under paragraph (4) –

(a) a party affected by the order may apply to have it set aside, varied or stayed; and

(b) the order must contain a statement of the right to make such an application.


These provisions should not come as a surprise to anyone. CPR 1998 r 3.3(4)-(6) is in exactly the same terms as the passage from FPR 2010 r 4.3 cited above. Any party who is told by a judge to do something – an ‘own initiative order’ – without having the opportunity to respond to the court, must be given a chance to do so. And that party – the main point of this note – must be told of the law which gives her or him ‘the right to make such application’ (r 4.3(5)(b)).


Powers of the appellate court; law and the grounds of appeal


The appellate court – as here – can strike out an appeal (FPR 2010 r 30.10(1)(a)) and for ‘compelling reason’ (FPR 2010 r 30.10(2)). No reasons – ‘compelling’ or otherwise – have been stated for the judge’s order in AB’s case, save as above. What is ‘compelling’ about striking out an appeal against an order where, with judge’s reading time included, the court has allowed one hour for the whole of the permission to appeal hearing, and for the appeal if permission is granted. Nothing is said about notice in r 30.10(1)(a); but is likely that basic fair trail (European Convention 1950 Art 6(1)) principles would require the courts to proceed under r 30.10(1) in the same way as is required by r 4.3(5).


For reading alone, before he gets to the transcript, the judge has 600 pages of the husband’s documents (which the deputy district judge allowed to be filed); thirty pages and more of skeleton arguments; ten case law authorities from the husband, and six from the wife (three from the House of Lords or Supreme Court: Piglowska v Piglowski [1999] UKHL 27, [1999] 1 WLR 1360 [1999] 2 FLR 763; White v White [2001] 1 AC 596, [2000] 2 FLR 981, [2000] UKHL 54 and Wyatt v Vince [2015] UKSC 14, [2015] 1 FLR 972). When I was provided with the bundles on the day before the hearing it took me most of three hours properly to read them; and when I have the husband’s skeleton argument a short time before the hearing with case law authorities, it took me most of an hour to skim through them. The judge hopes to read all that, plus the appeal notice and skeleton arguments, and hear permission to appeal, and the appeal as well in one hour. Justice cannot be done in that way.


As the grounds of appeal makes clear this appeal – as with most – turns on issues of law. A summary of the deputy district judge’s short judgment has been agreed. The appeal is against the ‘decision’ of the court below (r 30.12(1)). In a case like this a transcript is likely to add little (save expense to a financially stretched appellant). And it will only extend the judge’s reading time still further. If permission is granted and a transcript required a conditional permission can be ordered providing that the transcript be obtained.


The court has been told that not enough time has been allowed.


Family Court: acting unlawfully?


The unrepresented wife does not know the law. The court and the lawyers should do so. Yet in AB’s case none of (1) the husband’s lawyers (who should tell the court where the court appears to have got the law wrong); (2) the circuit judge who made the order under FPR 2010 r 4.3 (or without ‘compelling’ reason under r 30.10(1)(a)); or (3) the court office – none of these have ensured that the basic notice principles of r 4.3(5)(b) are complied with. And if the appeal is struck out, it will surely have been disposed of unlawfully, and contrary to principles in r 4.3(5)(b) which guarantee a fair trial in European Convention 1950 Art 6(1)?


How often are rules like this – the same rule in CPR 1998 r 3.3(5)(b) has been in operation for over 20 years – being ignored by courts and lawyers where parties are unrepresented; or even where they are represented? Failure to comply with basic protections of a fair trial clearly set out in the rules (FPR 2010 r 4.3(5)(b)) might be seen as bullying by the Family Court or the judges. And as an aside, it is worth noting that pre-Legal Aid Sentencing and Punishment of Offenders Act 2012 both parties are likely to have been eligible for legal aid on the basis of their means and on the merit of a matrimonial financial relief case.

Release of hearings documents and open justice in the Supreme Court

20160419_173301Access by non-parties to court documents


The issues in the ‘important case’ of Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Groups Forum UK) [2019] UKSC 38 (29 July 2019) (Cape Intermediate v Dring) were summarised by Lady Hale (who gave the judgment of Court consisting of Lord Briggs, Lady Arden and Lords Kitchen and Sales) at [15] as:


  • What is the extent of Civil Procedure Rules 1998 (CPR 1998) r 5.4C(2) (supply of documents to a non-party from court records: see commentary on this rule and the case in the Court of Appeal in Family Court Practice 2019 at 3.2016)? Does the rule ‘give the court power to order access to all documents which have been filed, lodged or held at court’; or is it more limited, as held by the Court of Appeal in [2018] EWCA Civ 1795 (31 July 2018).
  • Is access to court documents governed solely by the CPR 1998, save in exceptional circumstances, as the appellant (Cape Intermediate) argues? Or does the court have an inherent power to order access separate from the rules?
  • If there is such a power, how far does it extend and how should it be exercised?


The Supreme Court upheld the decision of the Court of Appeal that, for good reason, the court can order release to non-parties of certain court material, in its inherent jurisdiction. In so doing the Court sustained the open justice principle as defined by the Court of Appeal in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 (Guardian v Westminster)). The background to the issues in this case were looked at in the ICLR blog at ‘Release of family courts hearing documents’; and Cape Intermediate v Dring in the Court of Appeal was reviewed fully in a series of articles entitled ‘Court documents: Part 1, Part 2, Part 3 and Part 4’.


Cape Intermediate and the family lawyer


On the face of it, Cape Intermediate v Dring applies only to proceedings under CPR 1998 (ie not to family proceedings: CPR 1998 r 2.1(2)). But as the Supreme Court makes clear, its decision is intended to extend to all proceedings covered by the common law (ie criminal cases and all forms of civil proceedings). And this plainly includes proceedings under Family Procedure Rules 2010 (FPR 2010) and in all family courts, subject to the exceptions (see in [46]) in line with where the court will order private hearing (see CPR 1998 r 39.2(3), and considered later in this article).


The Supreme Court decision is based on the open justice principle fully explained by Toulson LJ in Guardian v Westminster (successful disclosure of criminal proceedings documents to The Guardian). Lady Hale cites Toulson LJ:


[1] Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse.


Guardian v Westminster has been frequently referred to since 2012. Notably, it was affirmed by the Supreme Court in Kennedy v The Charity Commission [2014] UKSC 20, [2015] 1 AC 455 and A v British Broadcasting Corporation [2014] UKSC 25, [2015] 1 AC 558. The concept of open justice goes back at least to Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417, where the House of Lords explained the long history of the principle (and see ICLR blog: ‘To be heard in the dining hall…’: Scott 100 years on’).


The application of the principle to all common law courts – that, not just to courts which are subject to CPR 1998 – is explained clearly in Cape Intermediate v Dring where the Supreme Court says:


[41] The constitutional principle of open justice applies to all courts and tribunals exercising the judicial power of the state. It follows that, unless inconsistent with statute or the rules of court, all courts and tribunals have an inherent jurisdiction to determine what that principle requires in terms of access to documents or other information placed before the court or tribunal in question. The extent of any access permitted by the court’s rules is not determinative (save to the extent that they may contain a valid prohibition). It is not correct to talk in terms of limits to the court’s jurisdiction when what is in fact in question is how that jurisdiction should be exercised in the particular case.


Cape Intermediate v Dring and the family courts


Not least of all, the open justice principle applies to family courts, though with the variety of exceptions trailed in Scott (above), and now more specifically summarised in Administration of Justice Act 1960 s 12(1) and CPR 1998 r 39.2(3) (see Part 2). A summary of these statutory provisions is provided in Dring:


[46] … There may be very good reasons for denying access [to documents]. The most obvious ones are national security, the protection of the interests of children or mentally disabled adults, the protection of privacy interests more generally, and the protection of trade secrets and commercial confidentiality….


So how does the case impact on the family courts? It raises a number of important questions, which these articles must address. First, to what extent does Cape Intermediate v Dring apply to family proceedings at all? The case summarises the common law on open justice. To what extent, if at all, can the common law be overlaid by a rule?


First, what are the rules in question here; and how do they apply to civil proceedings after Dring? CPR 1998 r 5.4C (as relevant here) provides, under the heading, ‘Supply of documents to a non-party from court records’):
(1) The general rule is that a person who is not a party to proceedings may obtain from the court records a copy of –

(a) a statement of case, but not any documents filed with or attached to the statement of case, or intended by the party whose statement it is to be served with it;
(b) a judgment or order given or made in public (whether made at a hearing or without a hearing)…

(2) A non-party may, if the court gives permission, obtain from the records of the court a copy of any other document filed by a party, or communication between the court and a party or another person.


In addition, CPR 1998 PD5A para 4.2 sets out a variety of formal ‘records of the court’ which any party to the proceedings is entitled to: for example, written evidence filed in relation to an application, judgments or orders made in public and any notices of appeal.


The parallel rule in family proceedings (not cited in Dring) is FPR 2010 r 29.12(1) which says – a little elusively, it might be thought – under the heading ‘Access to and inspection of documents retained in court’ that save where the rules or a practice direction otherwise provides ‘no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court’. In context the term ‘inspection’ (see also FPR 2010 r 21.1(2)) can be taken to mean inspection and copying for a suitable fee; though no mention is made here specifically of non-party inspection. Again perhaps that can be implied; but the law must surely be clearer on this point.


Cape Intermediate v Dring: the case and the decision in the Court of Appeal


Cape Intermediate v Dring gives the Supreme Court an opportunity to consider how much of written material provided to the court by the parties themselves should be accessible to those not directly party to proceedings (ie ‘non parties’). It continues an important line of authority going back to the minority speech of Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338 and Lord Bingham in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498, [2000] FSR 1 (both cited in the Supreme Court).


The case itself came about after an asbestos victim support group (Mr Dring was an officer of the group), not party to the initial proceedings, made an application to have access to all the documents from a settled personal injury asbestos case. The defendant from the initial trial appealed against the granting of such an order which had been made by a Master under the provisions of CPR 1998 5.4C (above).


The Court of Appeal ([2018] EWCA Civ 1795 (31 July 2018)) narrowed the ambit of an earlier Master’s order and held (on direct appeal from the Master) that the court could give permission for release to a non-party the following (and see summary in the Supreme Court decision at [9] to [11]):


  • The documents summarised in para 4.2 (above); but not including, necessarily, trial bundles.
  • In its inherent jurisdiction the court generally, has an inherent jurisdiction to permit non-parties to obtain certain documents (see [69]); GIO Personal Investment Services Ltd v Liverpool and London Steamship Protection [1999] 1 WLR 984 at 994-5). The main rationale for application of the inherent jurisdiction is to accord with the open justice principle and to enable anyone permitted to attend court to make sense of proceedings (see eg Guardian v Westminster). The following documents might be released:
  • skeleton arguments and other written submissions (Cape Intermediate at [69]; GIO (above));
  • documents the judge has read or has been asked to read in court or in a skeleton argument (Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2, [2002] 1 WLR 2253; and see CPR 1998 r 31.22);
  • witness statements ‘during the course of the trial’ (CPR 1998 r 32.13) including experts reports (Cape Intermediate at [96]), but not their exhibits (Cape Intermediate at [100]); and
  • any other document which it is necessary for the court to release to comply with the open justice principle (Cape Intermediate at [110]).
  • The Court of Appeal sent to Picken J a decision as to whether certain other specific documents fell within (2) above or otherwise required release to comply with open justice principles.


On Cape’s appeal and Dring’s cross appeal the Supreme Court upheld the Court of Appeal’s decision. Limits remain on application of r 5.4C; but in general terms the spirit of the important Court of Appeal open justice principle decision in Guardian v Westminster has been developed by the Supreme Court and Court of Appeal and related more generally to civil proceedings.


So where does this leave the non-party in family proceedings? The next article looks at the extent to which FPR 2010 r 29.12 is compliant with the common law; and, if it is not, whether it is within the statutory powers of the rule-makers (Family Procedure Rules Committee). Subject to that, what are the powers of family judges to order release of documents from family proceedings?