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).