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.

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Privacy: Cliff Richard, bloggers and family courts transparency

20170722_161644Privacy: where now?

 

In Richard v The British Broadcasting Corporation (BBC) & South Yorks Police [2018] EWHC 1837 (Ch) Mann J examined the balance of an individual’s privacy, as against the freedom of the media to publicise information which it acquires about that individual. It is another step along the way to affirm the existence of a tort of breach of privacy. And, yes, it was a case in tort; but it has resonance for the family lawyer especially in the context of transparency in family courts and the reporting of family proceedings.

 

Judgment in Richard was on 18 July 2018. A month later it was announced that there was to be a pilot scheme to permit legal bloggers into family courts.  The Transparency Project on 22 August explained this:

 

After months of liaison with the Family Procedure Rules Committee our proposal to permit legal bloggers into family court hearings is going to be piloted. The pilot will launch on 1 October and run for 9 months until 30 June 2019, so it’s no change until October. The pilot will allow practising lawyers, academic lawyers and those under the umbrella of an educational charity (like us) (sic: there was no statement of what was to be allowed)….

 

What is the connection between the case and the pilot scheme proposal? Both concern privacy: the first explains the expectation of privacy which a person enjoys, as against the right – if that privacy is not wrongly (ie tortiously) invaded – of the press to publish information. The second deals with the extent to which interested persons, other than the press, may attend private court hearings and (subject to the restrictions on publication of information about children proceedings: Administration of Justice Act 1960 s 12(1)(a)) to report upon those proceedings (Family Procedure Rules 2010 (FPR 2010) r 27.11(2)).

 

It always was the case that ‘any other person whom the court permits to be present’ (OPs) in proceedings heard in private (ie most family proceedings) could attend court (FPR 2010 r 27.11(2)(g)).. There is a proposed PD36J: Pilot Scheme – Transparency (Attendance at hearings in private); though it has yet to be signed off by the President of the Family Division. It says that the purpose of the new scheme is –

 

…to assess the use of new practices and procedures to allow for attendance at hearings in private by certain lawyers with a view to their being able to report on proceedings (as “legal bloggers”) in addition to duly accredited representatives of news gathering and reporting organisations.

 

A (ff) category is added to those attending private hearings, consisting of ‘duly authorised lawyers’. Each component of this is exhaustively defined. It is not clear what this pilot adds, for those who want to attend court, to what was available for the much wider category of OPs under para (g); and which is there already.

 

A question which remains to be resolved, is to what extent will the court release to OPs and media representatives (r 27.11(2)(f) (MR)) those attending sufficient documents (witness statements, skeleton arguments and other hearings documents: see further Release of family courts hearing documents, ICLR, 11 November 2016) to enable the OP/MR to make sense of proceedings (see eg R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618, [2012] 3 WLR 1343). The question has recently been further considered, though not in the context of r 27.11, in Cape Intermediate Holdings Ltd v Dring (Asbestos Victims Support Group) [2018] EWCA Civ 1795  (powers of the court under the CPR and its inherent jurisdiction to permit access to documents by non-parties). That case extends the debate but does not answer the difficulties of the OP or MR who wants to understand what is happening in the case.

 

Richard v BBC

 

In the Richard case, unknown to himself, Sir Cliff Richard (CR), the claimant, had become subject to investigation by South Yorkshire Police (SYP) for alleged child abuse. A BBC reporter found out about it. SYP promised him advanced notice of their intended search. When it took place in August 2014 the BBC immediately gave extensive television coverage to it. CR remained under investigation until June 2016 when it was announced there would be no charges.

 

CR claimed that both BBC and SYP violated his rights both in privacy and under the Data Protection Act 1998 (DPA 1998). (Mann J specifically held (at [226]) that the DPA 1998 claim added nothing to the privacy claim. It could be ignored.) He claimed substantial damages because his life and finances have been radically affected by what happened. In May 2017 he reached a settlement with SYP. BBC continued to resist the claim. It came before Mann J in April 2018. Judgment is dated 18 July 2018. BBC was found liable to CR in damages (£230,000) with special damages to be assessed.

 

Mann J defined the privacy issues he must resolve [225] as follows:

 

  • Did CR have a legitimate expectation of privacy in relation to the investigation and the search of his property?
  • If yes, was BBC justified in publishing information to the investigation by virtue of its rights of freedom of expression?
  • If he had rights of privacy, was there an infringement of them by either or both defendants, and (if so) what damages follow (this third component need not be considered here)?

 

Privacy and the law

 

Privacy in law is not an easy subject, where the common law – largely framed by European Convention 1950 jurisprudence – is still feeling its way. Richard may prove to be an important step in its development; though many decisions are fact specific and therefore stand alone. Five of the recent Supreme Court decisions on privacy are:

 

  • Rhodes v OPO [2015] UKSC 32, sub nom O (A Child) v Rhodes [2016] AC 219: the concert pianist James Rhodes wanted to publish an autobiography which described graphically what he had suffered as a child. The American mother of Rhodes’s 12 year old son thought what was said, if read by the child, might damage him psychologically. The Supreme Court allowed publication: if what was said was true, was not defamatory and not intended deliberately to injure. Freedom to publish was given a high premium by the law (see [77]). Appeal allowed by all five SCJJ.

 

  • Re JR38 [2015] UKSC 42, [2016] AC 1131: the applicant for judicial review was a 14 year old who had been involved in ‘interface violence’ in Northern Ireland. The police wanted to expose his name. Does the fact that he was a child make any difference to his expectation of privacy? The majority held this was an objective test. Child hood is irrelevant. Art 8 was not engaged. Appeal allowed on a majority, 3:2 SCJJ.

 

  • R (C) v Secretary of State for Justice [2016] UKSC 2, [2016] 1 WLR 444: protection of anonymity of mental patient (all five SCJJ agreed).

 

  • PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251, [2016] 2 WLR 1253 – three-way sex interim injunction. Privacy allowed to PJS (and for the sake of his children) by four SCJJ over dissent of Lord Toulson.

 

  • Khuja v Times Newspapers Ltd [2017] UKSC 49, [2017] 3 WLR 351 – publicity allowed for name of a police suspect (child sex grooming in Oxford area) who was not ultimately charged of the offences investigated. Appeal dismissed on a majority, 3:2 SCJJ.

 

Of the five appellants two secured privacy. C, a mental patient kept his anonymity. PJS, at an interim stage, succeeded also (and his children were an important factor: see Lady Hale at [72]). Of the other three, all either were permitted publicity (James Rhodes, in that case freedom of expression for an individual) or had anonymity denied. Publicity ruled the outcome in each of these three cases. Why did the publicity question go the other way in Richard?

 

Reasonable expectation of privacy

 

Mann J defined the first issue he must deal with as CR’s ‘legitimate expectation of privacy’. This starts from European Convention 1950 Art 8 (right to respect for private life) balanced against Art 10 (freedom of expression): respectively of CR and of BBC. Balancing the rights, where a conflict arises, he said (at [230]), involves the following:

 

  • Were CR’s Art 8 rights engaged?
  • How were such rights, if engaged, to be balanced against the Art 10 rights of the BBC?
  • Was there a public interest in publishing the information that was published?

 

Of Art 8 rights Mann J said there is a no ‘invariable right to privacy’ ([251]); but, that said, the starting point is that a suspect has a reasonable expectation of privacy in relation to a police investigation (at [248]). This question turns on the extent to which, first, people generally understand, and give effect to, the presumption of innocence; and, secondly, that everyone is ‘capable of adopting a completely open- and broad-minded view of the fact of an investigation so that there was no risk of taint either during the investigation or afterwards’. This is rarely the case with most lay people.

 

This took Mann J to Khuja (above). Lord Sumption gave judgment for the majority. He explained that he was not sanguine as to the ability of the public to distinguish suspicion from guilt. He went the other way on the decision to publicise Mr Khuja’s name, largely on open justice principles. Mann J accepted the minority view (Lords Kerr and Wilson) where they quoted Cobb J in Rotherham MBC v M [2016] EWHC 2660 (Fam), [2016] 4 WLR 177 (at [39]; [52] in Khuja): that despite the presumption of innocence, where there are false allegations of serious crime investigation “mud sticks”. The fact of a person being a public figure, like CR, made no difference to their entitlement to an expectation of privacy ([256]; and see eg K v News Group Newspapers Ltd [2011] EWCA Civ 439, [2011] 1 WLR 1827 per Ward LJ at [10]; Murray v Big Pictures (UK) Ltd [2008] EWCA Civ 446, [2008] 2 FLR 599, [2009] Ch 481 per Brooke LJ at [36]).

 

Nor was the position altered by the nature of who received the information. If information starts out as private it remains so, ‘full stop’:

 

[258] … Sir Cliff’s rights in respect of the information in the hands of the police are not based on a reasonable expectation of privacy as long as the information does not fall into the hands of the media; he has a reasonable expectation of privacy full stop…

 

Art 8 was engaged as against both defendants. But how did BBC’s Art 10 rights balance against CR’s privacy? What of the effect of Human Rights Act 1998 s 12(4) and BBC public interest defence? How did each set of rights weigh one against the other? In assessment of the balance Mann J drew attention to the ‘ultimate balancing test’, defined by Lord Steyn in Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2005] 1 AC 593, [2005] 1 FLR 591 at [17]. No right has priority.

 

Public interest

 

Human Rights Act 1998 s 12(4) requires the court to take into account the public interest in publication of material. He considered this in the light of the factors set out in Axel Springer AG v Germany (2012) 55 EHRR 6, [2012] EMLR 15 (see especially [276]). Assessment of the public interest and its part in drawing the balance depended on the ‘good faith’ of the journalist and on the media providing ‘reliable and precise information’ ([288]).

 

The way BBC came by information about, and then reported, the investigation weighed against them. The public interest in knowing about investigations into sexual abuse did no help them in this case ([317]-[318]).

 

Finally, in defining how the balance fell, Mann J concluded that CR’s privacy rights outweighed BBC’s rights to freedom of expression ([315]); and the first point he identified was the ‘mud sticks’ point (so important, though not determinative, in the Khuja case (see above)). Damages have been partly defined. Special damages, and the extent to which the BBC and SYP may respectively be required to contribute to the damages awards, remain to be determined.

 

Privacy: lawyer bloggers and the family courts

 

On one level the case does no more than confirm that there is an expectation of privacy; and that where that expectation is disregarded by anyone exercising their competing freedom of expression, then damages may follow. That is relatively well-settled law (see eg Von Hannover v Germany – 59320/00 [2004] ECHR 294, (2005) 40 EHRR 1; Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457).

 

What Richards does is to pose the question for the press and for anyone else publicising information – such as family law bloggers, mentioned above – where an expectation of privacy arises: how far does freedom to publish (for individuals and for the media) protect the publisher from a damages claim where privacy is overridden (eg because a child’s name can be identified even though a case is reported with parties anonymised). And for the media, how far does the public interest defence (HRA 1998 s 12(4)) protect them from such a claim?

 

To what extent – just a thought… – should those who publish information (say) from a family court, insure against a claim from a parent, or a child? The privacy of the parent or child may be overridden by unwarranted publicity (eg in law reports or a blog)? Each has an expectation of privacy; and the private or lay observer, the academic or blogger does not have the public interest protection of HRA 1998 s 12(4). Does this leave each or all of them vulnerable to a claim in tort if they in any way infringe the expectation of privacy of the subject matter of what they publish?

Non-molestation and open court hearings

Is it the law that family court injunctions be heard in open court

 

In A child and the open justice principle I asked why the ‘child’ Charlie Pearce must – rightly, surely? – have his name published after his attempted murder trial (R v Pearce (Press Restrictions) Haddon-Cave J (7 December 2017); whilst, for example, the names be kept private of the parents of the unattractive stalking – and worse – mother and her cohabitant (‘Mr JM’) of 10 year-old T in Re T (A Child) [2017] EWCA Civ 1889 (23 November 2017). I continued: why are parents whose children, at their hands, protected sometimes from serious harm are not named; whereas the name of Mr Khuja (reported on BAILII as ‘PNM’), who investigated for serious crimes but not prosecuted for any offence is made public (Khuja v Times Newspapers Ltd [2017] UKSC 49.

 

Most startlingly, a man (say, ‘R’) can be brought anonymously (ie ‘in private’ or secretly) before the family courts for often dire forms of ‘molestation’ of their partner or children (Family Law Act 1996 (‘FLA 1996’) Pt 4); yet R, if prosecuted, will be dealt with in open court, on the same facts. Are the family courts, it might fairly be asked, trying to keep R’s behaviour secret? Is the ‘scourge’ (as Sir James Munby P has described it) of domestic violence and abuse to be dealt with behind closed family courts’ doors? If R breaches any injunction, this will be dealt with in public – though not in family proceedings – as a criminal offence FLA 1996 s 42A.

 

Family proceedings: hearings ‘in private’

 

The rule in family proceedings since April 2011 is said to be that all proceedings covered by Family Procedure Rules 2010 (‘FPR 2010’), save where otherwise ordered or the rules say something else, are to be in ‘private’ (r 27.10(1)). ‘In private’ means that ‘the general public has no right to be present’ (r 27.10(2)).

 

Two important common law principles are in play here:

 

  • That all hearings must be in open court (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; affirmed in eg European Convention 1950 Art 6.1), unless administration of justice or eg the welfare of children (as now summarised in Civil Procedure Rules 1998 (‘CPR 1998’) r 39.2(3)) requires confidential (or ‘private’?) hearing. What is meant by ‘private’ was explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565
  • The law cannot be changed by a rule save where statute permits: see eg Dunhill v Burgin (Nos 1 and 2) [2014] UKSC 18, [2014] 1 WLR 933 where Lady Hale said at [27]: That rules cannot ‘change the substantive law unless expressly permitted so to do by statute: see Re Grosvenor Hotel Ltd (No 2)[1965] Ch 1210’ (Senior Courts Act 1981 s 51(1) which permits rules to create substantive law on costs is an example of the exception).

 

The passage (italicised below) with which Lady Hale agreed was from Lord Denning MR where he said in Re Grosvenor Hotel, London (No 2) [1965] Ch 1210 at 1243 (of an attempt by rule-makers to change the law on public interest immunity):

 

The truth must be faced that, if this rule is within the powers of the Rule Committee to make, the hands of the judges are tied. They have no option but to act on [what] the Minister or of the permanent head of his department [says]. What then are the powers of the Rule Committee? They can make rules for regulating and prescribing the procedure and practice of the court, but they cannot alter the rules of evidence, or the ordinary law of the land. The law as to Crown privilege is not mere procedure or practice. It may perhaps be said to be a rule of evidence, but I would rank it higher. It is a principle of our constitutional law which is to be observed in the administration of justice, not only when a witness is called to give oral evidence, but also when a party is called upon to give discovery…. If this rule only states the existing law, there is no harm in it. But if it gives the government departments a veto on the production or inspection of documents — to a greater extent than that which is warranted by law — the rule is, in my opinion, bad.

 

Delegated legislation and Parliamentary will

 

At this point one judicial canard – with respect to, for example, MacDonald and Mostyn JJ – must be laid to rest. Both those judges have given judgments which suggest that Parliament have somehow ‘expressly provided’ for a change in the law from open court to private hearings for all family proceedings (save where for eg divorce hearings they are in open court) by the fact that the Lord Chancellor’s Family Procedure Rules Committee has changed the rules.

 

Such express provision of Parliament is not so. Like the majority of delegated legislation, rules are made under the negative resolution procedure (Courts Act 2003 s 79(6)). Only one set of such legislation has been queried by a member of either House in the last 37 years. Courts Act 2003 ss 75 and 76 make it clear that it is the rules committee which makes the rules, not – even under any constitutional law fiction – that Parliament has done the job.

 

Thus in HRH Louis Xavier Marie Guillaume Prince of Luxembourg, Prince of Nassau and Prince of Bourbon-Parma v HRH Tessy Princess of Luxembourg, Princess of Nassau and Princess of Bourbon-Parma & Anor [2017] EWHC 3095 (Fam), Macdonald J said of the rules on a number of occasions words to the effect of:

 

[87] … In this regard, I note again that Parliament has expressly provided in FPR r 27.11(1)(a) for the media to be excluded from hearings conducted for the purpose of judicially assisted conciliation or negotiation…

 

In Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam), [2016] 2 FLR 1 Mostyn J spoke of Parliament specifically maintaining proceedings in private (which seems to be in direct opposition to what Lord Denning MR said over 50 years ago: it is rule-makers not Parliament, who – in reality – make the rules):

 

[14] … Parliament when passing the rules specifically maintained these proceedings as private, and denied members of the public admission to them.

[15] … It is inconceivable that Parliament could have intended to destroy the effect of the implied undertaking when it allowed the press to observe these private proceedings as a watchdog….

 

Parliament did not even contemplate the ‘implied undertaking’. It is not mentioned in FPR 2010 at all. It is mentioned in rule form in CPR 1998 r 31.22 (intended to reverse the former rule in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338). Formally that rule does not apply in family proceedings. What precisely the ‘implied undertaking’, and whether Harman still applies, in family proceedings is muddled. Probably it is best described, for family proceedings, as in line with CPR 1998 r 31.22 (see discussion in Family Court Practice 2017 under FPR 2010 Pt 21).

 

Rule in Clibbery v Allan

 

Clibbery v Allan [2002] EWCA Civ 45, [200] Fam 261, [2002] 2 WLR 1511, [2002] 1 FLR 565 concerned whether Ms Clibbery could pass documents which she received from the respondent in proceedings under FLA 1996 Pt (an unsuccessful occupation order application), so far as they were not covered by the ‘implied undertaking’ not to release documents required to be produced under compulsion of (then) ‘discovery’. In a frequently cited case and agreeing in the outcome with Munby J below (Clibbery v Allan [2001] 2 FLR 819) the Court of Appeal (Dame Elizabeth Butler-Sloss P with whom Thorpe LJ agreed) held that though the hearing was in ‘private’ documents could be released by Ms Clibbery to the press. Anonymity seems not to have been in issue.

 

Dame Elizabeth explained the term ‘private’ – as distinct from open court and ‘secret’ or ‘confidential’ – as follows:

 

[19] … I am driven to recall Humpty Dumpty: ‘When I use a word – it means just what I choose it to mean – neither more nor less.’

[20]   I would therefore suggest that there are three categories of case, those heard in open court, those heard in private and those heard in secret where the information disclosed to the court and the proceedings remain confidential.

 

This tri-partite division remains the common law position in family proceedings; and on the Grosvenor Hotel principle it cannot be changed by delegated legislation. It is not altered by such cases as Appleton v Gallagher and Luxembourg v Luxembourg since these do not apply in the case of Family Law Act 1996 Pt 4.

 

Family Law Act 1996 Part 4, anonymity and ‘private court’ hearings

 

Subject to the ‘implied undertaking’ (or CPR 1998 r 31.22) point, the law would seem to be as in Clibbery v Allan. That as the Court of Appeal had explained in Hodgson v Imperial Tobacco Ltd [1998] 1 WLR 1056, ‘privacy’ means that, space permitting, the public are allowed into a court held in private (after all the words of r 27.10(2) do not prevent asking for permission: that is how it works with any situation where a person has no right, but can ask to come in, all the same).

 

Thus a frightened ex-partner or spouse can invite friends or family to come to court with her. They do not need special permission and the court can be asked to make room for them. Whether the press and others – eg to see how any successor to Prison and Courts Bill cl 47 works in practice – can come into court: that awaits another day, another discussion of this absurdly complex area of law. There seems to be no logic in the same facts being dealt with in ‘private’ (if not in secret) in a family court, but in open court in criminal proceedings; but logic does not rule family law when the open justice principle may apply.

 

And anonymity: surely that cannot truly be in question? The names of mother and Mr JM – especially in the Court of Appeal – should surely be public. To that extent, at least, family courts need not afford secrecy to those who molest or otherwise abuse their partners, children or other members of their family – unless publicity of their names might be jig-saw linked back to any children concerned.

Secrecy and disproportionality in the family courts

Attempts to ‘conflict out’ a party to family proceedings

 

In ZS -v- FS (Application to Prevent Solicitor Acting) [2017] EWHC 2660 (Fam) (24 October 2017) Williams J allowed a rich (I assume) Russian to spend two days arguing whether or not his wife (who may of not be FS: see later) should be allowed to use Ray Tooth (RT) whom she had chosen to instruct. In the meantime the ‘representative’ (OE) of the husband (say, ZS) said he had been to see RT, who could not remember the meeting. The judge assumed this was an attempt by ZS to ‘conflict out’ (a new verb?) FS so that she could not use Tooth to act for her. ZS’s application was unsuccessful.

 

The judge found OE (why ever was his case kept anonymous) to be ‘blasé about … accuracy in matters evidential’ (as the judge put it at [68]). Others might have said OE was lying. The case was heard in ZS’s absence, though with ranks of lawyers and OE present and a witness for ZS.

 

Why does all this matter? There is a relatively well-developed jurisprudence in relation to conflicts of interests if a professional who owes a duty to one client, and then takes on another with a conflicting interest. Like the accountants in Bolkiah v KPMG [1998] UKHL 52, [1999] 2 AC 222, solicitors may not do it. In the field of matrimonial litigation the issue has arisen, for example, in Davies v Davies [2000] 1 FLR 39, CA (another case in which RT could not remember a client) and Re Z (Restraining Solicitors from Acting) [2009] EWHC 3621 (Fam), [2010] 2 FLR 132 Bodey J. The subject is well-aired. So too is that of legal professional privilege which is the other aspect of the case which looks at law, though in connection with mostly well-known cases.

 

It is what the case does not look at – but perhaps should have done? – is what this note considers: first, the question of proportionality; and, secondly, at release of information to help us ‘make sense’ of the case.

 

Overriding objective; and what may have been left undone in ZS v FS

 

Since the end of the 1990s there has been a real concern amongst civil lawyers to keep cases within bounds (ie ‘proportionality’); and this expresses itself in what were intended in Civil Procedure Rules 1998 Pts 1 and 3 to be tighter case management rules, incorporated 12 years later into Family Procedure Rules 2010 (FPR 2010) Pts 1 and 4.

 

This application – it was an interim hearing which I assume ran under FPR 2010 Pt 18 – lasted two days. It engaged a QC per party each with a junior (with solicitors sitting behind, and as witnesses). It resulted in a 72 paragraph judgement as well as, within that and in addition, a three page chronology. The court fee for an application like this (if any was charged) this is £155 (ie the payment to the Treasury for all that, plus ushers, court staff, heating lighting etc).

 

The application – which would normally be dealt with on paper (perhaps with short submissions) by a district judge – was ‘a hearing other than the final hearing’ (FPR 2010 r 22.7), so ‘the general rule is that evidence at [such] hearings… is to be by witness statement unless the court, any other rule, a practice direction or any other enactment requires otherwise’. There is nothing in Williams J’s judgment to say he had considered r 22.7, and what he had concluded from r 22.7 to make him decide upon a full hearing on evidence being called.

 

We do not know why the case was not dealt with summarily on the papers. Outside London, you would expect a case like this to be dealt with by a district judge on the papers; with maybe short submissions only.

 

Proportionality and expeditious disposal

 

And then the overriding objective and proportionality in FPR 2010 terms, surely, comes into it? FPR 2010 r 1.1 requires that cases be dealt with ‘justly’; and this surely includes the court administrators and judge giving thought to others – others more deserving, if not so rich? – who might want a High Court judge’s time. ‘Dealing with a case justly’ (FPR 2010 r 1.1(2):

 

(2) … includes, so far as is practicable –

(a) ensuring that it is dealt with expeditiously and fairly;… and

(e) allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

 

True it is that the judge says (at [32]) he found it very helpful to hear ‘the parties give oral evidence’ (though did this include the husband? – I think not); but surely it must have been possible to devise a summary basis for the application and for it to be heard in a fraction of the 2 days and by a district judge? This is what the ‘overriding objective’ and its appeal to proportionality would anticipate.

 

We send children whose parent says they are ‘at grave risk [of suffering] physical or psychological harm’ (Hague Convention Art 13(b)) back to their former homes by a summary (ie no oral evidence) process. Children are rarely heard. An application like that of ZS should surely be treated as less important than the future of a child? After all, the worst would be that his wife could not have RT as her lawyer. Excellent though he may be (had the wife lost on this application), there are others…

 

Banks of lawyers – family lawyers who would know the rules for family proceedings – were involved in this case. Did any of them draw to the judge’s attention to FPR 2010 rr 1.1, 18.7 or 22.7? If they did, the judge does not say so.

 

Hearing documents and a ‘skull painting’…

 

The other unwitting aspect of the case is that of ‘hearing documents’. This is a well-trodden path. This case only shows the increasing need for it, if judges are to be able to keep their judgements relatively economical in length.

 

‘Transparency’ it has been suggested from judges at the highest level (see eg Lord Scarman in Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338’ Lord Bingham CJ in Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 and Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court (Article 19 intervening) [2012] EWCA Civ 420, [2013] QB 618) could – must, in the interests of openness – be increased by release of certain documents read by the judge outside the hearing. This would enable those who attend court or otherwise want to ‘make sense’ (Lord Scarman’s term) of proceedings (eg witness statements, skeleton arguments etc suitable anonymised).

 

The essential elements of ZS’s main application before the court (for a declaration of the validity of a Russian divorce) are said to have been ‘set out at B3’; and an unexplained ‘skull painting’ (referred to only once in the judgement ay [15]), are listed amongst a number of items which are intended show that ‘the meeting’ with OE took place. An understanding of the declaration application may be essential to an understanding of the judge’s decision; the ‘skull painting’ less so. The reader of the judgement (as would have been the case for anyone attending the hearing) can only make limited sense of it, without also being able to read certain basic documents.

 

What price proportionality?

 

The reality of transparency and the understanding of proceedings will be the greater if this issue – for courts which sit in private and in open court (as the example of the Guardian v Westminster case makes clear) – is looked at soon; and see Munby J in Norfolk County Council v Webster and Others [2006] EWHC 2898 (Fam), [2007] 2 FLR 415.

 

We shall never know what part ZS’s wealth had in the generosity of High Court time given to him. It certainly was not the difficulty of legal principle involved (despite the array of learned counsel deployed to argue it). Most of the cases cited are well-known; and do not form any express part of the judge’s decision-making (ie in one paragraph he merely lists the cases he has been referred to).

 

Secrecy over release of court documents is still not part of any ‘transparency’ procedure in any civil proceedings; and has nothing to do with a party’s money. However, it is a matter for thoughtful review of court process; and of anonymisation of read documents for private hearings.

 

And why anonymity?

 

Finally, it might be mentioned in passing: why was this case in private and why anonymity for the mysterious OE? The husband is found to have been ‘strategising and manoeuvring’ ([65]) over the case and aspects of OE’s evidence ‘are patently false’ ([68]). As Tomlinson LJ said in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 142 of a first instance decision not to publish:

 

[87] … It is I think unrealistic to assume that the revelation of dishonesty or other misconduct in the course of the litigation of a private dispute, particularly a matrimonial dispute, will necessarily attract any great interest from those not immediately affected by the outcome. I agree that dishonesty is not ordinarily entitled to confidentiality….

 

And any decision on anonymity is for the judge himself to address (R v Legal Aid Board exp Kaim Todner [1999] QB 966, [1998] 3 WLR 925, [1998] 3 All ER 541, CA), since the parties are likely to want to keep this sort of hearing private (Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416, Munby J).