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).

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