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

Hearing documents for non-parties

 

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

 

In this series, documents are categorised as:

 

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

 

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

 

Family proceedings courts

 

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

 

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

 

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

 

Release of documents in private family court hearings

 

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

 

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

‘12 Publication of information relating to proceedings in private

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

 

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

 

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

 

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

 

Documents for release under the court’s inherent jurisdiction

 

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

 

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

 

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

 

Why should material be released?

 

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

 

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

 

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

 

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

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

Hearing documents and Cape Intermediate v Dring

 

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

 

In this series, documents are categorised as:

 

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

 

Cape Intermediate v Dring: the case

 

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

 

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

 

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

 

The common law position after Cape Intermediate v Dring

 

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

 

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

 

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

 

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

 

Release of documents: inherent jurisdiction

 

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

 

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

 

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

 

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

 

Further documents

 

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

 

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

 

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

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

Attendance at private family hearings

 

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

 

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

 

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

 

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

 

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

 

Attendance at a family court: common law and rules

 

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

 

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

 

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

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

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

 

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

 

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

 

Court documents: towards a classification

 

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

 

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

 

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

 

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

 

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

 

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

 

Release of documents: the problem in the real world

 

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

 

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

 

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

 

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