Without prejudice rule immunity – unrevised

1        INTRODUCTION

Negotiation immunity

  • Without prejudice rule immunity is more generally known as without prejudice privilege. This book will avoid the term ‘privilege’, because privilege is generally reserved for confidential information which is specific to an individual person (and perhaps their representatives); whereas the ‘privilege’ which arises from the without prejudice rule is shared by the parties to the case (at least two people), perhaps one or more mediators, legal representatives and so on. It can be described as ‘privilege’ only to the extent that where the rule applies the content of negotiations and documents arising from them are excluded by operation of the rule from production in court at trial of a case.
  • By definition without prejudice immunity does not protect confidences as between the parties. It enables them by their implied agreement, to exclude certain information from the court.[1] This was explained by Jacobs LJ in Reed Executive plc and another v Reed Business Information Ltd and others [2004] EWCA (Civ) 887, [2004] 1 W.L.R. 3026:

[19] [It is submitted] that the exclusion of “without prejudice” negotiations is a rule of evidence not a privilege, relying on Rush & Tompkins Ltd v Greater London Council [1989] AC 1280. That case was not actually concerned with the difference. Nor, as I see, does it matter what label is attached to it. It is a rule of law. Normally “privilege” attaches to the rights of a single party, for instance a party has, and can waive, legal professional privilege. The detail of “without prejudice” negotiations has some analogy, the difference being that it is admissible if both parties “waive” their rights to non-disclosure….

Terminology

  • Mediation as a subject has developed a varied, and sometimes confusing, terminology. ‘Conciliation’,[2] the original term for the subject, was derived largely from the use of the word in the Finer report (Report of the Committee on One-Parent FamiliesJuly 1974 Cmnd 5629, Sir Morris Finer at (paras 4.85-4.90)). One of the earliest cases on mediation was Re D (Minors)(Conciliation: Privilege).[3] This word was thought too close to the word ‘reconciliation’. The term mediation tended to be used as time went on.
  • ‘Mediation’ is now subsumed in many instances by the term ‘alternative dispute resolution’; or the negative (and therefore uninformative) ‘non-court dispute resolution’ (Family Procedure Rules 2010 Part 3[4]. Meanwhile, ‘dispute resolution’ has now been adopted as another word – some might say a euphemism – for the civil litigation process. ‘Additional’ is a word used by Lord Bingham in the mediation context (‘additional dispute resolution’).[5]

2        WITHOUT PREJUDICE RULE

Use of the words ‘without prejudice’: rebuttable presumption as to privilege

  • Without prejudice immunity depends on the existence of genuine settlement negotiations: privilege will then attach to documents arising from those negotiations. Use of words such as ‘without prejudice’ on correspondence or at the outset of a meeting does not dictate whether a document or meeting is covered by the rule. Lord Hope explained this in Ofulue v Bossert:[6]

[2] Sometimes letters get headed ‘without privilege’ in the most absurd circumstances, as Ormrod J observed in Tomlin v Standard Telephones & Cables Ltd [1969] 1 WLR 1378, 1384. But where the letters are not headed ‘without prejudice’ unnecessarily or meaninglessly, as he went on to say at p 1385, the court should be very slow to lift the umbrella unless the case for doing so is absolutely plain…. Where a letter is written ‘without prejudice’ during negotiations with a view to a compromise, the protection that these words claim will be given to it unless the other party can show that there is a good reason for not doing so.

  • It is the circumstances and the intent of any meetings or the content of relevant correspondence which will dictate the immunity; not whether or not such words as ‘without prejudice’ or ‘off the record’ are used in some form. Are the negotiations part of a genuine attempt to settle anticipated court proceedings (considered further below)?
  • That said, the use of ‘without prejudice’ by the parties to a negotiation suggest that they intend that privilege should apply to their discussions. In Williams v Hull[7] Arnold J concluded, echoing the comments of Ormrod J and Lord Hope above, that if a letter is in fact headed ‘without prejudice’ there is a rebuttable presumption that it will be treated as being covered by the without prejudice rule:[8]

[18] It is well established that a communication which is not expressed to be “without prejudice” may nevertheless be protected by the rule, and that a communication which is expressed to be “without prejudice” may nevertheless not be protected by the rule. In South Shropshire District Council v Amos [1986] 1 WLR 1271 at 1277 Parker LJ said that, where a letter was marked ‘without prejudice’: ‘This prima facie means that it was intended to be a negotiating document.’… Nevertheless, I think it is correct to say that, if a letter is expressly stated to be ‘without prejudice’, that gives rise to a rebuttable presumption that the communication is a without prejudice communication within the meaning of the rule unless it is clear that the expression has been used with some other meaning or purpose.

Definition: privilege for admissions in negotiations

  • The without prejudice rule entitles a party not to produce in evidence to the court details of negotiations in relation to litigation, or anticipated litigation. It protects statements or offers made in the course of negotiations for settlement of a case from being put before the court as admissions against interest.
  • The general rule as to admissions is not only that they bind the maker of the admission; but they relieve the party who relies on the admission from further proof if the admission is of evidence relevant to the issue in a case. Contents of pleadings and court statements (eg of assets and other facts relevant to a case) are easy examples. Admissions may be made by parties or their representative in correspondence. These admissions can be relied on at trial.
  • By contrast where the without prejudice rule applies neither party can rely on admissions made by the other whilst the immunity covers them. This was explained by Lord Clarke (with whom the other law lords agreed) in the Supreme Court in Oceanbulk Shipping & Trading SA v TMT Asia Ltd and ors) [2010] UKSC 44 (‘Oceanbulk’) as follows:

[19] The approach to without prejudice negotiations and their effect has undergone significant development over the years. Thus the without prejudice principle, or, as it is usually called, the without prejudice rule, initially focused on the case where the negotiations between two parties were regarded as without prejudice to the position of each of the parties in the event that the negotiations failed. The essential purpose of the original rule was that, if the negotiations failed and the dispute proceeded, neither party should be able to rely upon admissions made by the other in the course of the negotiations. The underlying rationale of the rule was that the parties would be more likely to speak frankly if nothing they said could subsequently be relied upon and that, as a result, they would be more likely to settle their dispute.

  • Lord Clarke then referred to a variety of case law which had developed and understanding of the rule, each of which will be considered below:

[21] It is now well settled that the rule is not limited to such a case. This can be seen from a series of decisions in recent years, including most clearly from Cutts v Head [1984] Ch 920, Oliver J, Rush & Tompkins Ltd v Greater London Council [1989] AC 1280, Muller v Linsley & Mortimer [1996] PNLR 74, Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 and most recently Ofulue v Bossert [2009] UKHL 16, [2009] AC 990.

(1)       The public policy element

  • What is regarded as the public policy element to the without prejudice rule is to encourage parties to speak frankly in the hopes that they will settle their litigation. This was explained by Lord Griffiths in Rush & Tomkins Ltd v Greater London Council [1989] 1 AC 1280:

[23] …The ‘without prejudice’ rule is a rule governing the admissibility of evidence and is founded upon the public policy of encouraging litigants to settle their differences rather than litigate them to a finish. It is nowhere more clearly expressed than in the judgment of Oliver LJ in Cutts v Head Cutts v Head [(above) at] 306:

That the rule rests, at least in part, upon public policy:… that parties should be encouraged so far as possible to settle their disputes without resort to litigation and should not be discouraged by the knowledge that anything that is said in the course of such negotiations (and that includes, of course, as much the failure to reply to an offer as an actual reply) may be used to their prejudice in the course of the proceedings. They should, as it was expressed by Clauson J in Scott Paper Co v Drayton Paper Works Ltd (1927) 44 RPC 151, 156, be encouraged fully and frankly to put their cards on the table. … The public policy justification, in truth, essentially rests on the desirability of preventing statements or offers made in the course of negotiations for settlement being brought before the court of trial as admissions on the question of liability…

(2)        Contractual element

  • The contractual basis of the without prejudice rule rests on the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite their negotiations, a contested hearing ensues. In Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 (at 2442) Robert Walker LJ considered the general incidents of application of the rule, first as to public policy (above) and then by reference to its contractual qualities, as follows:

Its other basis or foundation is in the express or implied agreement of the parties themselves that communications in the course of their negotiations should not be admissible in evidence if, despite the negotiations, a contested hearing ensues.

  • The agreement may be waived by the parties (whether expressly or impliedly); but waiver can only be by both or all of the parties jointly (any mediator’s assent is not needed[9]). In the case of Calderbank correspondence (Calderbank v Calderbank[10]) the express waiver by one party is accepted as part of an implied term which is treated by both as excluding the immunity; but solely where the court may be asked to adjudicate on the specific question of costs.

Privilege: a fair trial and onus of proof

  • However, as with any form of privilege or confidentiality, if it is upheld, a successful claim deprives the court of relevant evidence and thus is in conflict with a party’s right to a fair trial.[11] In all other circumstances an admission openly made as between the parties will bind the party who makes it.
  • As with other forms of privilege the onus of proof of application of the without prejudice rule in each case – whether of privilege or confidentiality – will be upon the person asserting the immunity. Lord Edmond-Davies put the point in Waugh v British Railways Board [12] as follows: ‘It is for the party refusing disclosure to establish his right to refuse’. The general rule – as ever – is that all material evidence should be available for inspection.

 

3        LITIGATION IN PROSPECT

Court proceedings, or ‘a real dispute capable of settlement’

  • The without prejudice rule attaches only where there are court proceedings in existence, or there must be ‘a real dispute capable of settlement’. The principle that there must be a dispute and an attempt to resolve it was explained by Lord Mance in Bradford & Bingley Plc v Rashid[13] as follows:

[81] …The existence of a dispute and of an attempt to compromise it are at the heart of the rule whereby evidence may be excluded (or disclosure of material precluded) as ‘without prejudice’. This is clear from the passage … from Lord Griffiths’ speech in Rush & Tompkins Ltd v Greater London Council [(above) and there quoted in full]: ….The rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise….

  • In what circumstances can it be said that proceedings are genuinely anticipated? When can it be said that there is a ‘real dispute capable of settlement’ and therefore of engaging the rule? Sometimes this will be obvious. Two people who have hitherto lived together as a couple in a more or less harmonious relationship, do not normally meet and discuss their future financial arrangements with a mediator unless at that stage one or both of them think their relationship or marriage is at an end. It can be assumed, unless the contrary is proved, that there is between them a dispute which needs resolving, and which is capable of settlement.
  • By contrast, another couple, who are still together, discuss the value of their house in circumstances where it is agreed between them that it will be sold. Figures and other terms for the sale are agreed, and an estate agent is instructed. Later, but before the house has been sold, the same couple become involved in matrimonial proceedings which also concern the property. The question may then arise as to whether discussions about the original sale are covered by the without prejudice rule. Answers to this question and that in the previous paragraph will be considered at 4.## below.

Litigation: how proximate?

  • In most cases it will be relatively clear whether litigation is in prospect: for example, where a couple separate and go to mediation to discuss settlement. By contrast, there may be many commercial arrangements which involve relatively bruising negotiations but where litigation is not necessarily in prospect. This question arose in Framlington Group Ltd & Anor v Barnetson.[14] Mr Barnetson (B) claimed damages against Framlington for wrongful dismissal from its employment as its chief operating officer and for other alleged breaches of his contract of employment. Information as to the course of negotiations which preceded and followed the dismissal was detailed in B’s statement in later court proceedings arising from the parties’ dispute. Framlington sought to have this information excluded so far as it contained details of the parties’ negotiations.
  • The outcome of the negotiations, as Auld LJ held, was that the truth of the parties’ positions was that ‘they were already well and truly at odds as to [Mr Barnetson’s] contractual entitlement’. What followed ‘amounted to wrangling over the terms of that entitlement, not discussions as to variation of them’ as the judge below had found. The Court of Appeal was therefore confronted by:

[38] …negotiations arising out of a dispute as to Mr Barnetson’s contractual entitlement on his early dismissal, all against the backcloth of potential litigation if they could not resolve the dispute by compromise.

‘Contemplation of litigation’

  • Auld LJ looked at the question which the court must ask as: ‘how proximate, if at all, must unsuccessful negotiations in a dispute leading to litigation be to the start of that litigation, to attract the “without prejudice” rule’ (para [32])? This was a factor; but proximity must also depend on the nature and subject matter of the dispute, he said:

[34] The critical feature of proximity for this purpose, it seems to me, is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. Would they have respectively lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid the need to go to court over the very same dispute? On that approach, which I would commend, the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree.

  • In Portnykh v Nomura International plc [15] considers the proximity argument where it was said by one party that the particular negotiations – where a former employee made concessions in relation to his employment in redundancy negotiations – are not in connection with a dispute or ‘potential dispute’. The judge held that the redundancy negotiations were part of a continuum which included the later tribunal proceedings, Therefore, the earlier redundancy negotiations, including email correspondence and admissions made in the course of them, were immune from production in the later tribunal hearing. They could not be relied upon in any way by Dr Portnykh’s former employers.

Family proceedings

  • The two examples at 4.## and 4.##, considered in the light of what Auld LJ says on the subjects of proximity and contemplation of proceedings in Framlingham, can be answered as follows:
  • If the first relationship later fails – perhaps four or five years (or more) after the mediation, the discussions would remain confidential, and almost certainly covered by privilege, on the ground that the parties would only have gone to mediation because they thought their relationship was at an end. They would come within Auld LJ’s comment: that the crucial consideration would be whether in the course of negotiations the parties ‘contemplated or might reasonably have contemplated litigation if they could not agree’ (para [34]).
  • If the second relationship fails, both parties would be entitled to say that litigation was not in prospect when they agreed the sale of their house, and the conditions on which it should be sold. On this basis, and if the sale arrangements were relevant to an issue before the court, evidence as to the detail of their negotiations would be admissible in subsequent financial order proceedings.

4        PROCEDURE FOR DISCLOSURE AND AGREEMENTS

Disclosure under the rules

  • The fact of a party believing that documents are covered by the without prejudice rule does not exempt that party from disclosure (in the sense that a party ‘discloses a document by stating that a document existed’: CPR 1998 r 31.2, FPR 2010 r 21.1(1)[16]); though most of the documents and information (content of discussions etc) will, by definition, be common to both parties to proceedings. (Different rules apply where a stranger to the original proceedings applies to override the confidentiality in without prejudice documents: see discussion of Muller v Linsey (below)[17]). Without prejudice rule documents will be immune from production unless the court orders production (eg because one party persuades the court that an exception to the rule applies[18]); or it is held that privilege does not in any event apply.

Agreements in without prejudice correspondence

  • If a party wishes to allege that there is an agreement between him/her and the respondent, the general rule of pleading (summarised in CPR 1998 PD16A paras 7.3 to 7.5[19]) is that the agreement must be specifically pleaded. The person who asserts the agreement must set out its terms in court documents. This gives rise to tow issues for disposal by the court and depending on whether correspondence is said by one party to be covered by without prejudice immunity:
  • If all the correspondence the court will be confronted with a construction issue: does the correspondence and other dealings amount to a contract?[20]
  • If correspondence is all covered by the without prejudice rule immunity, has agreement been reached so that the rule no longer applies.[21]
  • Where it is said that the agreement derives from without prejudice correspondence the party alleging the agreement will want to produce the material, marked without prejudice’ in court. The documentary evidence is likely to take one of two forms (particular rules apply in matrimonial and children proceedings which are dealt with separately[22]):
  • The agreement will have been reached in the course of pre-issue discussions, and will therefore take the form of a construction issue (CPR 1998 Part 8) where the court is asked to construe whether there is an agreement between the parties on the basis of the correspondence disclosed.
  • The agreement will have been reached in the course of issued proceedings. The application for a finding as to whether there is a concluded agreement will therefore be interim to those proceedings (CPR 1998 Part 23). Particular care will need to be exercised with the court administration, since if the application fails documents still covered by privilege will need to be removed from the court file.
  • The principles in relation to what follows apply whether the agreement is reached between the parties alone (subject to any difficulties there may be in actually defining – construction of terms – what was agreed), in solicitors’ correspondence or following mediation or other dispute resolution. As will be seen[23] a mediator, and perhaps a judge as mediator at a Financial Dispute Resolution appointment,[24] is compellable to give evidence in relation whether there was an agreement and as to its terms.

Withholding inspection

  • The procedure by which a claim that without prejudice rule immunity does not apply is made under CPR 1998 r 31.19(4) (or FPR 2010 r 21.3(4)) following the procedure in West London Pipeline and Storage Ltd v Total UK Ltd.[25]
  • Where as in Williams v Hull (above) or Brown v Rice and anor,[26] the content of the without prejudice correspondence is the issue, then plainly it must be dealt with as a preliminary issue. The judge must consider the without prejudice correspondence since it is only by so doing that s/he can determine whether the immunity applies: was there impropriety (Williams v Hull); or was there a concluded agreement (Brown v Rice)? In both cases, for different reasons the immunity remained. And if it is held that the immunity remains then the judge who has made that decision cannot try the final issue (unless both parties agree).

Pleading the agreement

  • Specific provision for pleading the existence of an agreement in civil proceedings is set out in CPR 1998 PD16A paras 7.3 to 7.5. Where the alleged agreement has arisen in pre-proceedings correspondence and one party seeks to resile from what the other believes to be an agreement, application can be made (CPR 1998 Part 8) for the court to construe whether there was an agreement; and if so that agreement can then be enforced in ordinary contract law terms.
  • This principle applies equally to an agreement reached between any couple living together (ie whether married or not). However, special rules apply (see part (4) below) to married couples. Certainly if an unmarried couple, with or without children, reach an agreement as to their disposal of their former home (or other issues) then if that is recorded in without prejudice correspondence it will be capable of being construed as an enforceable agreement (subject to any questions which arise as to the agreement being in writing under Law of Property (Miscellaneous Provisions) Act 1989 s 2(1)[27]).
  • It may be said that agreement as to the outcome of a dispute has been reached or (as in Tomlin v Standard Telephones[28]) that there was agreement as to a single issue to which both should be held. In either event the application is under CPR 1998 Part 23 or FPR 2010 Part 18 for consideration of the agreement as a preliminary issue.

5       ADMISSIONS AGAINST INTEREST

Admissions in the course of proceedings

  • Admissions against interest are the mainstay of the without prejudice rule. It enables a party litigation or anticipated litigation to make admissions against interest which cannot then later be adduced later in any proceedings if mediation or other attempts at settlement (eg in solicitor’s correspondence) fail. It is therefore necessary to briefly look at the rules of evidence in relation to admissions and then to look at those rules in the context of the without prejudice rule.
  • In the course of proceedings a party may admit facts. Subject to any later amendment or withdrawal of that admission, the party making the admission will be bound by it. If a party has admitted a fact there is then no need for another party to prove that fact insofar as it is otherwise relevant to an issue between the parties. A simple example of an admission occurs in divorce proceedings where the rules provide that signature on an acknowledgement of service by the respondent to an adultery petition (MCA 1973 s 1(2)(a)) constitutes that respondent’s admission of adultery (FPR 2010 r 7.12(5)) sufficient for the petitioner to obtain a decree nisi. The admission in the acknowledgement of service provides the evidence against the respondent, and it needs no corroboration. Similarly parties to financial remedy proceedings are required in Form E ### to state an estimate of the value of the freehold property they require as part of financial provision###. That is an admission expressed as a need, which could have repercussions for the spouse who makes it where, for example, the other spouse is proved to have more substantial assets than was thought when the admission was made.[29]
  • Silence cannot be treated as an admission. If an assertion made by the claimant is not expressly denied by the respondent this cannot be treated as an admission by that respondent of a fact in issue. Notice to admit such a fact must formally be given.

Notice to admit facts or documents

  • FPR 2010 rr 22.15 and 22.16 adopts the wording of CPR 1998 rr 32.19 and 32.20 and FPR 2010 r 22.15 and 22.16 make formal provision for notices to admit facts and to admit the authenticity of documents (or to produce documents).This deals with admissions as to two separate evidential matters:
  • Facts may be in issue; but one party believes the other has the evidence or ability to admit to their truth. This will overcome the need for the serving party to prove those facts.
  • Deemed admission of facts in a disclosed document; unless a counter-notice requiring proof is served.
  • Thus, where a party gives notice to admit a fact and the other party does not respond, it is then necessary for the serving party to prove the matters referred in the notice if they remain relevant to an issue for trial.

Admissions against interest

  • The extent to which an admission against interest is the main component in the without prejudice rule is stressed by Robert Walker LJ in Unilever plc v The Procter & Gamble Co[30] (‘Unilever’, and a case which is significant in the context of the without prejudice rule) (emphasis added):

[35] …. the without prejudice rule is founded partly in public policy and partly in the agreement of the parties. They show that the protection of admissions against interest is the most important practical effect of the rule. But to dissect out identifiable admissions and withhold protection from the rest of without prejudice communications (except for a special reason) would not only create huge practical difficulties but would be contrary to the underlying objective of giving protection to the parties … to speak freely about all issues in the litigation ….

[36] Parties cannot speak freely at a without prejudice meeting if they must constantly monitor every sentence, with lawyers … sitting at their shoulders as minders.

‘Content of discussions’

  • The subject of the without prejudice rule has been considered by the House of Lords and the Supreme Court twice in recent years (Ofulue v Bossert and Oceanbulk). Judges remain committed to the principle that only what is necessary should be done to restrict the immunity provided by the rule. It is essential that all possible must be done to encourage parties to speak freely, and in the hopes that settlement can thereby be achieved.
  • Just as without prejudice immunity covers negotiations which are part of mediation and other forms of dispute resolution, so too it extends ‘much more widely to the content of discussions’ as a whole, as Lord Clarke explained in Oceanbulk where he said, referring again to Unilever:

It is therefore sufficient to quote [Unilever to show] that the rule is not limited to admissions but now extends much more widely to the content of discussions such as occurred in this case. He said this at pp 2443H-2444C:

‘Without in any way underestimating the need for proper analysis of the rule, I have no doubt that busy practitioners are acting prudently in making the general working assumption that the rule, if not ‘sacred’ (Hoghton v Hoghton (1852) 15 Beav 278, 321), has a wide and compelling effect. That is particularly true where the ‘without prejudice’ communications in question consist not of letters or other written documents but of wide-ranging unscripted discussions during a meeting which may have lasted several hours.

‘At a meeting of that sort the discussions between the parties’ representatives may contain a mixture of admissions and half-admissions against a party’s interest, more or less confident assertions of a party’s case, offers, counter-offers, and statements (which might be characterised as threats, or as thinking aloud) about future plans and possibilities….’

‘Ability to speak freely’ and open discussions

  • There will be cases where the court must decide whether the rule applies at all. The importance of the ability of parties to speak freely in negotiations is emphasised by Unilever (see comment of Robert Walker LJ above); but this must be kept within the limits of the terms of the negotiations. In R v K (A),[31] a husband (K) filed his Form E. After he had filed it his Form E K and the respective firms of solicitors met later in the same day. The solicitors’ accounts of the meeting differed; but the judge found that the early part of the meeting was deliberately intended to be open. Thus it was not covered by any form of privilege from later disclosure in the intended criminal proceedings.
  • Accordingly the Court of Appeal held that the without prejudice rule and Robert Walker LJ’s comments as to dissecting ‘out identifiable admissions [so as to] withhold protection’ from other parts did not assist K:

[49] We accept that if parties to a dispute have entered into “without prejudice” communications with a view to compromising their differences, the protection which normally attaches to such communications covers whatever is said in the course of them, including admissions, and that it is not permissible to isolate some parts and treat them as falling outside that protection. However, that is not this case. There is nothing to prevent parties from expressly agreeing that some communications are “on the record”—that is, unprotected—and others are not. The question the judge had to decide was whether the first part of the meeting [was] held under the cloak of without prejudice protection. Although the notes could be clearer in some respects, we are left in no doubt that it was understood by all present that the first part of the meeting was intended to be “on the record”, in the sense that there were to be no restrictions on the subsequent use that either party could make of what was said, and that the “without prejudice” protection was invoked immediately before Sears Tooth put forward initial proposals with a view to reaching a compromise. We therefore agree with the judge that the first part of the meeting was not held on a “without prejudice” basis.

6       TERMINATION OF PRIVIELGE

Termination or exception of privilege

  • Other than by waiver, when (if at all) does without prejudice immunity, and any confidentiality arising from the immunity, come to an end? The privilege from disclosure of without prejudice documents operates only in respect of production in court, and in respect of deployment in any proceedings which may arise following or alongside the negotiation. Two questions follow from this:
  • Once the entirety of the proceedings are at an end then as between the parties and the court it could be argued that there is no longer any question of privilege from production. To what extent does the confidentiality in the documents remain following conclusion of the proceedings by a court order, so that others can still be prevented from seeing them?[32]
  • The privilege or immunity may also overridden by law in a number of circumstances explained below.

Conclusion of proceedings

  • The conclusion of proceedings (at (1) in the previous paragraph) deals with three sets of circumstance as to when the privilege may be said to subsist or not:
  • Continuation of the immunity as between the parties;
  • Continuation as between one party to a settlement (A) and another party in proceedings (B) arising out of the same dispute where one party to the settlement (A) is a party in the separate proceedings with (C); and
  • Reliance on the privilege in separate proceedings where one party to the settlement is a party in the separate proceedings.
  • In the case of (1) and (3) it may be that the without prejudice rule immunity does not survive; whereas in (2) it does.

Continuation of immunity as between the parties

  • Where a court order is made disposing of all issues between parties then, as between the parties themselves (not third parties to proceedings, see (2) below), the question arises as to whether the immunity arises; or, for example, can one party rely on otherwise immune documents in support of a claim for costs (Calderbank correspondence or not)? When there is an issue before the court as to whether without prejudice communications have resulted in a concluded agreement, evidence of those communications is admissible: Tomlin v Standard Telephones.[33] This was explained by Mr Stuart Isaacs QC (deputy High Court judge) in Brown v Rice:[34]

[10] … when the issue is whether without prejudice communications have resulted in a concluded settlement agreement. This is for the understandable reason that without considering the communications in question it would be impossible to decide whether there was a concluded settlement agreement or not, see Tomlin [(above)) at 1382G and 1386A].

  • If the immunity becomes redundant once there is a court order which disposes of all issues, there is no need for argument about whether the privilege from disclosure exists. Without subsisting proceedings there is no need for the immunity to be continued. Parties can then refer to the position they adopted in mediation or other forms of negotiation when the separate issue of costs comes to be decided.

Confidentiality and without prejudice rule immunity

  • But what of the confidentiality which exists in the negotiations and any documents arising from them? Communications hitherto covered by the without prejudice rule remain confidential as between the parties and any third party (such as a mediator), perhaps indefinitely (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J, considered fully at 9.** etseq below). The privilege can only exist as between the parties to the negotiations and the court. Once all court proceedings – the main issue and any third party or intervener claims (as in Rush & Tompkins) – are at an end, or are disposed of by the court (Ofulue v Bossert); or once agreement has been reached in the negotiations, privilege goes (or ceases to be applicable). Meanwhile confidentiality remains.

6        THE OVERRIDING OF WITHOUT PREJUDICE IMMUNITY

Without prejudice privilege: ‘the ability to speak freely’

  • In Unilever plc v The Proctor & Gamble Co [1999] EWCA Civ 3027, [2000] 1 WLR 2436 Robert Walker LJ (as Lord Walker the same judge sat in the House of Lords in Ofulue v Bossert and in the Supreme Court in Oceanbulk) sets out what he terms the ‘most important instances’ (at para [24]) where the without prejudice rule may be held not to apply. Evidence, otherwise thought to be immune from production, may be admissible in subsequent proceedings.
  • The list set out by Robert Walker LJ in Unilever in the Court of Appeal was cited with approval by the House of Lords/Supreme Court in both Ofulue v Bossert and in Oceanbulk Shipping, and is as follows:
  • Where the issue is whether without prejudice communications have resulted in a concluded compromise agreement, those communications are admissible (see eg Tomlin v Standard Telephones and Cables [1969] 1 WLR 1378).
  • Evidence of the negotiations is admissible to show that an agreement arising from negotiations ‘should be set aside on the ground of misrepresentation, fraud or undue influence’.
  • Even if no compromise results ‘a clear statement which is made by one party to negotiations, and on which the other party is intended to act and does in fact act, may be admissible as giving rise to an estoppel’ (see eg Neuberger J in Hodgkinson & Corby v Wards Mobility Services [1997] FSR 178 at 191).
  • One party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (see eg Williams v Hull (below)).
  • ‘Evidence of negotiations may be given (for instance, on an application to strike out proceedings for want of prosecution) in order to explain delay or apparent acquiescence.’
  • In Muller & anor v Linsley & Mortimer [1994] EWCA Civ 39, [1996] PNLR 74 (see also above at 8.**) one of the issues between the parties was whether the claimant, in an action against his former solicitors, had acted reasonably to mitigate his loss in his conduct and conclusion of other negotiations and compromise of proceedings. Hoffmann LJ treated that issue as one unconnected with the truth or falsity of anything stated in the negotiations, ‘and as therefore falling outside the principle of public policy protecting without prejudice communications.’
  • The exception for an offer expressly made ‘without prejudice except as to costs’ was clearly recognised by this court in Cutts v Head, and by the House of Lords in Rush & Tomkins, as based on an express or implied agreement between the parties (and see Calderbank v Calderbank considered at 8.** below).
  • Privilege in relation to ‘matrimonial conciliation’ (described by Robert Walker LJ as ‘That hybrid species of privilege’ will be considered in the next chapter).

Without prejudice correspondence: evidence of agreement

  • Where one party asserts that correspondence, otherwise covered by the without prejudice rule, is evidence of an agreement then – if that party is correct – the immunity from production of the evidence to the court goes (Tomlin v Standard Telephones and Cables (above)). The correspondence, formerly immune from production, becomes the evidence (or part of it) for the agreement between the parties. The alleged agreement in Tomlin v Standard Telephones was that in correspondence – all marked ‘without prejudice’ – the parties had agreed that, whatever the outcome of the damages claim in terms of quantum, the plaintiff should receive fifty per cent. A hesitant Court of Appeal (Ormord LJ dissenting) held that this is what had been agreed. Dankwerts LJ (with whom Sir Gordon Wilmer agreed) reasoned the agreement point as follows (at 1382-1383):

… In the course of his judgment, however, Lindley LJ [in Walker v Wilsher (1889) 23 QBD 335] said at 337

‘What is the meaning of the words ‘without prejudice’? I think they mean without prejudice to the position of the writer of the letter if the terms he proposes are not accepted. If the terms proposed in the letter are accepted a complete contract is established, and the letter, although written without prejudice, operates to alter the old state of things and to establish a new one.’

That statement of Lindley LJ is of great authority and seems to me to apply exactly to the present case if, in fact, there was a binding agreement, or an agreement intended to be binding, reached between the parties, and, accordingly, it seems to me that not only was the court entitled to look at the letters, though they were described as ‘without prejudice’, but it is quite possible (and, in fact, the intention of the parties was) that there was a binding agreement contained in that correspondence.

  • An example of the point is provided by Admiral Management Services Ltd v Para-Protect Europe Ltd & Ors [2002] EWHC 233 (Ch), where Stanley Burnton J considered a claim on a preliminary issue as to interpretation of the terms of a paragraph in a Tomlin order otherwise agreed between the parties. Of this he held as follows:

[71]…when it is alleged that a settlement has been concluded as a result of without prejudice communications, those communications are admissible as to the issue whether a settlement has in fact been concluded: Tomlin v Standard Telephones [1969] 1 WLR 1378. Similarly, in the case of a settlement made in without prejudice correspondence, the correspondence, although privileged when sent and received, is admissible in the event of a dispute as to the terms and meaning of the settlement, on the same basis that any correspondence in which a contract is made is admissible.

  • Whether the same will be said of the content of mediation negotiations where a memorandum of understanding is concluded but has not been advised upon by lawyers, remains to be seen. The likelihood is that this will depend upon at what time it is held that the agreement becomes executory.[35]

Without prejudice used to ‘cloak perjury, blackmail or other unambiguous impropriety’

  • Without prejudice rule documents cease to be immune from production if they are established as being used a ‘cloak for perjury, blackmail or other unambiguous impropriety’. Robert Walker LJ’s list (in Unilver at 2444) describes this heading as:

Apart from any concluded contract or estoppel, one party may be allowed to give evidence of what the other said or wrote in without prejudice negotiations if the exclusion of the evidence would act as a cloak for perjury, blackmail or other ‘unambiguous impropriety’ (the expression used by Hoffmann LJ in Forster v Friedland (unreported), 10 November 1992; Court of Appeal (Civil Division) Transcript No. 1052 of 1992).

  • The impropriety allegation was raised as a preliminary issue in Williams v Hull.[36] The main claim was by former cohabitants who sought a declaration from the court as to their beneficial interests in their jointly owned property under Trusts of Land and Appointment of Trustees Act 1996. Their contributions to the purchase price had been such that Ms Williams (W), who was herself a solicitor, had paid appreciably more than Mr Hull (H). The couple had signed a TR1 (transfer of title) which appeared to have been altered after its execution by them. This was the document which might be treated as defining their beneficial entitlements.
  • W sought an order that privilege did not attach to a letter written to her by H. This letter was one in a series of three written by the couple to each other before the issue of proceedings. W wanted to rely on the second letter from H to her and headed by him: ‘Subject to Contract and Without Prejudice’ where he made specific reference to his then estimate of the valuation of, and of his share in, the property. W wanted H’s letter admitted because, she said, the letter was not covered by the without prejudice rule which. To allow it to remain immune would act as a ‘cloak for perjury’ by H. She argued that H’s pleaded case – that he was entitled to an equal share in the property with her – was contradicted by the letter.
  • Arnold J held that there might be inconsistencies between H’s pleaded case and what was asserted in the letter, and this might lead ultimately to an allegation of perjury. However, such an allegation at a preliminary stage in the proceedings was not enough to override the immunity to production of the letter at this stage. It must remain covered by without prejudice rule immunity from production.

Facts admitted in negotiations, later denied

  • The facts admitted basis for exception from without prejudice rule immunity applies in any civil proceedings. Family financial remedy proceedings provide an easy example, where (say) a party has admitted facts in the course of negotiations, but denies one or more of those fact when it comes to a final hearing. For example, in negotiations between solicitors, in collaborative law sessions or in mediation a spouse (A) admits to possession of a particular asset; but when settlement does not follow he will not admit the existence of the asset in sworn or other court documents.
  • A preliminary issue application can be made to establish whether the admission was made and whether A’s admission is covered by privilege given that, on the face of it, it is covered by the rule against privilege being used as a ‘cloak for perjury, blackmail or other “unambiguous impropriety”’.[37] A mediator may find him/herself called to give evidence if an admission has been made and only the mediator can corroborate the claimant spouse’s evidence on this issue. The same would apply to a district judge at a FDR.[38]

6        WAIVER OF WITHOUT PREJUDICE IMMUNITY

Joint waiver

  • Without prejudice immunity can only be waived by the person or persons who are entitled to immunity as a result of it. Without prejudice immunity is joint as between the parties to the negotiation. It can only be waived by them jointly (save in the case of the Calderbank reservation on costs, where the right to refer to negotiation can be retained: privilege can be unilaterally waived on that issue alone). As between the client (the parties to the mediation) and the mediator, the privilege is always that of the client jointly with other parties to the mediation.
  • If there is a negotiated agreement, the terms of that and background facts on which it is based or to determine whether it is an agreement can be adduced in evidence a subsequent trial. To that extent the immunity no longer applies where it the issue before the court.[39]

7        DUTY TO DISCLOSE TO THIRD PARTIES

Duty to anyone funding the litigation

  • A party to litigation, who is funded by a third party (but not their opponent: eg under Matrimonial Causes Act 1973 s 22ZA (legal services order)), may find themselves under an requirement to provide information about settlement as part of any agreement between a client and the lender; just as a company may need to inform its auditors of the state of any outstanding litigation (and perhaps the likelihood of settlement) when accounts are prepared.
  • As between the loan company and its borrower it is entirely understandable that this condition should be required (see similar provision for legal aid below); but strictly speaking the information in, and the documents concerned, are subject to the without prejudice rule. It could be said that the other party’s knowledge of the loan would imply a term into the contractual basis of without prejudice correspondence

Statutory requirement to disclose

  • Civil Legal Aid (Procedure) Regulations 2012 reg 40 imposes on the lawyer for the person with the benefit of legal aid certificate a number of duties concerning the conduct of their case, to Legal Aid Agency (‘LAA’). Some of this information, especially, if part of negotiations or marked ‘without prejudice’, may be confidential as between the client and other parties to the proceedings. A similar provision has existed in previous legal aid delegated legislation (eg Civil Legal Aid (General) Regulations 1989 imposed on the lawyer a duty to ‘make a report’ but only ‘where the assisted person declines to accept a reasonable offer of settlement or a sum which is paid into court’).
  • Civil Legal Aid (Procedure) Regulations 2012 reg 40(3)(a) provides as follows:

(3) The provider must report to the Director—

(a)a refusal by the individual (or the person acting on behalf of the individual) to accept—

(i)an offer to settle;

(ii)an offer to mediate any issue in the proceedings;

(iii)an offer to use an alternative dispute resolution procedure; or

(iv)any other offer of settlement which the provider considers to be reasonable;

  • The vires for this provision must be regarded at least as questionable. There is no obvious power in Legal Aid Sentencing and Punishment of Offenders Act 2012, the enabling statute, to permit regulations to provide – as here – for another individual’s, the offeror’s, confidentiality to be overridden. (Few offerors are likely, in practice, to object: but that is a separate point.) The nearest the 2012 Act comes to considering privilege in the context of legal aid is in s 28(1) which provides as follows:

(1)The fact that services provided for an individual are or could be provided under arrangements made for the purposes of this Part does not affect—

… (b) any privilege arising out of that relationship, or…

except to the extent that regulations provide otherwise.

  • The privilege here is that which arises out of the client relationship, that is legal professional privilege, and cannot be said to apply to any privilege arising from the without prejudice rule which is derived from the relationship of the parties to the courts. (No provision is made in regulations to override the privilege which attaches to any advice given by a lawyer to his/her client on the offers etc referred to in reg 40(4)(a), should the Legal Aid Agency as to have information as to that advice.)

Production of without prejudice correspondence at the FDR appointment

  • Requirement of FPR 2010 r 9.17 (under the heading: ‘The FDR [Financial Dispute Resolution] appointment’ is as follows as to the requirement that the parties ‘file’ (ie in effect, produce to the court) any negotiation correspondence for the purposes of the FDR appointment. This requirement is imposed without a nod (save at the end of s-s (4)) to the existence of any privilege in the documents, which would exist if they are part of settlement negotiations and contain admissions against interest (which is inevitable if serious proposals are put forward).

(3) Not less than 7 days before the FDR appointment, the applicant must file with the court details of all offers and proposals, and responses to them.

(4) Paragraph (3) includes any offers, proposals or responses made wholly or partly without prejudice(GL), but paragraph (3) does not make any material admissible as evidence if, but for that paragraph, it would not be admissible.

(5) At the conclusion of the FDR appointment, any documents filed under paragraph (3), and any filed documents referring to them, must, at the request of the party who filed them, be returned to that party and not retained on the court file.

Warnings

Some of this, esp towards teh end, is in note form

= text to be provided

E&OE to 15 September 2015

© David Burrows, Burgundy, 15 September 2015

[1] At 4.## etseq

[2] Per eg Bristol Courts Family Conciliation Service (1978)

[3] [1993] 1 FLR 932, CA

[4] See Ch # for discussion of this terminology and of FPR 2010 Part 3

[5] The Rule of Law Tom Bingham, Penguin (2010), at Chapter 8 (entitled ‘Dispute Resolution’) at p 86

[6] [2009] UKHL 16

[7] [2009] EWHC 2844 (Ch); and see further 4’##

[8] The point is affirmed also in Avonwick Holdings Ltd v Webinvest Ltd & anor [2014] EWHC 3322 (Ch) where David Richards J held: ‘In common with Arnold J in Williams v Hull [2009] EWHC 2844 (Ch) at [18] … I take the view that the correct approach is that stated by Lord Mance [in Bradford & Bingley Plc v Rashid [2006] UKHL 37, [2006] 1 WLR 2066]. Marking a document as “without prejudice” is a strong indication that there is a genuine dispute and a genuine attempt to settle the dispute, but it is not conclusive.’

[9] Discussed at #.##

[10] [1976] Fam 93, see #.##

[11] Privilege and a fair trial is considered at #.##

[12] [1980] AC 521 at 541

[13] [2006] UKHL 37,  [2006] 1 WLR 2066

[14] [2007] EWCA Civ 502, [2007] 1 WLR 2443

[15] [2013] UKEAT 0448-13-0511, HHJ Hand QC (sitting alone)

[16] For disclosure see 2.## etseq

[17] 4.##

[18] 4.##

[19] See further at #.##

[20] See eg [Blair case]

[21] Tomlin v Standard Telephones [1969] 1 WLR 1378

[22] 4.##

[23] 4.##

[24] 4.##

[25] [2008] EWHC (Comm) 1729 Beatson J; considered fully in Practice of Family Law: evidence and procedure, David Burrows, Jordans 2012 at #.##

[26] [2007] EWHC Ch 625

[27] Considered fully ay 5.##

[28]  [1969] 1 WLR 1378

[29] This may not matter; but better advice would be to refuse to answer that question till disclosure is complete

[30] [1999] EWCA Civ 3027, [2000] 1 WLR 2436

[31] [2009] EWCA Crim 1640, [2010] Q.B. 343, [2010] 1 FLR 807

[32] It is also of relevance to mediators and is touched upon at 4.##

[33] [1969] 1 WLR 1378

[34] [2007] EWHC Ch 625

[35] Considered further at #.##

[36] [2009] EWHC 2844 (Ch) Arnold J. The judge discusses the impropriety heading fully at [45]–[55]

[37] Robert Walker LJ in Unilever explained at 4.##

[38] The questions of a mediator and a judge in FDR providing evidence and corroboration is dealt with respectively at #.## and #.##

[39] Brown v Rice and anor [2007] EWHC Ch 625, Stuart Isaacs QC sitting as a deputy judge of the High Court; and see #.##

AA MILNE DOES IT IN SEVEN VERSES

The king asked the queen; and Fiona asked her friend…

AA Milne (also author of Winnie the Pooh) covered it in seven short verses (‘The King’s Breakfast’ from When we were very young (1924)). Roberts J does it in 107 paragraphs on 25 close printed pages (G v G (Legal professional privilege)[1] [2015] EWHC 1512 (Fam), Roberts J http://www.bailii.org/ew/cases/EWHC/Fam/2015/1512.html) and with much legal learning – mostly centred on (1) legal professional privilege (LPP) and legal advice privilege (LAP); and, if LAP did not apply, (2) confidentiality and whether it justified the grant of an injunction.

When the king wanted butter for his bread he asked the queen (obviously). The queen asked the dairy-maid who went to see the Alderney. The Alderney was about to go to bed, and suggested the king might like marmalade instead of butter. The king was not at all happy about that. As his little lower lip quivered the queen rushed back to the dairy-maid, who went to the shed. ‘The cow said:

“There, there

I didn’t really

Mean it;

Here’s milk for his porringer

And butter for his bread.”’

The king was very happy and – for that breakfast, at least – had ‘a little bit of butter to his bread’.

G v G: the facts

In G v G there was a trail from W (‘Fiona’) through two friends (queen and dairy-maid) which lead to Deborah Bangay QC (a parallel for the Alderney in AA Milne). There had been a 2010 consent order, following divorce proceedings, where Fiona had accepted ‘slightly less than half of’ £15.7M of the family assets. Later, she had discovered, she thought, that there might be rather more family assets to which her husband had been entitled. Had the order been made without full disclosure by H (‘Jason’)? She sought permission to appeal out of time (by application dated 23 July 2014) and thus to question the extent of disclosure and, if possible, to achieve the re-opening of her financial relief application against Nigel.

In September 2012 she had become aware of the possibility of the additional assets (in a trust fund of which Nigel was said to be a beneficiary). She spoke to her friend Debra, who spoke to her friend Patricia, who knows Deborah Bangay QC (all real names here); and Patricia arranged for Debra to speak with DBQC. DBQC said she didn’t take direct access instructions but gave Debra the name of Lewison Meltzer Piggott (LMP) and emailed Julian Ribet of LMP to say ‘[Fiona] may call you re performance of a consent order and ? poss non-disclosure’. This email came into the possession of Nigel as a result of DBQC having sent a copy of the email to his solicitors acting in the set aside proceedings. They then passed it to Nigel having given Fiona’s lawyers notice that they planned to do so ([15]-[28]).

Production to the court at trial of W’s set aside appeal was at the main issue before Roberts J:

[8] The central issue which I have to decide is whether or not the contents of an email dated 20 September 2012 which was sent by DBQC to Julian Ribet … were confidential and/or privileged. W’s case is that the contents of the email were (and remain) privileged and this court can and should prevent the use of the material at the forthcoming appeal hearing and require H’s entire legal team (who are now privy to that information) to withdraw from the case. H says no such privilege exists and he is entitled to use the email and the information within it in support of his case before Moor J in July 2015.

Why was this so important? Because Nigel takes the point (the appeal is yet to come on for trial) that delay in bringing this case to court may be fatal to Fiona’s claim. He and his lawyers want to know what was said by Fiona to Debra, in particular; and what may have been said by DBQC. Fiona claimed that LPP – specifically legal advice privilege (LAP) – applied to her conversations and the contact with DBQC; and that therefor the document should not be produced in court.

Roberts J characterised the issues she had to consider as follows (para [45]):

  • Does the conversation (or conversations, if more than one) between Fiona and Debra prior to her making contact with DBQC attract the protection of LPP (and specifically LAP)?
  • Does the (admittedly, short) conversation between Debra and DBQC on 19/20 September 2012 attract LPP?
  • Is this a case where injunctive relief should be granted to restrain the use of either confidential or privileged material?

Confidentiality and privilege

The conversations at (1) and (2) were confidential: the confidor could reasonably expect that the confidant would not pass on what was said. But to what extent might either conversation have the additional protection of privilege? The general rule is that there is a public interest in confidences being maintained (Att Gen v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109 (Spycatcher case) Lord Goff at 281: ‘… there is such a public interest in the maintenance of confidences, that the law will provide remedies for their protection’). However, confidentiality on its own can give way to another higher right, such as the right of the confidant or of a third party (perhaps Nigel in this case?) to a fair trial.

However, if LAP applies it provides a veneer to confidentiality. If established LAP is absolute (R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487), and cannot be overridden. Roberts J defines privilege as:

[36] … LAP is a fundamental principle of common law which enables people effectively to seek and obtain legal advice about their rights and duties whilst guaranteeing that open and frank discussions with their lawyers will be protected from disclosure, regardless of whether or not they are involved in either current or contemplated legal proceedings. The privilege belongs to the client and not to the adviser….:-

(i) clients must be able to seek and receive legal advice if the proper administration of justice is to be maintained;

(ii) sound legal advice can only be given if the client is candid with the legal adviser; and

(iii) to ensure candour and openness, the law must guarantee that the communications between a client and legal adviser remain confidential unless the client consents to disclosure.

[37] These principles are firmly and deeply embedded in English jurisprudence: see R v Derby Magistrates’ Court, Ex p B [1996] AC 487 at 507 to 509,… B v Auckland District Law Society [2003] 2 AC 736 at 756 to 759, and R (Morgan Grenfell & Co Ltd) v Special Comr of Income Tax [2003] 1 AC 563 at 606 to 607. Their application in the context of confidential and/or privileged material produced for the purposes of matrimonial proceedings is commonplace ….

Resolution of the issues

Of the issues set out in para [45] (see above), Roberts J concluded that no question of LAP could arise from the conversation between Fiona and her friend Debra ([83]). Indeed how could it? No legal advice from a lawyer (R (Prudential plc and anor) v Special Commissioner of Income Tax [2013] UKSC 1) – or anyone else – was involved, subject to the conduit point (below). Debra, said the judge, was not Fiona’s agent for the second conversation: between her and DBQC ([84]). There was no evidence of any legal advice having been given by DBQC. Fiona ‘was never in a [professional legal] relationship with DBQC’ so no question of LAP could arise ([88]).

The information remained confidential. Should the court exercise its discretion to grant an injunction – the appropriate remedy: see eg Istil Group Inc & Anor v Zahoor & Ors [2003] EWHC 165 (Ch), Collins J – to protect the communication from production in court? Quoting from Lord Millet in B & ors v Auckland District Law Society (New Zealand) [2003] UKPC 38, [2003] 2 AC 736 the judge pointed out that though the email was known to both parties (ie ‘the cat was out of the bag’), the cat ‘can be put back in the bag’ (G v G paras [67] and [101]) as Lord Millet explained. Roberts J could find no reason why any order should be made to prevent production of the email at the appeal hearing ([105]).

Cost of family proceedings

There is much – often justified – criticism of the cost of family proceedings. This case involved two silks and three juniors, and unnumbered solicitors and other lawyers in the background (including another silk). There were two real issues: did LAP apply; and if not was Fiona entitled to an injunction in respect of confidential information? The main protagonists knew what LAP means; so with expedition and limited erudition this issue could have been dispatched. If LAP did not apply, this then left the judge to exercise her discretion over whether or not to restrain production by an injunction in respect of the confidences.

It is tempting to wonder whether if the same issues had arisen where the assets were a fraction – say less than 10% – of those in G v G, would the court administration have permitted the same extensive treatment (as it did not, for example, in SC v YD [2014] EWHC 2446 (Fam) an appeal from a district judge on without prejudice rule immunity and a document). Devotion of an appropriate amount of the court’s resources is part of the overriding objective (FPR 2010 r 1.1). The law is the same whether the assets are £500,000 or £50M. I suspect an hour or two in front of a district judge would have resolved the same issues for the lesser money case; but is this to give both sets of parties fair trials?

[1] My title

HUMAN RIGHTS ACT AND FAMILY LAW: REFORM, REPEAL OR REPLACE

Convention law: a safety net

Human Rights Act 1998 and its incorporation of most of European Convention 1950 into English law has become a fundamental aspect of the English and Scottish constitutional framework; and it was often taken into account by judges long before its formal incorporation into British law in October 2000 (see eg Bingham LJ in W v Egdell (below)). However it must be recalled that it is mostly as a safety net that the 1998 Act and the Convention operate. That is part of its fundamental importance. The principle on which an effective welfare benefits system operates – as the post-War Beveridgeian system was intended to operate – is, as much as anything, as a safety net for those not provided for otherwise financially. So it is with the English statute and common law: that where these falter the Convention may plug the gap.

Toulson LJ (now Lord Toulson) explained the other side of this coin in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618:

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

Toulson LJ did not say this to devalue the 1998 Act and Convention; but sought only to point out that many important decisions can be made by British courts by reference only to statute and common law, and without reference to European jurisprudence.

Speaking – as I do – as a family lawyer (I dare not call myself a ‘constitutional lawyer’ as this series demands) I believe the Human Rights Act 1998 has done three things, all of which may survive within the common law and judicial thinking for many decades; though the points made here may apply in many – or most – areas of law:

  • It has sharpened up our understanding of legal concepts we had always used, but which the Convention made us rethink
  • It has made judges and lawyers balance the principles applicable and summarised in the Articles; known in Convention terms as ‘proportionality’
  • It has made us all, perhaps family lawyers especially, re-think aspects of the laws of confidentiality and privacy

Understanding legal concepts

Most English lawyers, including family lawyers, would have assumed that anyone who came before an English court in the twentieth century received a fair trial; and most family lawyers in the 1990s would have accounted the husband in Mubarak v Mubarak [2001] 1 FLR 698 as one of the more extreme rogues to have been dealt with in the family courts. As luck would have it (together with Mr Mubarak’s ability to fund an appeal, one might say) it fell to his case for the Court of Appeal to review the fairness of the rules made under Debtors Act 1869 s 5 (still in operation in the civil courts) for committal to prison for a debt ordered to be paid by a civil court. In 2000 (when Mubarak was heard) Civil Procedure Rules 1998 had recently been amended to apply, in civil (but not family) proceedings, the rule that a defendant should not be required to provide evidence against himself. The then family proceedings rules had not been so amended. As the 1998 Act was coming into force and Art 6(3) of the Convention coming to be applied to English court proceedings, the state of English family proceedings rules lead Brooke LJ to comment as follows:

[45] The Human Rights Act 1998 has now been in force for just over 2 months, and it is already clear that the introduction of a code setting out modern international standards of fairness is doing work of considerable value in shining light into some of the dustier corners of our law. The experience of this case shows, at any rate to my satisfaction, that corners do not get much dustier than those inhabited by s 5 of the Debtors Act 1869 and the prescribed procedures under that Act.

Family proceedings rules were amended – in the form now to be found in Family Procedure Rules 2010 Part 33 – to reverse the burden of proof as fairness required and which a review under convention terms had prompted.

Proportionality: ‘ultimate balancing’

Many judicial decisions – regardless of operation of European Convention 1950 principles – involve, and have always involved, the judicial balancing of conflicting principles. Convention principles do not change that. It has, however, helped to bring the exercise into sharper focus.

Lord Steyn explained the operation of the Convention balancing test in a criminal and family case (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 at [17]): should the right of the press to publicise information about mother’s trial override the right of her child to privacy:

[17] The interplay between articles 8 and 10 has been illuminated by the opinions in the House of Lords in Campbell v MGN Ltd [2004] 2 WLR 1232. For present purposes the decision of the House on the facts of Campbell and the differences between the majority and the minority are not material. What does, however, emerge clearly from the opinions are four propositions. First, neither article has as such precedence over the other. Secondly, where the values under the two articles are in conflict, an intense focus on the comparative importance of the specific rights being claimed in the individual case is necessary. Thirdly, the justifications for interfering with or restricting each right must be taken into account. Finally, the proportionality test must be applied to each. For convenience I will call this the ultimate balancing test.

These principles in relation to proportionality balance can be seen being developed in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166

and H(H) v Deputy Prosecutor of the Italian Republic, Genoa (Official Solicitor intervening) [2012] UKSC 25, [2013] 1 AC 338. In Lifely v Lifely [2008] EWCA Civ 904 (a chancery proceedings appeal between two brothers, who were at issue over what had been agreed between them and their father during his life) Ward LJ said of the balance to be struck between privacy and a fair trial to be applied after Re S:

[35] The Campbell case also involved the balancing of Miss Campbell’s right to respect for her private life under Article 8 and the right of freedom of expression that is enshrined in Article 10 of the Convention. Lord Hope spoke in paragraph 85 of his speech of the need for the court “to carry out a balancing operation, weighing the public interest in maintaining confidence against a countervailing public interest favouring disclosure.” For Article 10 in that case, read Article 6 in this [Lifely] case.

[36] In Re S (A Child) (Identification: Restrictions on Publication) [(above)] Lord Steyn spoke in paragraph 17 of the “ultimate balancing test” [as above]:…

[37] In my judgment the result of undertaking this balancing exercise is plain. Here there was no trespass or burglary. The diary was left on Andrew’s property and had been there for many years. Though he can, perhaps, be criticised for reading a private diary, his conduct,… was not so outrageous. If Nicholas had disclosed the existence of his diary, as strictly he ought to have done, then this information would have emerged at the trial. It was not privileged and no claim to confidentiality could then have prevailed.

Confidentiality and privacy

Ten years before Human Rights Act 1998 (in November 1989) Bingham LJ concluded his judgment in W v Egdell [1990] Ch 359, [1990] 2 WLR 471 (an important case in the context of when confidentiality and advice privilege may be breached) by stressing the significance of European Convention 1950:

No reference was made in argument before us (nor, so far as I know, before the judge J to the European Convention of Human Rights, but I believe this decision to be in accordance with it. I would accept that Article 8(1) of the Convention may protect an individual against the disclosure of information protected by the duty of professional secrecy. But Article 8(2) envisages that circumstances may arise in which a public authority may legitimately interfere with exercise of that right in accordance with the law and where necessary in a democratic society in the interests of public safety or the prevention of crime. Here there was no interference by a public authority. Dr. Egdell did, as I conclude, act in accordance with the law. And his conduct was in my judgment necessary in the interests of public safety and the prevention of crime.

This case, alongside the Guardian News and Media and Campbell cases (cited here) are concerned with aspects of confidentiality and privilege and with privacy. The application of Art 8 (right to respect for family life) is an area where it can be said that the common law has emphatically been developed since the Convention was more closely applied to English law (as explained in Campbell; and see Confidentiality (3rd Ed) Toulson and Phipps (2012, Sweet & Maxwell, especially 7-017 etseq).

That said, rules in relation to privilege have been known to and developed by the common law at least since the sixteenth century (as explained in R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513). This will not go if Human Rights Act 1998 is repealed.

Conclusion: the lessons of European Convention 1950

Privacy and the law of confidentiality is an important aspect of family law and needs to be tended carefully. This and so much else would be much better developed within the common law but under the oversight of European Convention 1950 principles. The family law will always want to recall the lessons of Mubarak and the balancing test in Re S. These lessons will remain; but how many other lessons, as yet unlearned, will be lost if the prominence of the Convention is lost to English and Scottish law? How many of Brooke LJ ‘dusty corners’ will remain unswept if an overarching jurisprudence, such as that provided by the Convention  is not regularly applied? To close the legal mind or any body of law to any legal development is a retrograde step. Like John Donne’s continent: any that is washed away ‘diminishes’ the whole.

ADVICE PRIVILEGE: A POINT OF RETAINER

… and when does SRA regulation start to run?

At what point in the life of legal advice can it be said that what a person has said to a lawyer – solicitor or barrister – is covered by legal advice privilege (LAP); and, perhaps by the same definition, at what point is the lawyer’s insurer on risk?

Yet, in these regulated times – when a lawyer’s every move, qua lawyer, is capable of review by a regulatory body; and many lawyers practice accordingly – a surprising feature of outcomes focussed regulation by Solicitors’ Regulation Authority is that the SRA seem not to do not know when their regulatory reign over a lawyer begins. The regulators have no barometer of which I am aware by which they can measure the critical moment – the scintilla temporis – at which lawyers are clearly within their regulatory clutches.

This note will say that that point in time is exactly the same as that which will be of concern to a lawyer in terms of when LAP arises on what has passed between him/her and an advised individual; or to an insurer if they are to be on risk under a firm’s professional indemnity insurance policy. At that point, it seems to me, it can be said a lawyer’s retainer contract is in place; and surely at that point the regulator net closes also?

It is therefore important to define – sometimes to the minute (as the examples below show) the scintilla temporis at which a contractual retainer arises. And certain it is, that SRA do not regard themselves as having any arbitral role in defining this point. They have no means in their present state of administrative uncertainly of defining when they their jurisdiction can be asserted. At least that is what I infer from what they tell me.

Retainer: a contract

A solicitor’s retainer is based on contract law: a solicitor is instructed to act by a client in ‘a relevant legal context’ (a term used by Taylor LJ in the context of his definition of legal professional privilege in Balabel v Air India [1988] Ch 317, CA). In most cases it will be for a consideration (eg payment of agreed costs); but not invariably. If the advice acts on the mind of the person advised, that is sufficient. It is sufficient even if the advice does not cause the advised in any way to alter their position (ie to act on that advice); though in most circumstances some change of position (however slight) will be the result.

The moment a lawyer gives legal advice (ie not information about bus time for coming to a meetings, or as to what a client should wear if it rains on the way home from court) s/he is working in a relevant legal context. And indeed, the incidence of advice privilege may prove to be the critical feature.

Advice privilege and the ‘legal context’

Two examples from a family law context will serve. In both an independent financial adviser meets Rachel Boxley (RB), a lawyer with a specialist family law Birmingham firm. The occasion is a marketing event hosted by Thefamilylaw.Com (FLCo), RB’s firm, at the local rugby club. Over his third glass of wine Ian tells RB that his own marriage has broken down, he is seeing his two children hardly at all and that he is bleeding himself white financially: he pays, he says, the mortgage on their house and substantial maintenance. Next Thursday he and his ex are to have their fifth session with a mediator who seems to be taking things nowhere and to agree with her all the time. RB says she cannot see how he can be expected to pay all that maintenance and for the mortgage. She gives Ian her card (she is there to pick up clients, after all) and says to him to give her a ring soon.

When he comes in for an appointment, five months later, RB is troubled to find that he has a possession action application from the mortgagees of his house, a letter from his wife’s solicitors, a divorce petition and a letter from the Child Maintenance Service (formerly Child Support Agency). Mediation failed when the mediator expressed distaste, and his wife vehemence, that he appeared to want the children thrown out of the family home. A bout of reactive, but severe, depression prevented him making an earlier appointment. He has not the means to pay the mortgage arrears. He attributes to RB’s advice that he should not pay his mortgage any more – as he saw it – much of his present difficulties, of the failure of mediation and total loss of contact with his children. Will RB warn him in terms of SRA Code of Conduct 2011 Ch 1 IB(1.16) (the firm may have made a mistake) and O(1.12) (a conflict may exist in consequence); and will FLCom’s insurers see it in the way that Ian does, if RB cannot resolve his difficulties?

In a second case RB meets another local professional, Paul, at a party. Out of the blue, but knowing RB is a solicitor with a family law firm, Paul tells her (almost as if he has decided finally to confess, that evening) that he and his wife are involved in court proceedings over their third child, Colin. He was found with injuries to his upper body which – say the doctors – can only be explained by his having been shaken violently and put back in his cot. They have been to court – Paul’s voice breaks a little, and he looks away. Colin is in temporary care. Neither parent admit that they could have been responsible; but Paul now feels he needs to find a way to tell his wife, the doctors, social workers – his own lawyer – that he is willing to admit to having shaken his little boy and – perhaps – to have caused the injuries. RB looks around for the firm’s child care expert Norma Hartnov. She introduces Ian to NH and the three of them, in a secluded corner, talk about what Paul has said. He will need separate representation. NH says FLCom is happy to act.

Legal advice privilege: Prudential and Derby Magistrates’ case

For present purposes ‘privilege’ entitles a person to refuse to put otherwise relevant evidence before a court. In family proceedings it takes four main forms (considered in more detail in [2014] Family Law ): legal advice privilege (see below); litigation privilege (said not to apply in some family proceedings (Re L (Police Investigation: Privilege) [1997] AC 16, [1996] 1 FLR 731) which enables a litigant to collect evidence in confidence (ie it cannot be forced to be revealed by him/her) for a case); self-incrimination privilege (the right to tell others to mind their own business: per Lord Mustill in Reg v Director of Serious Fraud Office, exp Smith [1993] AC 1 at 30-31, but vulnerable to other disclosures pressures in family proceedings); and the immunity (or ‘privilege’) said to arise from the without prejudice rule (an implied contractual arrangement between parties seeking to settle disputes).

At the beginning of 2013 Lord Neuberger gave a modern definition of legal advice privilege as follows;

[17] Where legal professional privilege (“LPP”) attaches to a communication between a legal adviser and a client, the client is entitled to object to any third party seeing the communication for any purpose, unless (i) the client has agreed or waived its right, (ii) a statute provides that the privilege can be overridden, (iii) the document concerned was prepared for, or in connection with, a nefarious purpose, or (iv) one of a few miscellaneous exceptions applies (eg in a probate case where the validity of a will is contested)….
[19] [It] applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which “relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law” (Three Rivers District Council and ors v Governor and Company of the Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610 at [38] per Lord Scott).

Lord Neuberger then identified three particular points concerning legal advice privilege which he identified from recent case law:

[21] First, LAP exists to ensure that there is what Justice Rehnquist referred to in the Supreme Court of the United States as “full and frank communication between attorneys and their clients”, which “promote[s] broader public interests in the observance of law and administration of justice” (Upjohn Co v United States (1981) 449 US 383 at 389, quoted by Lord Scott in Three Rivers (No 6) at [31]. As Lord Scott went on to explain (at [34]) the principle “that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers’ legal skills …, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else” is founded upon “the rule of law”.
[22] Secondly, LAP exists solely for the benefit of the client. As Bingham LJ said in Ventouris v Mountain [1991] 1 WLR 607, 611, the expression “legal professional privilege” is “unhappy” in so far as it suggests that the privilege is that of the legal profession, when it is “the client who enjoys the privilege”. Thus, as Lord Hoffmann pointed out in R v Special Commissioner and anor exp Morgan Grenfell & Co Ltd [2002] UKHL 21, [2003] 1 AC 563 at [37], “[i]f the client chooses to divulge the information, there is nothing the lawyer can do about it”.
[23] Thirdly, LAP is a common law principle, which was developed by the judges in cases going back at least to the 16th century – see Berd v Lovelace (1577) Cary 62, which, together with subsequent cases, is discussed in the opinion of Lord Taylor of Gosforth CJ in R v Derby Magistrates’ Court, Ex p B [1996] AC 487, 504-505….

The R v Derby Magistrates’ Court exp B [1995] UKHL 18, [1996] 1 AC 487, [1996] 1 FLR 513 provides a stark example of LAP in play. The applicant B had been charged with murder of a young girl. He confessed to the police, but later changed his story. He said that his stepfather had killed the girl. B was tried and acquitted; and the stepfather was then charged with the murder. At his committal for trial, B was called as a prosecution witness. During the defence cross-examination he was asked about the version of events he had given to his solicitors in his original account of what had taken place. He declined to waive privilege. The stepfather then obtained from the stipendiary magistrate a witness summons requiring B’s solicitor to produce all attendance notes and proofs of evidence disclosing B’s factual instructions in defence to the charge of murder but not the advice given to him by solicitors and counsel. B applied successfully in judicial review for the quashing of the witness summons. What he had said to his solicitor was covered ineradicably by LAP.

Legal advice privilege and inception of a retainer

When Paul spoke to RB and then to NH as he did, LAP would prevent either of the solicitors (and the same would apply if they had been barristers) repeating what he said; and if it could be said he spoke in a relevant legal context. Each of RB and NH are lawyers and are subject to LAP (see eg the Prudential case (above)). He knew that they were lawyers. If Paul changed his story, or was simply unwilling to waive his privilege, it is inconceivable that anyone – as with B in the Derby Magistrates’ case – could require NH or RB to repeat what he told them, whatever the context (even, and including, in Children Act 1989 Part 4 (care or ‘public law’) proceedings).

Ian suffers the prospect of further loss from his stopping of mortgage payments; or so it appears at this stage. It seems this arises directly from what he was told, at a similar function, by RB. Was the context legal? Certain it is that Ian thought he was talking to a lawyer, and altered his position as a result of what she said to him – that is, what she advised.

Inception of the retainer contract

So does a contract of retainer arise in either of these cases? The three defining features of a contract in general terms, and in the context of a solicitors’ retainer in particular, are as follows:

(1) Intention to create legal relations The act of seeking advice from a lawyer shows an intention in him/her to create legal relations and, for example, causes LAP to bite;
(2) Offer and acceptance: (a) the providing of information to an adviser in a relevant legal context, (b) the offer of advice and (c) the altering (albeit only fractionally) an individual’s position based on that advice, comprise the offer/acceptance component of a contract; and
(3) Consideration: an implied term of the above is that the lawyer can charge: in consideration of my giving advice to an individual I may render a bill (that I chose not to do so, does not lessen the fact of my right so to do: consideration passes whether I charge or not).

It follows: at the point where a solicitor starts to respond to information given by an individual who expects to receive advice, and the solicitor advises in consequence, then a contract of retainer is created. LAP applies to any confidential information and the potential for a claim for professional negligence (however slight) is at large. The professional indemnity insurer is on risk. And, arising from the first paragraph of this note, for good or ill, the baleful maw of Solicitors’ Regulation Authority closes.

‘TRANSPARENCY’: NOT ALL ABOUT CHILDREN: publicity after Cooper-Hohn

Case management, publicity and Cooper-Hohn v Hohn

The judgement of Roberts J in Cooper-Hohn v Hohn [2014] EWHC 2314 (Fam) raises important questions about publicity in financial remedy proceedings. The judge found herself required to give ‘a case management’ decision in a substantial money case where ‘accredited members of the press have been present, as they are fully entitled to be’ (FPR 2010 r 27.11(2)(f)). The question for her was: ‘[2].. the extent to which [the press] should be able to report an account of the proceedings as they unfold on a daily basis and whether there is any restriction on their ability to do so.’ The press were separately represented. Application was made for reporting restrictions to be lifted.

Roberts J refused to impose full reporting restrictions (as Mr Hohn wanted) but restricted the press, on terms which were less than Mrs Cooper-Hohn want, as follows (para 98 of her judgement):

The media shall be prohibited from publishing any such report that refers to or concerns any of the parties’ financial information whether of a personal or business nature including, but not limited to, that contained in their voluntary disclosure, answers to questionnaire provided in solicitors’ correspondence, in their witness statements, in their oral evidence or referred to in submissions made on their behalf, whether in writing or orally, save to the extent that any such information is already in the public domain.

Roberts J describes her job (at para 61) on reporting restrictions as ‘to find a way through somewhat rocky terrain where, as everybody appears to agree, there is no clear roadmap’. She concluded – looking at her decision through the prism of European Convention 1950 Art 8 (respect for private life) and 10 (press freedom); and perhaps Art 6(1) (right to a fair trial; administration of justice) – that she should make the restriction order (above). She resolved the parties and the press’s Convention rights as follows:

[176] I find that the balance between the right of the media to freedom of expression and their ability to report to the public at large, and the right of the husband and wife to respect for their private and family life, in so far as it relates to the detail of their finances, weighed together with the overarching principle of open justice and the implied undertaking as to confidentiality, falls firmly in favour of privacy in relation to financial matters being maintained.

A guide through ‘rocky terrain’: start from the common law

This article attempts to provide a guide through the ‘rocky terrain’ – limited to financial remedy proceedings – for what ultimately is a matter of judicial discretion based on the common law and a European Convention 1950 proportionality balance. I shall suggest here that the best starting point is the common law, as summarised most succinctly in Civil Procedure Rules 1998 r 39.2.

First it is important to be clear as to the threefold categorisation of family proceedings: (1) those governed solely by the common law (civil proceedings and a minority of family proceedings); (2) financial remedy proceedings; and (3) proceedings governed by Administration of Justice Act 1960 s 12(1) (‘AJA 1960’: children proceedings: their welfare, maintenance and upbringing). Most aspects of (2) are subsumed in principles derived from (1); and children issues under AJA 1960 s 12(1) are likely to be rare in financial remedy proceedings.

The starting point is the common law rule that all proceedings should be in public (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 where contempt committal orders for publication of nullity proceedings were set aside by the House of Lords). Publication on its own is not to be punished ‘unless it can be established to the satisfaction of the court to whom the application is made that the publication constitutes an interference with the administration of justice either in the particular case to which the publication relates or generally’ said Lord Scarman in Attorney General v Leveller Magazine Ltd [1979] AC 440 at 469. This position is reflected in European Convention 1950 Art 6(1), which states that: ‘In a determination of his civil rights and obligations … everyone is entitled to a fair and public hearing…’. CPR 1998 r 39.2(1) asserts: ‘The general rule is that a hearing is to be in public’.

This ‘open justice principle’ and its place in the common law was explained by Toulson LJ in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618 as:

[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.

Family proceedings hearings ‘in private’

Confusion in proceedings covered by FPR 2010 arises from the fact that FPR 2010 r 27.10(1) asserts that all proceedings under FPR 2010 shall be held ‘in private’. This suggests that there is a presumption of privacy for family hearings. The common law and Convention jurisprudence provides the opposite. Privacy must be justified: Scott v Scott; Attorney General v Leveller (above), save in proceedings to which AJA 1960 s 12 applies. Nor is it clear on what underlying legal principle, statute or common law, the rule-makers derive their rules on attendance at private hearings (FPR 2010 r 27.11), especially of the press (‘accredited representatives of news gathering and reporting organisations’: r 27.11(1)(f)).

If tested it seems unlikely that FPR 2010 rr 27.10 and 27.11 would be found to be intra vires any established principle of law or Convention principle. Convention jurisprudence which is the starting point for any restraint on publicity (Re S (Identification: Restrictions on Publication) [2004] UKHL 47, [2004] 2 AC 593 per Lord Steyn at [23]). Of the status of rules as law: rules ‘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’ (Jaffray v The Society of Lloyds [2007] EWCA Civ 586, per Buxton LJ at [8]).

When in contempt of court?

This note therefore proceeds on the basis that, other than in proceedings covered by AJA 1960 s 12, any restriction of publicity, whether as to attendance at a hearing or of the reporting of a hearing, must be justified in law. Exceptions set up by the common law relate to the hearing of proceedings and, separately, to the documents in those proceedings and their ‘use’. These exceptions are set out in CPR 1998 rr 39.2(3) and 31.22(1). The first rule provides that a hearing may be partly or entirely in private where, for example, ‘publicity would defeat the object of the hearing’ (r 39.2(3)(a); see eg the Leveller Magazine case (above)); the case ‘involves confidential information (including information relating to personal financial matters) and publicity would damage that confidentiality’ (r 39.2(3)(c)) which might have applied in Cooper-Hohn); and ‘the court considers this to be necessary, in the interests of justice’ (r 39.2(3)(g)).

A separate jurisdiction also arises from the question of whether documents in proceedings may be further ‘used’ by parties or others; though the principles on which the court decides ‘use’ questions and the publication of proceedings overlap. CPR 1998 r 31.22 provides:

(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –
(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;
(b) the court gives permission; or
(c) the party who disclosed the document and the person to whom the document belongs agree.
(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.

There is no equivalent to rr 39.2 or 31.22 in FPR 2010. The court has a separate power to restrict the use of parties’ names (CPR 1998 r 39.2(4) which was at issue in eg W v M (TOLATA Proceedings; Anonymity) [2012] EWHC 1679 (Fam), Mostyn J.)

Publicity in financial remedy proceedings

Issues of publicity for a hearing or of documents therefore arise in financial remedy proceedings in the following contexts:

(1) Whether there should be any restriction on the open court principle (ie full publicity) for financial proceedings (r 39.2(3));
(2) Whether a document made available as part of the court disclosure process should be permitted to be ‘used’ separately from the proceedings (r 31.22(1)(b));
(3) Whether such a document has been referred to in open court proceedings (r 31.22(1)(a)); or
(4) Even if (3) applies, whether a party can be restrained from use of the document.

The comment of Stanley Burnton LJ in Lykiardopulo v Lykiardopulo [2010] EWCA Civ 1315, [2011] 1 FLR 1427 provides a starting point:

[76] Parties to a matrimonial dispute who bring before the Court the facts and documents relating to their financial affairs may in general be assured that the confidentiality of that information will be respected. They are required by the Court to produce the information and documents, and it is a general principle, applicable to both civil and family proceedings, that confidential information produced by those who are compelled to do so will remain so unless and until it passes into the public domain. That confidence will in an appropriate case be protected by the anonymisation of any reported judgment.

Reporting of hearings in open court

CPR 1998 r 39.2(3) provides a list of exceptions to the general open court rule, though it is only very rarely referred to in family proceedings. A search of Family Law Online reveals references to the rule only because it applies to civil proceedings in any event (eg Harb v King Fahd Bin [2005] EWCA Civ 632, [2008] FLR 1108; though in DE v AB [2014] EWCA Civ 1064 Ryder LJ dealt with privacy without any reference to r 39(3)). In Allan v Clibbery [2002] EWCA Civ 45, [2002] 1 FLR 565 Dame Elizabeth Butler-Sloss P mentioned CPR 1998 r 39.2 briefly at [28]. The issue in Hohn, for example, related to attendance in court and reporting. The case could have been disposed of on principles under r 39.2(3)(c).

‘Use’ of documents following the court proceedings

Rule 31.22 deals with documents which are sought to be made ‘use’ of after a hearing (se eg Ms Clibbery’s publication of Mr Allan’s documents in Allan v Clibbery (above)). Where documents have been produced by a party because of the requirements of disclosure they remain confidential in any civil proceedings unless they have been ‘referred to… in public’ or the court permits their ‘use’ by third parties (r 31.22(1)). A further question (outside the scope of this note) is: does the court have power, on its own initiative, to order release of documents to third parties (eg HMRC): in A v A; B v B [2000] 1 FLR 701, Charles J concluded that he could find no authority which prevented him from so doing, and made orders for release accordingly.

Documents which are disclosed, under what amounts to compulsion, can only be used for the proceedings in which they are disclosed. Such disclosure has been treated as being subject to an ‘implied undertaking’ that they will not be used for any purpose other than the proceedings. Rule 31.22(1) is intended as a release from this undertaking (SmithKline Beeecham plc v Generics (UK) Ltd [2003] EWCA Civ 1109 at [28]). The undertaking and thus the obligation not to use documents is owed to the court (Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 per Hobhouse J at 774H). A party may apply to publicise or otherwise to release – to ‘use’ – such documents r 31.22(1)(b).

Has a document has been referred to in open court proceedings

If a document has been referred to or read in open court it can be released (eg published in the press), subject to any r 31.22(1) order. The principle of openness remains the starting point: see eg Lilly Icos v Pfizer Ltd [2002] EWCA Civ 2:

… [25] (iv) simple assertions of confidentiality and of the damage that will be done by publication, even if supported by both parties, should not prevail. The court will require specific reasons why a party would be damaged by the publication of a document.

In Smithkline Beecham Biologicals SA v Connaught Laboratories Inc [1999] EWCA Civ 1781, [1999] 4 All ER 498 Lord Bingham LCJ explained the significance of ‘read to or by the court, or referred to, at a hearing’ in CPR 1998 r 31.22(1)(a). These applications are like to be resolved (see eg Allan v Clibbery) on principles akin to an application for privacy of proceedings. Under r 31.22(2) a party may apply restriction of release of read documents (r 31.22(2)) as Mr Allan tried unsuccessfully to do.

Release of documents to a third party

A third party (such as HMRC) can apply for release to them of documents disclosed in proceedings (ie covered by the implied undertaking), or for documents referred to in private proceedings to be released (r 31.22(1)(b)) often for use in separate proceedings. In Tchenguiz v Director SFO [2014] EWHC 1315 (TCC), Eder J reviewed the law on giving of permission for release of such documents. Each case, he emphasised, turns on its own facts (Crest Homes v Marks [1987] AC 829 at 860). The public interest in the truth and making full disclosure ‘operates in favour of releasing relevant documents from hub into satellite proceedings’ (SmithKline Beecham Plc v Generics (UK) Ltd [2004] 1 WLR 1479 at [36]). He concluded that ‘the public interest in the investigation and prosecution of serious fraud [will outweigh] the general concern of the courts to control the collateral use of documents produced compulsorily on disclosure’ (Marlwood Commercial Inc v Kozeny [2005] 1 WLR 104, CA at [47], [52]; but see eg Y v Z [2014] EWHC 650 (Fam), where Bodey J refused a mother’s appeal that she could produce evidence of the father’s lies to the CPS and the Financial Conduct Authority and contrast A v A; B v B (above)).

Conclusion

A number of the principles which arise here – and which arose in the Cooper-Hohn interim hearing – cross over from (say) an initial application for a case to be in private (CPR 1998 r 39.2(3); ie to lift restrictions on publicity in financial remedy proceedings) to the separate question of whether the court gives permission for use of documents otherwise restricted from release by their having been disclosed but not referred to in court. The first point for any applicant under these areas of law is to be clear into which category of publication of a hearing or release of documents the application arises, and then to apply the principles outlined above to the application in question.

CONSULTATIONS IN PROGRESS PER PRESIDENT’S 13TH FENESTRAL MUSING

Family procedure: consultation under way

In his short period in office Sir James Munby P has made reform of the family court system a distinctly personal affair. Following Sir James’s 13th fenestral musing (13th View from the President’s Chambers: The process of reform: an update http://www.familylaw.co.uk/news_and_comment/13th-view-from-the-president-s-chambers-the-process-of-reform-an-update#.U_BvDfmSwmF ) there are probably as many as five (perhaps more) consultations under way:

• ‘Transparency – The Next Steps: A Consultation Paper issued by the President of the Family Division on 15 August 2014’ see eg http://www.familylaw.co.uk/news_and_comment/transparency-the-next-steps-a-consultation-paper-issued-by-the-president-of-the-family-division-on-15-august-2014?utm_source=Familylaw.co.uk&utm_medium=Twitter#.U_BeuPmSwmE
• Vulnerable Witness Working Group: see ‘Interim Report of the Children and Vulnerable Witnesses Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/interim-report-of-the-children-and-vulnerable-witnesses-working-group-31-july-2014#.U_BomfmSwmE
• Draft standard orders – for a compendium of these see http://www.familylaw.co.uk/news_and_comment/family-court-draft-standard-orders#.U_BrnfmSwmE
• As ‘Report of the Financial Remedies Working Group – 31 July 2014’ http://www.familylaw.co.uk/news_and_comment/report-of-the-financial-remedies-working-group-31-july-2014#.U_BqXvmSwmF
• Litigants in person – somewhere in the back-ground between the various court systems that comprise out fractured system of civil justice a debate is going on about the position of litigants in person in civil procedure (including family proceedings): see eg Judicial Working Group on Litigants in Person – 5 July 2013 http://www.judiciary.gov.uk/publications/judicial-working-group-lip-report/

There are also other straws in the Presidential wind as seen from his window, including:

• Expert evidence after Children and Families Act 2014 s 13
• Legal aid after Q v Q (No 2) [2014] EWFC 31: ‘what is to be done?’ says the President.
• Divorce; and its separation from the family procedural system

At this stage I can only urge caution at the speed with which the results of these consultations are pursued; for, as with a car which is driven too fast, speed can cause injury – in this case, to bring the metaphor back to family courts, to children and others who cannot protect themselves against the President’s ardour. Momentum must surely be preserved; but that is not the same as haste. Reflection is important. Ill-considered haste breeds mistakes. Not only will bad reform decisions be made; but then children and other vulnerable individuals – who deserve protection in the family court system – may be hurt.

Protected witnesses: breadth of reform

The initiative which most affects the welfare of children in the above list, I would suggest, is that on what is called ‘vulnerable witnesses’. The working group, it seems with Sir James’s encouragement, wants to produce one rule change to cover this subject – yes, only one, they say.

If ‘vulnerable witnesses’ – I should prefer the wider concept of ‘protected individuals’ – are to be given the rights and help they need in a system of fairness for families (not only for children) a number of the other subjects cross over into reforms. Such subjects would include: the rights/demands of litigants in person (see eg H v L and R [2006] EWHC 3099 (Fam) and the President’s own Q v Q (No 2) [2014] EWFC 31); and confidentiality issues which arise from the transparency consultation paper. Is the working group speaking of ‘vulnerable witnesses’ only; or do they not, in reality, mean a much wider group? Do they not mean parties and witnesses – two quite different procedural components – who may in fact be ‘vulnerable’? Do they mean children who want to talk to the judge dealing with their case, who are not ‘vulnerable’ at all: they just want to be heard? Do they – or should they? – mean the vulnerable child welfare informer like the unquestionably ‘vulnerable’ X in Re A (A Child) [2012] UKSC 60?

These questions – and a variety of others – raise issues much wider than the working group seem so far to have considered at their one meeting (from which they have already produced ‘proposals and initial recommendations’: how open is the door on this ‘consultation’?). Rule changes – if of family proceedings only (but why not do the job properly and cover all civil proceedings?) – will be required to Parts 4, 16, 21 and 22 (better still one pervasive FPR 2010 Part). Substantive law changes may be needed – eg a definition of ‘protected individuals’; the position of litigants in person; perhaps a role for advocates to the court and rights for the child welfare informant – which were overlooked in the rush to get the meagre provisions of Children and Families Act 2014 part 2 onto the statute book.

And yes, much needs to be done on legal aid – help for funding of family proceedings. The President asks ‘What is to be done’? He or his office, I respectfully suggest, could start by reading some thoughts from this author at ‘Possibilities for state funding after Q v Q’ – http://wp.me/4jaDx and ‘State funding family cases after Q v Q; Re B; Re C [2014] EWFC 31’ – http://www.familylaw.co.uk/news_and_comment/state-funding-family-cases-after-q-v-q-re-b-re-c-2014-ewfc-31#.U_B14_mSwmE .

PORTNYKH’S COMPLAINT

 

Without prejudice rule immunity and later court proceedings

This brief note considers the aspect of without prejudice rule negotiations where it is said by one party to the mediation or negotiation that a preliminary phase of discussions is not related to the dispute which is later referred to a court or tribunal; that is, where mediation, conciliation or other dispute resolution did not resolve all issues. It occurs to me that this might be important with family mediation, especially where discussions with a mediator are followed by a reconciliation which later breaks down.

It is probable that in most cases, an earlier mediation would be covered by any without prejudice rule immunity (‘WPRI’) – or ‘privilege’ – arising from a later mediation, assuming that the issues for mediation in both are the same. However, the earlier discussions are not covered by WPRI then the mediator would be compellable as a witness in respect of relevant evidence and if the court is persuaded to waive confidentiality (Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) [2009] EWHC 1102 (TCC), Ramsey J).

For example, supposing you were mediating following relationship breakdown. In the negotiations the husband’s parents joined in to discuss how the couple’s house had been acquired (with money from the parents). The couple become reconciled. Four years later they are back seeing the same mediator. This time their parents are not there.

(1)   To what extent are admissions made by the parents in the first mediation admissible in court if the second mediation breaks down; or if the couple, four years later, issue proceedings immediately without coming back to you as mediator?

(2)   Would your answer differ if the husband becomes bankrupt at the same time as the separation?

(3)   What would your view be if you understood the parents to be making admissions as part of their concern to keep the couple together?

(4)   How would you suggest the parents deal with things if they come back to see you, where the couple have gone straight to lawyers and started proceedings?

In Portnykh v Nomura International plc [2013] UKEAT 0448-13-0511, HHJ Hand QC (sitting alone) http://www.bailii.org/uk/cases/UKEAT/2013/0448_13_0511.html provides a first class modern summary of without prejudice rule immunity and how it operates in connection with negotiations. He looks at the question in a carefully argued judgement, and especially where it is said by one party that the particular negotiations – in relation to redundancy, where a former employee made concessions in relation to his employment – are not in connection with a dispute or ‘potential dispute’ (as was said in Framlington Group Ltd & Anor v Barnetson [2007] EWCA Civ 502: redundancy negotiations not part of dispute which resulted in subsequent litigation).

In Potnykh the EAT held that the redundancy negotiations were part of a continuum which included the later tribunal proceedings, Therefore the earlier redundancy negotiations, including email correspondence and admissions made in the course of them, were privileged from production in the later tribunal hearing.

A subsidiary issue which arose in Portnykh, but was not determinative of the immunity, related to the ‘unambiguous impropriety’ exemption (see the list of exemptions in Unilever plc v The Procter & Gamble Co [2000] 1 WLR 2436 (set out in DR Law Guide, 1st Ed)): that the without prejudice rule cannot be used to hide impropriety or eg later failure to disclose admitted and material information in later proceedings (where settlement is not achieved).

Portnykh (even if you can remember how to spell it) will not answer the questions posed above; but, I believe, it may give a good insight into the need to be clear on a number of points including:

(1)   Where, in law (as an EAT appeal this had to turn on a point of law: Tribunals, Courts and Enforcement Act 2007 s 11), negotiations are – or are not – intended to settle an incipient dispute if, later, a mediator is asked to provide evidence about negotiations

(2)   Where a party seeks to use WPRI to hide real dishonesty (eg material non-disclosure), and a mediator is summonsed to give evidence as to that impropriety.

Protnykh will be considered further in context in the DR Law Guide (2nd Edition in preparation).