Closed material procedures in children proceedings

Closed material procedures

 

A closed material procedure was defined by Lord Neuberger in Bank Mellat v Her Majesty’s Treasury (No 1) [2013] UKSC 38, [2014] AC 700 (Bank Mellat (No 1)) as:

 

[1] … A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties).

 

In Al Rawi & Ors v The Security Service & Ors [2011] UKSC 34 [2012] AC 531 the Supreme Court held that the common law would not permit a closed material procedure. Such procedures can only be set up by express statutory provision (the Bank Mellat case proceeded under Counter-Terrorism Act 2008). European Convention 1950 and the right to a fair trial does not prevent closed material procedures, provided strict conditions are met.  Lord Neuberger summarised those conditions in Bank Mellat (No 1) as follows:

 

[5] …Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it.

 

In Re A (Sexual Abuse: Disclosure) [2012] UKSC 60, [2013] 1 FLR 948 (a vulnerable young adult witness confronted by an argument that her confidentiality should be breached so she could give evidence against a father in children proceedings) Lady Hale, confronted with a suggestion that closed material could be considered in that case, answered:

 

[34] It is in this context that it has been suggested that the court might adopt some form of closed material procedure, in which full disclosure was made to a special advocate appointed to protect the parents’ interests, but not to the father himself. It faces two formidable difficulties. The first is that this Court has held that there is no power to adopt such a procedure in ordinary civil proceedings: Al Rawi v Security Service (JUSTICE intervening) [2011] UKSC 34, [2012] 1 AC 531…. It is arguable that a greater latitude may be allowed in children cases where the child’s welfare is the court’s paramount concern. But the arguments against making such an inroad into the normal principles of a fair trial remain very powerful….

 

Secondly, she went on to say, there are difficulties inherent in the procedures themselves:

 

[34] … The essential requirement of any fair procedure is that the person who stands to lose his rights has an opportunity effectively to challenge the essence of the case against him. There may be cases in which this can be done by offering him a ‘gist’ of the allegations and appointing a special advocate to scrutinise the whole of the material deployed against him. In a case such as this, however, it is not possible effectively to challenge the allegations without knowing where, when and how the abuse is alleged to have taken place. From this information it is inevitable that X’s identity will be revealed. Even if it were theoretically possible to devise some form of closed material procedures, therefore, it would not meet the minimum requirements of a fair hearing in this case.

 

Closed material procedures in children proceedings

 

So where does that leave any proposal that there might be scope – albeit very limited – for closed material procedures in children proceedings? Al Rawi provides the starting point for consideration of any such procedure in civil proceedings. The case arose from a preliminary issue in a damages claim raised in proceedings where the claimants alleged that the security services had been complicit in the detention and ill-treatment of them by foreign authorities at various locations including Guantanamo Bay. The pleaded causes of action included false imprisonment, trespass to the person, conspiracy to injure, torture and breach of the Human Rights Act 1998. The state filed an open defence admitting certain uncontroversial facts, but also a closed defence which referred to material they wanted the court to consider; but to which they wanted to deny access to the claimants.

 

The Security Service, the defendants, said that the disclosure question could not be dealt with on ordinary public interest immunity grounds. They said there was so much material: this might take 3 years just to decide in respect of which material PII should be claimed. The judge said a closed material procedure was permitted. The Court of Appeal disagreed; and the Supreme Court disallowed the Security Service’s appeal from that decision (with Lord Clarke dissenting). In that case, and as a general rule in civil proceedings it was held that closed material procedures should not be permitted in the absence of statutory provision.

 

Use of closed material procedures in civil proceedings

 

Closed material procedures have been used to protect national security (eg cases cited so far in this article) and in proceedings before the Information Commissioner where sensitive information is required to be protected (Browning v The Information Commissioner & Anor [2014] EWCA Civ 1050, [2014] 1 WLR 3848). In a very narrow range of exceptional circumstances they may be ordered in children proceedings (and eg subject to the conditions referred to by Lord Neuberger in Bank Mellat (No 1) at [5] (above)). The starting point must always be to protect a party’s right to an open trial with all material available to him or her which will be considered by the court; and subject to rules of natural justice.

 

Lord Dyson, who gave the main judgment for those who dismissed the appeal in Al Rawi, summarised the open trial principles. First, he said, trials must be in public:

 

[10] There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, at p 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, at pp 449H-450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening) [2011] QB 218, paras 38-39, per Lord Judge CJ.

 

Certain basic principles of natural justice must be observed by the courts. He cites particular aspects of this, including:

 

[12]… A party has a right to know the case against him and the evidence on which it is based. [and] he is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance….

[13] … The parties should be given an opportunity to call their own witnesses and to cross-examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (1998) 195 CLR 594, at para 32: “Confrontation and the opportunity for cross-examination is of central significance to the common law adversarial system of trial.”

 

Lord Dyson was concerned to emphasise these points – none of them ‘controversial, he thought – because a closed material procedure, unlike public interest immunity, diverged from open justice and natural justice principles. He centred Parliament’s response to this on the prevention from terrorism legislation so far made:

 

[14] In recent years, both the courts and Parliament have been exercised by the problem of how to balance (i) the interest that we all have in maintaining a fair system of justice which, so far as possible, respects the essential elements of these principles and (ii) the interest that we also all have in the protection of national security, the international relations of the United Kingdom and the prevention, detection and prosecution of crime. Thus, Parliament has reacted to the threat of terrorism to our national security interests by introducing a form of closed material procedure (with the use of special advocates) for use in certain categories of case, for example, by enacting the Prevention of Terrorism Act 2005 and the Counter-Terrorism Act 2008.

 

Thus a closed material procedure must be distinguished from public interest immunity. With closed material procedures the judge and certain parties (and perhaps special advocates for the parties kept out of the material) will see the sensitive material; but the excluded parties themselves will not. By contrast, in the case of public interest immunity only the party who has the documents has access to the information they contain. This is denied to other parties and to the court. The court therefore decides the case with only a part of the relevant evidence.

 

Civil proceedings

 

It is not in question that proceedings in relation to children are one of the exceptions to the open justice principle (Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417; Administration of Justice Act 1960 s 12(1) etc). Hearings will almost invariably be in private even though an anonymised version of the judgement may be published. Closed material procedures go much further than privacy. Lord Dyson again (citing Lord Bingham):

 

[27] It is one thing to say that the open justice principle may be abrogated if justice cannot otherwise be achieved. As Lord Bingham of Cornhill said in R v Davis [2008] UKHL 36, [2008] 1 AC 1128 at para 28, the rights of a litigating party are the same whether a trial is conducted in camera or in open court and whether or not the course of the proceedings may be reported in the media. It is quite a different matter to say that the court may sanction a departure from the natural justice principle (including the right to be present at and participate in the whole or part of a trial). Scott v Scott is no authority for such a proposition.

 

So, the issues at the heart of the appeal were:

 

[27] … How can such a step ever satisfy the requirements of justice? And if the court does have the power to deny a litigant this fundamental common law right, in what circumstances is it appropriate to exercise it? These are the questions that lie at the heart of this appeal.

 

And for Lord Dyson his conclusion, and his dismissal of the Government appeal (with varying degrees of enthusiasm all of the eight Supreme Court justices dismissed the appeal, save for Lord Clarke), was to refer back to in R v Davis [2008] UKHL 36, [2008] 1 AC 1128 and to hold:

 

[35] I return to the questions that lie at the heart of this appeal. In my view, the analogy with Davis is compelling. As I have said, the fact that Davis was a criminal case is not material. The issues considered were of application to trials generally. It decided that, subject to certain exceptions and statutory qualifications, the right to be confronted by one’s accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The closed material procedure excludes a party from the closed part of the trial. He cannot see the witnesses who speak in that part of the trial; nor can he see closed documents; he cannot hear or read the closed evidence or the submissions made in the closed hearing; and finally he cannot see the judge delivering the closed judgment nor can he read it.

 

Exceptions to rule refusing closed material procedure

 

As a coda to his judgment Lord Dyson dealt with exceptions to his normal rule as to disallowance of closed material procedures. In agreement, he said, with the minority view of Lord Clarke, he said:

 

[63] … there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice. Thus as Baroness Hale of Richmond said inSecretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 AC 440 at para 58:

‘If….the whole object of the proceedings is to protect and promote the best interests of a child, there may be exceptional circumstances in which disclosure of some of the evidence would be so detrimental to the child’s welfare as to defeat the object of the exercise.’

Wardship proceedings are an obvious example of such a case: see In re K (Infants) [1965] AC 201, per Lord Devlin at p 241A. Cases involving children raise different considerations from those which arise in ordinary civil litigation. That is because the interests of children are paramount. It follows that where the interests of the child are served, so too are the interests of justice.

 

The same applies to commercial interests, where disclosure might ‘render the proceedings futile’ (para [64]). However, he went on:

 

[65] In my view, the children and confidentiality cases cannot be relied on to justify creating a rule of general application in ordinary civil litigation. These are two narrowly defined categories of case where a departure from the usual rules of procedure has been held to be justified….

 

Discretion in wardship to restrict disclosure to a party

 

In re K (Infants) [1965] AC 201 the House of Lords considered whether, in wardship proceedings, they were entitled to deny to a mother access to a medical report prepared for the Official Solicitor. They held that in his/her discretion a judge was entitled to deny access to information, in the interests of a child. Lord Devlin started from ‘the ordinary principles of a judicial inquiry’ (per Upjohn LJ in the Court of Appeal):

 

They include [said Lord Devlin] the rules that all justice shall be done openly and that it shall be done only after a fair hearing; and also the rule that is in point here, namely, that judgment shall be given only upon evidence that is made known to all parties. Some of these principles are so fundamental that they must be observed by everyone who is acting judicially, whether he is sitting in a court of law or not; and these are called the principles of natural justice. The rule in point here is undoubtedly one of those.

 

Lord Devlin continued (at 240 to 241):

 

This is the essence of the matter. Where the judge sits as an arbiter between two parties, he need consider only what they put before him. If one or other omits something material and suffers from the omission, he must blame himself and not the judge. Where the judge sits purely as an arbiter and relies on the parties for his information, the parties have a correlative right that he should act only on information which they have had the opportunity of testing. Where the judge is not sitting purely, or even primarily, as an arbiter but is charged with the paramount duty of protecting the interests of one outside the conflict, a rule that is designed for just arbitrament cannot in all circumstances prevail.

 

Where the interests of a child requires it, the position remains as it was in 1965: that the court can restrict disclosure to a party. A form of closed material procedure can operate. But how far?

 

Closed material procedures and a child’s welfare: how far?

 

Lord Mance, with whom Lady Hale agreed, made the point that once the principle of exceptions – which to a restricted degree he accepted – then it could not realistically be said that the court lacked jurisdiction.

 

[114] … once it is accepted, as Lord Dyson does (para 63), that “there are certain classes of case where a departure from the normal rule may be justified for special reasons in the interests of justice”, for example wardship and other cases where the interests of children are paramount, that to my mind also makes it difficult to suggest that the court lacks jurisdiction in a strict sense to vary the basic principles of open and natural justice mentioned in para 107 above.

 

Jurisdiction, he said, is one thing. Exercise of it is quite another. ‘[115] … Principles as important as open and natural justice ought to be regarded as sacrosanct, as long as they themselves do not lead to a denial of justice.’

 

Generally the courts should only permit closed material procedures where Parliament sanctions it – as with Justice and Security Act 2013. Otherwise in civil proceedings such procedures will only very rarely be justified; and those circumstances include children proceedings.

 

Justice and Security Act 2013

 

Justice and Security Act 2013 (JSA 2013) has nothing to do with family law; but the procedures under are looked at to the extent that they may be treated as analogous to proceedings in children proceedings. The exceptions from the right of a person to a fair trial in open court under European Convention 1950 Art 6 is as follows:

 

(1) … the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

JSA 2013 deals with national security. Public order and national security and ‘the interests of juveniles [(ie the welfare of children)] or the protection of the private life of the parties’ are bracketed in Art 6(1) as justifying exclusion of public and press. There seems to be no reason in underlying principle why similar criteria, at least in terms of evidence and procedure, should not be applied, in the very limited circumstances where it may be demanded, in children proceedings as in proceedings which concern national security.

UNLAWFULLY OBTAINED DOCUMENTS:  A NEW LOOK

Court of Appeal look at Imerman documents again

In Arbili v Arbili [2015] EWCA Civ 542 (http://www.bailii.org/ew/cases/EWCA/Civ/2015/542.html) a lawyer’s duties in relation to documents unlawfully obtained by a client was looked at afresh by the Court of Appeal. The court was concerned with a husband’s appeals against two orders in financial remedy proceedings, both of which involved discretionary decisions of the judge below. One related to division of the couple’s assets, which was dismissed.

The second appeal – which is the subject of this article – was of:

[1] … the procedure adopted in a subsequent hearing at which [H] sought directions in his application to set aside the financial order on the basis of the alleged material non-disclosure by [W], and [W]’s application for summary dismissal of that claim.

The interest in the second appeal – which was also dismissed – is that it represents a review by the Court of Appeal (Macur LJ, who gave the judgment, with which Sir Brian Rix agreed) of practical steps to be taken where documents or information are obtained ‘unlawfully’ by one party from the other (Imerman documents, after Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908, [2010] 2 FLR 814: http://www.bailii.org/ew/cases/EWCA/Civ/2010/908.html).

Unlawfully obtained documents

Following the hearing of the financial remedy application (order in September 2013) H ‘came into possession of information obtained unlawfully which he maintained demonstrated that’ a material aspect of W’s case was ‘a sham’ ([30]). His case was that information given to the court by W:

[31] … was inadequate or inaccurate in the light of the materials he had seen. However, he did not make a statement describing what he alleged he had seen in the materials which contradicted the late disclosure on behalf of the wife.

However the ‘lengthy transcript’ of the husband’s application to set aside showed ([33]) ‘that no satisfactory explanation was given in writing or in answer to direct judicial questions as to the means deployed by or on behalf of the husband to obtain the information.’ The court rejected his appeal citing the factors they bore in mind as follows (amongst which can be seen their concern as to H’s failure to explain how the documents were obtained):

[38] … the manner in which the materials were obtained; the husband’s persistent failure to candidly describe the means utilised to do so; the wife’s subsequent and corroborated disclosure; apparent lack of, or minimal relevance to the issues in the case, as demonstrated by subsequent events; the delay; and, the costs – financial and emotional – all pointed to stopping the matter from proceeding further.

Imerman documents and information

In Tchenguiz v Imerman (above) the Court of Appeal considered the law and consequences for a wife, where she (in fact, her brothers on her behalf) had unlawfully obtained information as to her H’s means before he was required by Family Procedure Rules 2010 (FPR 2010) to produce information. The court (it was a judgment of all three: Lord Neuberger MR, Moses and Munby LJJ) concluded their analysis as follows:

[176] It would be surprising if the court in ancillary relief proceedings had no power to exclude evidence which was confidential to the husband and had been wrongly obtained from his records, however outrageous the circumstances of the obtaining of the evidence and however unfair on the husband it would be to admit the evidence. It would be all the more surprising in the light of the Human Rights Act 1998. As was explained by Ward LJ in Lifely v Lifely [2008] EWCA Civ 904, in a case of this type, the decision whether to admit or exclude evidence involves weighing one party’s (in this case, the wife’s) article 6 right to a fair trial with all the available evidence, against the other party’s (the husband’s) article 8 right to respect for privacy….

What the court neither notes here, nor does so when earlier reference is made to it, that in Lifely the Court of Appeal itself received fresh evidence illegally obtained, read it, permitted it to be adduced before them, gave permission to appeal out of time on the basis of it; and all this despite the fact that the evidence was a diary (highly private material). In Tchenguiz the court went on (Macur LJ cites this passage in her [36], but not [176] above):

[177] Accordingly, we consider that, in ancillary relief proceedings, while the court can admit [unlawfully obtained] evidence, it has power to exclude it if unlawfully obtained, including power to exclude documents whose existence has only been established by unlawful means. In exercising that power, the court will be guided by what is “necessary for disposing fairly of the application for ancillary relief or for saving costs”, and will take into account the importance of the evidence, “the conduct of the parties”, and any other relevant factors, including the normal case management aspects. Ultimately, this requires the court to carry out a balancing exercise, something which, we are well aware, is easy to say in general terms but is often very difficult to effect in individual cases in practice.

In UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam), Mostyn J (and see https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/) somehow derives from Tchenguiz the following ‘principles’. He says that if a spouse supplies unlawfully obtained documents to his/her solicitor then the solicitor must not read them but must immediately seek to obtain all of them from the client and must return them, and all copies (both hard and soft), to the other spouse’s solicitor (if s/he has one). The other solicitor, who owes a high duty to the court, will read them and disclose those of them that are both admissible and relevant to the other spouse’s claim, pursuant to his/her client’s duty of full and frank disclosure.

This analysis cannot be found in Tchenguiz and ignores the following critical factors:

  • That the first spouse’s lawyer must see the documents to know if they are relevant (ie should be disclosed); especially – as in Arbili – where there is already a duty to disclose, because proceedings are well-advanced or concluded (ie cases of material non-disclosure)
  • Lawyers must be trusted to read and advise on documents which may be confidential, or even covered by advice privilege (the diary in Lifely was highly confidential, but there was no criticism of the lawyers for the unlawful taker having read it);
  • That the issue demands different treatment according to whether the duty of disclosure and production on a party has yet arisen; and that duty must surely be gauged according to common law principles not according to when recent court rules (eg FPR 2010 Part 5) dictate a form with prescribed production of documents dictate.

Imerman information after Arbili

Of the lawyer’s duties on being presented with unlawfully obtained information or documents Macur LJ said only this (if Lifely was cited to the court, Macur LJ does not mention it):

[35] I recognise the professional difficulties for any legal representative informed of the existence of illicitly obtained materials,…  but this particular topic has been traversed at some length in Imerman v Tchenguiz and others [2010] EWCA Civ 908 sufficiently to give an adequate indication of the steps to be taken. The unlawfully obtained materials must be returned. The recipient’s duty to make any relevant disclosure arising from them within the proceedings is triggered. The ability of the wrongdoer, or their principal, to challenge the sufficiency of the disclosure, is confined to evidence of their memory of the contents of the materials but is admissible.

This is a long way from the categoric terms in which Mostyn J (who took no account of the Court of Appeal decision in Lifely) instructs lawyers as to their professional duties. After what Macur LJ says here, it is to be hoped that UL v BK can be ignored, and that the position according to common law and professional duty can be reverted to.

A procedure for dealing with Imerman information

A procedure for Imerman documents would include:

  • That legal advisers must read documents and information (Lifely): they risk a claim in negligence later if they have overlooked material documents or information which should have been disclosed.
  • Documents should be returned to the other party’s lawyer; but whether or not copies are retained will depend on whether a common law duty to disclose has yet arisen.
  • The taker of the documents must be frank as to how they were obtained (a strong reason why Mr Arbili lost his appeal on the second order (see above).
  • A fair trial is likely to dictate that even unlawfully obtained information be produced in court at trial (Lifely; Jones v Warwick University [2003] EWCA Civ 151).
  • If a party thinks documents or information should be produced application can be made under FPR 2010 r 21.3(5) (touched on inG v G (Legal professional privilege)[1] [2015] EWHC 1512 (Fam), Roberts J at [70]; and see procedure in Family Court Practice 2015. See also https://dbfamilylaw.wordpress.com/2015/05/30/aa-milne-does-it-in-seven-verses/).

David Burrows

2 June 2015

[1] My title

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

CLARITY – OR SHIFTING MEANINGS

A word means ‘what I say it is’

The meaning of a word must be precise in law. Poetry and some prose can paint with words, meaning moving about the page. In humour meaning may be intended to shift or turn around the same word. Humour – as with Humpty Dumpty’s law (Through the Looking-Glass Lewis Carroll): that a word ‘means just what I choose it to mean’ – plays with words. Meanings shift, or are shifted, deliberately. This is what humour does. But law must build with words; and it must build carefully. Good law demands clarity. Clarity is the direct way to understanding.

Three expressions in common legal use can be used to show how the building of structures in law can be corrupted by imprecision: ‘transparency’, ‘disclosure’ and ‘family justice’. The first – ‘transparency’ – has been hijacked by senior family lawyers to mean chosen journalists seeing into what the family courts do. It is not – so far; and thank goodness for it, so far – a word which any statutory instrument or practice direction has tried to define.

‘Transparency’

Transparency, in this family lawyers’ context, means the opposite of what the law says. It is a common law principle that justice must be seen to be done; and that therefore courts must be open. It is of the essence of justice – it is implied in the word, almost – that it be open. But it is accepted by the common law and by statute that there will be times – children proceedings are the easy example – where the need for privacy in a case will override openness; and it is that way around. It follows from these premises, that family law and transparency have nothing to do with one another. It is justice which is transparent. On occasions that transparency may be – rightly, and in the interests of family welfare (say) – eclipsed. Like the moon, when it is eclipsed, the openness remains. It is only temporarily hidden as required in the particular case.

‘Disclosure’ – in law – means that a litigant (A) sets out in a list for his opponent (B) what documents he has. That is not how most laypeople would understand the term; and it is often similarly muddled, carelessly, by lawyers. Once A has listed – disclosed – what documents s/he has, s/he permits inspection of the documents which B wishes to see, normally by sending photocopies. A and B then co-operate, as trial approaches, by preparing a bundle of documents. These are produced to the court. So in truth – and in law – it is inspection and production (the words italicised above) which is what procedural rules require of litigants; and it is this process, confusingly, which many lawyers wrong call ‘disclosure’.

‘Family justice’: justice on family breakdown

‘Family justice’ does not mean justice for the family: it means, or should mean, justice on family breakdown. In practice it has come not to mean justice for all broken families: it means justice only for those with children. This is a remarkably irritating corruption of a perfectly sensible term. It is only a minority (albeit a large minority) of the cases on family breakdown which relate to children; yet it is only that minority – since, for example, the setting up of the ‘Family Justice Council’ – which effectively attracts the previous portmanteau term.

Does all this matter? Yes it does. If I ask for ‘disclosure’ of documents and you send me a suitcase full of bank statements, utilities invoices, company accounts and so on, when I expected – or should have expected – only a four page list, then someone’s time and part of a tree have been wasted. If I speak of ‘family justice’, when I want to write or talk about – all issues relating to family breakdown – for example the work done by the family courts or covered by Family Procedure Rules 2010 – and you mean only children proceedings, there is potential for a range of misunderstandings. And if I tell you, a journalist friend of mine, that the family court has become ‘transparent’ when in reality some of its proceedings are – or should be – entirely private, then I shall have mislead you as to what the law is.

Clarity must rule

Sir James Munby P speaks of ‘transparency’. Family Procedure Rules 2010 assert that, save where otherwise provided, all proceedings under the rules are ‘private’. In fact both those assertions are, I believe, unlawful. Whatever the President of the Family Division may be entitled to do, the rules may not state something which is unlawful; and nor may I mislead my journalist friend.

And so the discussion comes full circle: to clarity in law. Each word must have a clear meaning which you and I (as lawyers), both understand to mean the same thing; and each word must have the same meaning when we communicate with others. Each building block – each word – must be clear. The structure which the words create will then be strong. Meaning will be as clear as possible. Circumlocution (eg ‘family justice’) or inaccuracy (eg ‘transparency’) can be eliminated. Perfectly respectable words can be restored to their primary use. The structure of communication is further reinforced. Clarity rules.

‘BIAS’ AND FREEDOM OF INFORMATION

A right to know?

This note seeks to answer the question: can a private individual request disclosure of information in relation to an inquiry set up by a Government minister. Specifically can a member of the public insist on disclosure of information as to the qualifications and impartiality of an inquiry panel member to take on the job? Can a member of the public in any way challenge the bias (‘bias’ is a technical legal term in this context already explained in https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/: specifically there in the context of Mrs Fiona Woolf’s appointment to chair a child abuse inquiry) – or possible bias – of a panel member? Can that person see relevant information as to what is known by a Government department of a panel member?

The short answer is that probably a member of the public is entitled to this information under general principles in Freedom of Information Act 2000 s 1(1):

1 General right of access to information held by public authorities.

(1)Any person making a request for information to a public authority is entitled—

(a)to be informed in writing by the public authority whether it holds information of the description specified in the request, and

(b)if that is the case, to have that information communicated to him.

That said, the law on inquiries is not as clear as it might be. I will concentrate here on a discretionary inquiry set up by a minister; but I shall say that for disclosure purposes common law rules for a discretionary inquiry are much the same as those set out for statutory inquiries under Inquiries Act 2005 are much the same.

Freedom of Information Act 2000: Kennedy

The question of the extent to which information can be compelled to be produced by a public body was considered by the Supreme Court recently in Kennedy v The Charity Commission [2014] UKSC 20 (http://www.bailii.org/uk/cases/UKSC/2014/20.html). A journalist, Mr Kennedy, had asked under FOIA 2000 for information from the Charity Commission on George Galloway’s Miriam charity. His request had been refused. The Commission successfully argued – in that particular case – that their refusal was covered by the exemption in FOIA 2000 s 32(2).

The Supreme Court, in agreeing with the Charity Commission (on a 5-2 majority), considered fully the law on openness of public bodies; and, incidentally, the extent to which this was governed by the common law. European Convention 1950 law was only relevant where it diverges from domestic law (as eg in the case of privacy).

Judicial body: the ‘open justice principle’

There is no doubt that judicial processes must be open (subject to certain narrow exceptions: see eg https://dbfamilylaw.wordpress.com/2014/09/01/family-laws-shakey-hold-on-the-common-law/). Lord Toulson summarised his view of the law in this area at paras [110]-[140]. He and the court as a whole take their starting point from his judgement in R (ota Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420:

[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.

Any secrecy by a court as to information held by it (the Guardian wanted to see papers read by a magistrates’ court district judge: and so they should said the Court of Appeal) must be justified either by statute, or – as in the Guardian case – by common law principles. Each case depends on its facts (Lord Toulson: para [113]); but denial of access must be justified:

[114] There may be many reasons why public access to certain information about the court proceedings should be denied, limited or postponed. The information may be confidential; it may relate to a person with a particular vulnerability; its disclosure might impede the judicial process; it may concern allegations against other persons which have not been explored and could be potentially damaging to them; it may be of such peripheral, if any, relevance to the judicial process that it would be disproportionate to require its disclosure; and these are only a few examples.

If parliament is to make an exception to common law rules, especially in relation to a fundamental right, it must do so expressly and clearly (R v Secretary of State for the Home Department, exp Simms [1999] UKHL 33), as it has done in the case of children proceedings (Administration of Justice Act 1960 s 12; and see FOIA 2000 s 32, which exempts court records). If open justice is to be inhibited it must be by the common law or specific statutory exception.

But does this rule apply to inquiries? Lord Toulson considered the definition of ‘inquiry’ in FOIA 2000 s 32(4)(c) namely ‘(c) … any inquiry or hearing held under any provision contained in, or made under, an enactment’. This definition does not include a discretionary inquiry; but there is no reason why the law should treat disclosure in respect of such inquiries differently. So, said Lord Toulson, as far as inquiries are concerned:

[124] The considerations which underlie the open justice principle in relation to judicial proceedings apply also to those charged by Parliament with responsibility for conducting quasi-judicial inquiries and hearings. How is an unenlightened public to have confidence that the responsibilities for conducting quasi-judicial inquiries are properly discharged?

Speaking for all his fellow Supreme Court Justice, he went on: ‘… information about statutory inquiries should be available to the public, unless there are reasons to the contrary’ (para [130]). Disclosure of information was determined entirely by the ‘public interest’:

[129] The power of disclosure of information about a statutory inquiry by the responsible public authority must be exercised in the public interest. It is not therefore necessary to look for a particular statutory requirement of disclosure. Rather, the question in any particular case is whether there is good reason for not allowing public access to information which would provide enlightenment about the process of the inquiry and reasons for the outcome of the inquiry.

‘Process of the inquiry’: information as to expertise and impartiality

If challenged a judge must justify his/her ‘bias’, or possibility of partiality. Is anyone chairing or empanelled for an inquiry in any different position? The rule against bias is one of the cardinal rules of administrative, as it is of civil, law. A statutory panel member is required to be impartial. Inquiries Act 2005 s 9 imposes on the minister who appoints a statutory inquiry the following duty:

9 Requirement of impartiality

(1)The Minister must not appoint a person as a member of the inquiry panel if it appears to the Minister that the person has—

(a)a direct interest in the matters to which the inquiry relates, or

(b)a close association with an interested party,

unless, despite the person’s interest or association, his appointment could not reasonably be regarded as affecting the impartiality of the inquiry panel.

(2)Before a person is appointed as a member of an inquiry panel he must notify the Minister of any matters that, having regard to subsection (1), could affect his eligibility for appointment.

(3)If at any time (whether before the setting-up date or during the course of the inquiry) a member of the inquiry panel becomes aware that he has an interest or association falling within paragraph (a) or (b) of subsection (1), he must notify the Minister.

(4)A member of the inquiry panel must not, during the course of the inquiry, undertake any activity that could reasonably be regarded as affecting his suitability to serve as such.


A leading textbook in this area – Administrative Law (2009) Wade & Forsyth (10th Ed) – would say that this provision is redundant. It represents the common law. There is no reason therefore why a discretionary inquiry should not be the same as a judge, in terms of a minister being satisfied as to ‘bias’ in an inquiry panel member. It is for a minister to ‘satisfy’ him/herself on this account. There is plainly a public interest in knowing – by disclosure of information – that this has been done properly and on the basis of full information.

Much the same goes for a panel member’s ‘expertise’, and the public interest in knowledge on that score. Inquiries Act 2005 s 8(1)(a) states that, in appointment of a panel member, ‘the Minister must have regard—(a)to the need to ensure that the inquiry panel (considered as a whole) has the necessary expertise to undertake the inquiry’.

Confidential information

Finally, to what extent can a minister claim ‘confidentiality’: that information about expertise and bias/impartiality is confidential? FOIA 2000 deals with the question:

41Information provided in confidence.

(1)Information is exempt information if—

(a)it was obtained by the public authority from any other person (including another public authority), and

(b)the disclosure of the information to the public (otherwise than under this Act) by the public authority holding it would constitute a breach of confidence actionable by that or any other person.

(2)The duty to confirm or deny does not arise if, or to the extent that, the confirmation or denial that would have to be given to comply with section 1(1)(a) would (apart from this Act) constitute an actionable breach of confidence.

It must always be recalled that confidentiality is a question for protecting the information of the confidor. By definition, in the case of panel member, the information is no longer private (ie belonging to the individual alone: here it has been passed to the minister). The information is available – or should be – to a Government department.

Open information as to bias

A judge whose bias – actual or ‘perceived’ – is challenged by a party to litigation must justify his/her lack of bias in open court, or must recuse /him/herself (ie take him/herself off the case; see eg Magill v Weeks (orse Porter v Magill) [2002] 2 AC 357, [2001] UKHL 67). Inquiries are judicial or semi-judicial in the same way as is the court process, so that information as to inquiries must be public (Kennedy at paras [124] and [130]: see above). There is no reason in principle why information as to a panel member should not be as open to the public as is a judge’s defence of any party’s challenge to his/her bias.

‘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.