Disclosure and the family proceedings backwater

Since April 2010 family proceedings covered by Family Procedure Rules 2010 (FPR 2010) cannot directly use Civil Procedure Rules 1998 (CPR 1998). With effect from then, CPR 1998 r 2.1(2) prevented use of CPR 1998 in family proceedings. Family proceedings were now in their own procedural backwater. Till April 2010 (when FPR 2010 came into force) all the original civil proceedings rules (Rules of the Supreme Court 1965 and County Court Rules 1981) applied to family proceedings unless specifically disapplied by Family Proceedings Rules 1991. In the brave new family proceedings world, all rules in FPR 2010 were solely for family proceedings.

In practice many of the “new” rules were derived directly from CPR 1998. Most of the rules from FPR 2010 Pt 20 (interim remedies) to Pt 25 (expert evidence) were taken almost word for word from equivalent rules in CPR 1998. A substantial gap is FPR Pt 21, titled Miscellaneous rules about disclosure and inspection of documents. In FPR 2010 this has three rules (one of them merely a basic definition rule which states what “disclosure” means). In the CPR the equivalent part (CPR 1998 Pt 31) has 22 rules.

Why the gap? I think partly the family proceedings rule-makers (ie Family Procedure Rule Committee) were tired in 2010 when they got to that point, and they never got back to deal with Pt 21; and, in most respects, disclosure does not – mostly – have the same significance in family as in civil proceedings.

All this matters because a number of CPR 1998 rules represent the common law and therefore apply to family proceedings just as they apply to civil proceedings generally; and this applies to disclosure in family proceedings.

So what of the “implied undertaking” not to release or otherwise pass on (“use” in CPR 1998 terminology) documents disclosed under compulsion of the duty to disclose relevant documents? This undertaking – so far as it applies to family proceedings – is especially important to financial relief proceedings because of the “duty of full relevant disclosure” (per Lord Scarman in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813) of a party’s financial “circumstances” (Matrimonial Causes Act 1973 s 25)?

The importance of the subject comes into full relief in 2020 for two main reasons:

  • It is an important element in balancing privacy against confidentiality in family proceedings as explained by the Court of Appeal in Clibbery v Allan [2002] EWCA Civ 45, [2002] Fam 261, [2002] 1 FLR 565 and in R (Guardian News and Media Ltd) v City of Westminster Magistrates’ Court [2012] EWCA Civ 420, [2013] QB 618.
  • If you breach the undertaking you may face an application to be committed for contempt of court (ie interference with the due administration of justice) as did Harriet Harman in 1982.

Harman v Home Office

The modern law on the “implied undertaking” derives from Harman v Secretary of State for the Home Department [1983] 1 AC 280, [1982] 2 WLR 338. The requirement that a party must disclose confidential documents and other private information in any civil proceedings is regarded as a very real invasion of that party’s privacy. The retention of confidentiality in documents is treated as essential to encourage frankness between parties. Lord Denning MR explained this in Riddick v Thames Board Mills Ltd [1977] QB 881, CA at 896:

“Compulsion is an invasion of a private right to keep one’s documents to oneself. The public interest in privacy and confidence demands that this compulsion should not be pressed further than the course of justice requires…. In order to encourage openness and fairness, the public interest requires that documents disclosed on discovery are not to be made use of except for the purposes of the action in which they are disclosed.”

In Harman v Home Office the House of Lords was dealing with an application by the Home Office to commit Harriet Harman, then solicitor with National Council for Civil Liberties (now Liberty), now a Labour MP. She acted for a man (Williams) who was in prison for a substantial period of time. Her help for him involved civil proceedings against the Home Office. In those proceedings the Home Office were required to disclose (in a process then described as “discovery”) certain documents. Counsel read out in open court a variety of the disclosed documents to the court over five days. The judge ultimately held that certain of them were not admissible as evidence; but before that decision was made Miss Harman showed copies of all documents to a Guardian journalist who wrote an article on them, critical of the Home Office. Lord Scarman described this, [1983] 1 AC 280, 310, as that:

“Miss Harman has been held to have used for an improper purpose those documents which came into her hands in her capacity as his solicitor. She is said to have used them in a manner inconsistent with her undertaking, which the law implies, not to use for any purpose other than the conduct of her client’s case documents disclosed on discovery in the suit.”

The question for the House of Lords was whether or not the documents should have been shown to the Guardian. All judges accepted that Miss Harman had genuinely thought she was entitled to show the journalist the documents.

By a majority of three to two the Lords held that Miss Harman was in contempt (though committal did not follow). Lord Scarman and Lord Simon were the two in the minority. Jointly they collaborated on a dissenting speech delivered by Lord Scarman, in which they would have allowed Harman’s appeal. They linked their arguments especially to the open justice principle (at 316). Under the heading “Public policy and the duty of the judge” they explained why non-parties should be entitled to see some documents (as Miss Harman had made possible), at p 316:

“Reasonable expedition is, of course, a duty of the judge. But he is also concerned to ensure that justice not only is done but is seen to be done in his court. And this is the fundamental reason for the rule of the common law, recognised by this House in Scott v Scott [1913] AC 417, that trials are to be conducted in public. Lord Shaw of Dunfermline referred with approval, at 477, to the view of Jeremy Bentham that public trial is needed as a spur to judicial virtue. Whether or not judicial virtue needs such a spur, there is also another important public interest involved in justice done openly, namely, that the evidence and argument should be publicly known, so that society may judge for itself the quality of justice administered in its name, and whether the law requires modification. When public policy in the administration of justice is considered, public knowledge of the evidence and arguments of the parties is certainly as important as expedition: and, if the price of expedition is to be the silent reading by the judge before or at trial of relevant documents, it is arguable that expedition will not always be consistent with justice being seen to be done.”

That the undertaking applies in family proceedings was explained in Clibbery v Allan [2002] Fam 261. There documents held not to be subject to the undertaking were handed over by Miss Clibbery to the Daily Mail; and Mr Allan was refused an injunction to prevent this.

Civil Procedure Rules 1998 r 31.22

CPR 1998 r 31.22, in force since April 1999, has aimed to adopt the version of the law defined by Lords Simon and Scarman in their joint speech. Under the heading “Subsequent use of disclosed documents…” 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.

(3) An application for such an order may be made –

(a) by a party; or

(b) by any person to whom the document belongs.”

As already mentioned, r 31.22 is one of those rules which have been made by civil proceedings rule-makers, and which have not been reproduced by Family Procedure Rule Committee for family proceedings. The position defined by the majority in Harman is the opposite of what is set out in r 31.22.

Rule 31.22 is treated as having changed the law for civil proceedings; but what is the position for family proceedings? Are family lawyers – and interested journalists and other reporters – fixed with the law as under Harman; or can they great the brave new world of r 31.22? In Clibbery v Allan [2002] Fam 261 there is no reference to r 31.22(1), only to 31.22(2) in the following context from Dame Elizabeth Butler-Sloss P:

“[66] Both in civil and in family proceedings the court controls the use of documents during the proceedings and in certain instances after the end of the proceedings…. CPR r 31.22(2) empowers the court to restrict or prohibit the use of documents disclosed in proceedings, even if they have been read to or by the court, or referred to, at a public hearing.”

So Clibbery v Allan is little direct help. However, that case includes an analysis by Dame Elizabeth of then recent law on the undertaking, including Hobhouse J in Prudential Assurance Co Ltd v Fountain Page Ltd [1991] 1 WLR 756 (cited in Clibbery at [63]), where he said (at p 769):

“… it is clear that there is no blanket restriction on the use of documents and information acquired in the course of litigation. Prima facie there is no restriction. The compulsion exception is confined to documents and information which a party is compelled, without any choice, to disclose. Where a party has a right to choose the extent to which he will adduce evidence or deploy other material, then there is no compulsion even though a consequence of such choice is that he will have to disclose material to other parties.”

The rationale for the implied undertaking, or “collateral purpose rule”, was explained by Jackson LJ in Tchenguiz v Director of the Serious Fraud Office [2014] EWCA Civ 1409 as follows:

“[55] Before the enactment of the Civil Procedure Rules 1998 it was an established rule that documents disclosed upon discovery could not be used for any collateral purpose without either the consent of the disclosing party or the leave of the court. See Riddick v Thames Board Mills Ltd [1977] QB 881Harman v Secretary of State for the Home Office [1983] AC 280. I shall refer to this as ‘the collateral purpose rule’.

[56] The courts have stated the rationale of the collateral purpose rule on a number of occasions. First, a party receiving documents on discovery impliedly undertakes not to use them for a collateral purpose. Secondly, the obligation to give discovery is an invasion of the litigant’s right to privacy and confidentiality. This is justified only because there is a public interest in ensuring that all relevant evidence is provided to the court in the current litigation. Therefore the use of those documents should be confined to that litigation. Thirdly the rule against using disclosed documents for a collateral purpose will promote compliance with the disclosure obligation.”

An “implied undertaking” for family proceedings

Tchenguiz v SFO is civil proceedings and does not move the discussion on family proceedings much further forward. The litigant is still in the FPR 2010 backwater created by CPR 1998 r 2.1(2) (see above).

Does Ord 24 r 14A of the Rules of the Supreme Court 1965 help, perhaps? That amendment rule was introduced to mitigate the harshness of Harman. It came into effect on 1 October 1987. It says that the “implied undertaking” “shall cease to have apply to such document after it has been read to or by the court, or referred to in open court” unless the court otherwise orders.

That would have applied to family proceedings then, and until April 2010. Is there any reason why it should not represent the common law and still apply to family proceedings now? If RSC r 14A applied over the 12 years from October 1987, surely it cannot be said it somehow to have gone underground after that?

An equivalent of CPR r 31.22 may not directly apply to family proceedings; but the common law – in the form of RSC r 14A and the later CPR r 31.22 – will surely admit that it does? Where documents are disclosed and read out in court, an answer to this question will be important to a modern Harriet Harman and could make the difference between her being sent to prison or not. Two cases of particular interest to the press at present – Akhmedova v Akhmedov [2019] EWHC 2561 (Fam), Knowles J, and In re Al M (Children) [2020] EWHC 122 (Fam), Sir Andrew McFarlane P, – have been working their way through the family courts. An extensive measure of publicity applies to the latter (albeit that it is children proceedings). If documents read in court were made the subject of press reports in either case, which way might a contempt application in family proceedings go? (See perhaps another Scarman (then LJ) case of Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA, for help with an answer…)


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