By David Burrows
Disclosure: reliance of the family law on common law and civil proceedings rule
“Disclosure” has had extensive press recently, mostly in relation to criminal proceedings. In the more narrow legal press, it is of concern to civil lawyers, especially in the burgeoning field of electronic disclosure and electronic access to documents and other material. Family judges groan under the weight — especially in care proceedings — of extensive documentary disclosure. This article considers the extent to which disclosure in family proceedings is governed by the common law.
Part 1 looks at disclosure generally. It contrasts briefly criminal proceedings (statute-based) with common law based civil proceedings; and then goes on to review the impact of Civil Procedure Rules 1998 (CPR 1998) on family proceedings. Part 2 will provide two examples of disclosure rules derived directly into Family Procedure Rules 2010 (FPR 2010) Pt 21 from CPR 1998.
Disclosure (formerly “discovery”) in civil proceedings is based on equitable principles, and is now defined entirely by the common law. There is no statutory definition of “disclosure” in civil proceedings; or of the concepts which lead from it: “inspection” of disclosed material (CPR 1998 rr 31.3(1) and 31.12), and “production” of documents in court. For example, in B v B (Matrimonial proceedings: discovery)  Fam 181, 193 Dunn J — in a passage frequently still cited as authoritative (see eg in R v Lambert  UKHL 37,  2 AC 545, per Lord Clyde at ) explained the law. He said of disclosure (then discovery, in a case where a husband was applied for to disclose material belonging to a company he controlled):
“I will conclude this part of my judgment by summarising my conclusions as to the law:… A party to a suit must disclose all the documents in his possession, custody or power which are relevant to the matters in issue. The court has a discretion whether or not to order him to make such disclosure, and also has a discretion whether or not to order him to produce the documents for inspection by the other party or the court….”
Common law and court rules
Many of the common law’s provisions have been codified in court rules. For family lawyers much of the law is in CPR 1998 Pt 31 and scattered desultorily in FPR 2010 Pts 9, 12, 21 and 27. It is worth noting that till the outlawing of formal reliance of family lawyers on CPR 1998 (CPR r 2.1(2)), family proceedings were governed (till April 2011) by the original civil proceedings rules, namely Rules of the Supreme Court 1965 (RSC 1965) Order 24 in exactly the same way as all other civil proceedings (ie FPR 1991, the earlier family proceedings rules which applied only to the extent that they differed from RSC 1965).
Gwyneth Knowles J affirmed this de facto reliance of family proceedings on civil proceedings rules recently in Lancashire County Council v A, B and Z (A Child: Fact Finding Hearing: Police Disclosure)  EWHC 1819 (Fam) at  (see also in Part 2). She referred to Moylan J in Tchenguiz-Imerman v Imerman  EWHC 4047 (Fam),  1 FLR 232 who had explained the position — in that case, as whether legal professional privilege applied to particular documents — in the following terms:
“ There is no specific rule in [FPR 2010] which governs the issue of privilege. The general rule is that parties are required, after the preliminary exchange of documents, to make such disclosure as may be required by the court. I have, therefore, for guidance, been referred to [CPR 1998]…”
Moylan J went on to cite CPR 1998 r 31.10(3), and commented (at ) that it “deals with the procedure for standard disclosure … It provides that each party has to serve on the other a list of documents in the relevant form.” In particular — the point at issue in the case — the list must set out “those documents in respect of which the party claims a right or duty to withhold inspection” (r 31.10(4)); that is, for example, documents said, by the party with control of the documents, to be covered by privilege. A procedure is provided by West London Pipeline and Storage Ltd v Total UK Ltd  EWHC 1729 (Comm) (Beatson J) for the court to deal with documents said to be privileged, or otherwise covered by privileged (see also Part 2).
“Disclosure” in criminal proceedings: an introduction
By contrast with civil proceedings, disclosure in criminal proceedings — which has been so much in the press recently — is, in short-hand terms, covered by Criminal Procedure & Investigations Act 1996, s 3 (as amended). Section 3 deals with “material… material” and “recorded” material (s 3(3)); and says, under the heading “Initial duty of prosecutor to disclose”:
“(1) The prosecutor must —
(a )disclose to the accused any prosecution material which has not previously been disclosed to the accused and which might reasonably be considered capable of undermining] the case for the prosecution against the accused or of assisting the case for the accused] , or
(b) give to the accused a written statement that there is no material of a description mentioned in paragraph (a).
(2) For the purposes of this section prosecution material is material —
(a) which is in the prosecutor’s possession, and came into his possession in connection with the case for the prosecution against the accused, or
(b) which, in pursuance of a code operative under Part II, he has inspected in connection with the case for the prosecution against the accused.”
This article concentrates on civil proceedings, and in particular, in family cases.
“Disclosure” in civil proceedings consists of the passing on of information that a relevant document, or other material, exists or has existed. The information is passed by one party to others (CPR 1998 r 31.2; FPR 2010 r 21.1(1). In civil proceedings this is done “by list” (CPR 1998 r 31.10(2)). No list procedure is provided by FPR 2010 (see Tchenguiz-Imerman (above)). This omission — in its turn — leads to long-running disputes between judges and parties (especially in children proceedings) as to the extent to which material can be produced at trial, or in case management of a case. And, most recently the omission can be seen in yet a further attempt — of questionable legality — to inhibit the extent of production of documents.
“Disclosure” and family proceedings
Thus in family proceedings — especially in Children Act 1989, Part IV (“care”) proceedings — FPR 2010 PD27A paras 4 and 5 has been amended yet again (from 31 July 2018). Thus, for example, the maximum length of specific documents (eg statements, skeleton arguments, experts reports) is proscribed (para 5.2A.1) with the result that:
“5.1 Format of the bundle
Unless the court has specifically directed otherwise, being satisfied that such direction is necessary to enable the proceedings to be disposed of justly, the bundle (if a paper bundle) shall be contained in one A4 size ring binder or lever arch file limited to no more than 350 sheets of A4 paper and 350 sides of text and (if an electronic bundle) shall be limited to 350 pages of text.”
This cuts directly across the rule of law — touched upon by FPR 2010 PD27A para 4.1 — that all relevant evidence — documents, information and other relevant material — must be before a court if it is to make a decision. In the extreme circumstance of closed material procedures Lord Neuberger in Bank Mellat v Her Majesty’s Treasury (No 1)  UKSC 38,  AC 700 at  commented on Lord Dyson’s judgment in Al Rawi v The Security Service  UKSC 34,  AC 531 (that the common law generally could not create its own procedures (outside CPR 1998 Pt 82) for closed materials) as follows:
“ …. fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (“the excluded party”) knowing, or being able to test, the contents of that evidence and those arguments (“the closed material”), or even being able to see all the reasons why the court reached its conclusions.”
Closed material procedures provide the extreme aspect of this subject: rare indeed in any civil proceedings, but not unknown, including in family proceedings (as will be seen in Part 2). Such procedures do, however, emphasise the principle of all relevant material being available equally to the parties and to the judge who will try the case.
CPR 1998 and family proceedings
It will surprise few lawyers to find that the FPR 2010 rule-makers are unclear on the subject of disclosure in family proceedings. CPR 1998 Pt 31 provides 22 rules. Only three rules are thought to be needed by FPR 2010 Pt 21. It is left to family lawyers to work out their procedure from case law (common law), which is best summarised by CPR 1998 Pt 31. The family lawyer must adapt procedures from civil proceedings from their three rules.
Two examples of where the common law (as codified in CPR 1998 Pt 31) is essential to supplement the law and procedure in family proceedings, and a case law based explanation of the two substantive rules in FPR 2010 Pt 21 (both derived directly from CPR 1998 and considered in Part 2) will now follow.
A question arises in any civil proceedings: to what extent can a party pass on — “use” — documents which arose in the proceedings. The common law position has always been that where a party has been compelled by involvement in court proceedings to disclose documents, this is on the basis that that disclosure imposes on the receiving party stern restrictions as to onward release to third parties. This restriction is balanced by the open court requirement that where documents have been read in court they should be openly available (save where proceedings have been heard in secret: eg children proceedings and involving patents or private finance). This was explained by Lord Diplock in Home Office v Harman  1 AC 280, 300:
“… The use of discovery involves an inroad, in the interests of achieving justice, upon the right of the individual to keep his own documents to himself; it is an inroad that calls for safeguards against abuse, and these the English legal system provides, in its own distinctive fashion, through its rules about abuse of process and contempt of court.”
From this view of disclosure (then “discovery”) had developed that discovery should be on terms only that it was subject to a receiving parties’ “implied undertaking” that on production of documents following discovery then no-one may release documents (even though they had been read out in court) to a third party (eg the press). These common law rules applied equally in family proceedings.
On the coming into operation of CPR 1998 Pt 31 the direct effect of the “implied undertaking” was intended to be mitigated so that where documents have been read in court; where the parties agree or where the court so orders, documents may be “used” for purposes other than the proceedings in question (see CPR 1998 r 31.22(1)). The rationale for the implied undertaking, or “collateral purpose rule”, is explained by Rupert Jackson LJ in Tchenguiz v Director of the Serious Fraud Office  EWCA Civ 1409,  WLR (D) 461 as follows:
“ 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.”
The undertaking, which is “implied” by the law, is to the court and to the party who discloses. Breach of the undertaking can be punished as a contempt. Thus the normal impulse of the common law to openness in litigation, is subject to this important exception in the case of disclosed documents (save where they have been read to or by the court at a hearing in public). The fact that a case was heard in private does not necessarily dictate whether or not documents read in court may be released (see eg Clibbery v Allan  EWCA Civ 45,  Fam 261,  1 FLR 565 per Dame Elizabeth Butler-Sloss P at  and  where Ms Clibbery was entitled to release to the press documents which had been produced by Mr Allan in proceedings under Family Law Act 1996 Part 4 held in private).
Release to third parties, or other publication, will not always be permitted. For example, in S v S (Inland Revenue: Tax Evasion)  2 FLR 774, in financial relief proceedings, Wilson J found that the husband had evaded payment of tax. The wife’s brother sent a copy of the judgment to the Inland Revenue. The Inland Revenue applied to keep the transcript and also sought leave to inspect affidavits and documents produced at the substantive hearing and to bespeak a transcript of the oral evidence. The judge dismissed the application: the seriousness of the husband not paying tax was outweighed by the importance of the public interest that in financial relief proceedings the parties should be candid with the court.
Right to inspection of a disclosed document
In Lancashire County Council v A  EWHC 1819 (Fam), Gwyneth Knowles J recalls the comment of Moylan J in Tchenguiz-Imerman v Imerman (above) in the following terms:
“ Moylan J (as he then was) pointed out in Tchenguiz-Imerman v Imerman [(above)] that FPR 2010 does not provide a disclosure code for parties to family proceedings. Recourse should be had to the common law position as now encapsulated in [CPR 1998]. These set out a more detailed code than the FPR for disclosure and inspection between parties. I note that the CPR 1998 makes provision for the inspection of documents between parties to be refused on the grounds that this would be disproportionate [CPR 1998 r 31.3(2)].”
Family Court Practice 2018 draws attention to the Moylan J case (see p 1752); and then in its commentary on r 31.3(2) it emphasises the importance of proportionality, as also mention by Gwyneth Knowles J. The editor of the commentary points out that the first the disclosing party must take a view on whether inspection of particular documents is disproportionate. Without proper lists this is difficult to achieve; but High Court judges have not referred to this.
The court will generally refuse inspection if to order it would be disproportionate, oppressive for a party required to disclose (see Hildebrand v Hildebrand  1 FLR 244) or it is regarded as irrelevant to the issues before the court (all factors specifically referred to in the 1965 discovery rules, namely RSC 1965 Ord 24 r 1; and see B v B (Matrimonial proceedings: discovery) (above)).
As to proportionality: at this stage, the party disclosing documents will have in mind the principle of “proportionality” within the terms of the overriding objective in FPR 2010 r 1.1(2)(c); in particular “the importance of the case”, “the complexity of the issues” involved in the case and the cost to the parties (in the context of the case) of disclosure and of production and inspection of the documents concerned.
Tchenguiz-Imerman v Imerman (above) itself provided an example of how CPR 1998 can be applied to explain the law in family proceedings. Two rules, as already mentioned, are derived directly from CPR 1998; but in application by family judges they have been operated in a way which does not apply the common law in a way which would be recognised by civil lawyers. This will be explained in Part 2 of this short series.
15 August 2018
Featured image: Paperwork by Sarah, via Flickr creative commons, reproduced with thanks.