Continuing his series discussing the impact on family law and practice of legal developments in other areas, David Burrows considers the grounds on which one party in proceedings may restrict the disclosure to one or more other parties of documents and other materials before the court, and the scope and procedure for doing so.

Disclosure and a fair trial

Disclosure of all material – documents and information – on which the court is to decide a case is part of a party’s right to a fair trial (and see European Convention on Human Rights (1950), Art 6(1)); and all material must be available equally to each party and to the judge. Disclosure in these terms ensures that all parties and the court are able to consider the same material before the court makes a decision. Any restriction on disclosure to one or more parties may conflict with that party’s rights under Art 6(1); and can only be justified by the balancing of any greater, but higher conflicting, right. To what extent can this greater right permit the withholding of relevant documents; and if material is to be withheld, how is this done?

The recent history of the right to full disclosure was explained by Lord Bingham in Secretary of State for the Home Department v MB [2007] UKHL 46; [2008] 1 AC 440; [2007] 3 WLR 681 (a case about closed material in the earlier days of that procedure). Two cases stood out from the 1960s, which remain good law and which emphasise the importance of a defendant knowing what is being said in a case. In particular a party must know what is being said against him or her. The judge must not (as Lord Denning put it) hear one party “behind the back of the other”. As Lord Bingham explained:

[29] In Kanda v Government of Malaya [1962] AC 322, 337, the Privy Council (per Lord Denning) described the right to be heard as one of the essential characteristics of natural justice. But he pointed out: ‘If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them … It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other.’”

Lord Bingham went on to quote from Ridge v Baldwin (where the House of Lords dealt with a case of a sacked Chief Constable had not had the opportunity to explain his case to the local watch committee before they sacked him):

[29] … Lord Morris of Borth-y-Gest repeated this ruling in Ridge v Baldwin [1964] AC 40, 113–114: ‘It is well established that the essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet: Kanda v Government of Malaya. My Lords, here is something which is basic to our system: the importance of upholding it far transcends the significance of any particular case.’”

Confidential information of a fifteen year old, and care proceedings

The issue has arisen in family proceedings in Local Authority X v HI  [2016] EWHC 1123 (Fam), [2017] 1 FLR 1362, where a 15 year old boy (‘HI’) was involved in care proceedings. He had said things to professionals which he wanted them to be prevented from disclosing to his father and step-mother generally and in the proceedings. The parents pressed for disclosure. If the evidence was relevant to an issue before the court they would normally be entitled to it. Roberts J considered an application on behalf of HI for withholding of the evidence (the thrust of the case is blunted a little, since she thought the evidence to be of only tangential relevance: its disclosure could have been refused on that ground alone).

Roberts J took account of the fact that HI was Gillick-competent (see Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7; [1986] AC 112; [1986] 1 FLR 224: when may a mature child refuse to permit access by his or her parents to confidential information held by a doctor; and, by extension, by other professional). His views, she said, ‘deserve the court’s respect’ ([2016] EWHC 1123 (Fam) at [60]); but he was but one party in relation to the disclosure issue. HI’s parents’ rights under ECHR Art 6 (to a fair trial) and Art 8 (to respect for family life) must be balanced alongside his. She agreed, having balanced the rights of the parties, that HI and the local authority need not disclose the evidence.

So what steps does a party take if he, she or a local authority believe that they have relevant material; but that this material, they say, should not be disclosed? This may be because it is covered by a legal principle which enables it to be excluded (eg privilege); or because, the evidence being confidential, a party (like HI) should not be required to disclose it. Separately (and not covered here) there is public interest immunity: whether a public body should be required to disclose information which may be immune from disclosure in the public interest.

Procedure for withholding evidence

Family Procedure Rules 2010 (“FPR 2010”) provide for this in r 21.3. This rule appears not to have been referred to the judge in Local Authority X v HI. However, the common law and European Convention 1950 principles on which r 21.3 is based were considered by Munby J in the Family Division in Re B (Disclosure to Other Parties) [2001] 2 FLR 1017. Subsequently the Court of Appeal have approved Munby J’s approach (see A Local Authority v A [2009] EWCA Civ 1057; [2010] 2 FLR 1757 at [38]).

In Re B the mother’s four children were in care under interim orders. She was now married to the father of the fourth child and had been married to the father of the first two. The unmarried father (‘R’) of the third child was joined in the care proceedings. He wanted to see all the filed documents. He was seeking contact with his child, now aged 6 (his parental responsibility and contact applications had already been dismissed). The mother alleged that serious violence had been inflicted by R on both her and the children, including his own child. She wished to limit the ambit of disclosure to him (not to other). She said it would violate her and the children’s privacy.

Munby J made clear that in ‘in human terms’ he entirely understood the mother’s opposition to disclosure to R. But what was the position in law? In terms subsequently approved by the Court of Appeal (in Re X (Adoption: Confidential Procedure) [2002] EWCA Civ 828; [2002] 2 FLR 476), Munby J in Re B summarised the balance which must be struck by the court in European Convention 1950 terms on the mother’s argument for withholding documents:

[21] Formulated in the polarised terms to which the forensic pressures of even supposedly non-adversarial proceedings in the Family Division so often lead, the case is therefore one of a conflict or contest between R’s asserted right to a fair trial and the mother’s, and her children’s asserted rights to privacy. Put in Convention terms the contest is said to be one between R’s rights under Art 6 and the mother’s and children’s rights under Art 8.”

The balance must be struck by the judge in the individual case:

[31] … it is not only R’s right to a fair trial which points in the direction of disclosure of the documents to him. So also, it might be said, the children’s (and indeed everyone else’s) right to a fair trial points in the same direction, for only if there is disclosure to all concerned can the children, and indeed all the parties to the proceedings, be confident that the material has been properly tested.
[32]   Put in Convention terms, although the precise nature of the rights in play may differ, it is not merely R’s Art 6 rights which are implicated. The Art 6 rights of the mother and W, and more importantly for present purposes, because the mother and W can waive those rights, the Art 6 rights of the children are also implicated. Indeed, the children’s Art 6 right, as part of their right under Art 6 to a fair trial, to have the materials properly tested, might be said … to point in the same direction as R’s right, as part of his Art 6 right to a fair trial, to have access to the materials so that he can properly test them.”

So, said Munby J (at [32]) the issue is not merely between the father’s Art 6 rights on the one hand and the mother’s and children’s Art 8 rights on the other. Also in the balance are the children’s Art 6 rights. In one sense, therefore, ‘disclosure of the documents to R is not merely for his benefit; it may also … be for the benefit of the children’ if in any way it could affect the right they have to a fair trial.

European Convention on Human Rights: restricted disclosure and a fair trial

Munby J set out the then ECHR jurisprudence fully; but concentrated his conclusions on the Art 6 balance where interests of those other than a party – such as the children, in this case – come into play. In Montgomery v Her Majesty’s Advocate [2000] UKPC D1; [2003] 1 AC 641 at 670F-G, [2001] 2 WLR 779 at 806H Lord Hope said that ‘primacy must be given to the right to a fair trial’. It is not a question of balancing one interest against another. Art 6 does not ‘permit, a balance to be struck between the rights which it sets out and other considerations such as the public interest.’

However, as Lord Bingham said in Brown v Stott (Procurator Fiscal, Dunfermline) [2000] UKPC D3; [2003] 1 AC 681 at 693E, [2001] 2 WLR 817 at 824D, fairness cannot be subject to an unvarying collection of rules. Commenting on the procedure required to guarantee fairness, he said:

“What a fair trial requires cannot, however, be the subject of a single, unvarying rule or collection of rules. It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done.”

From these principles, Munby J deduced the following in respect of fairness and disclosure of documents for the father in Re B:

[56] … although R has an absolute right under Art 6 to a fair trial, and although his absolute right to a fair trial cannot be compromised or watered down by reference to Art 8, he does not necessarily have an absolute and unqualified right to see all the documents in the case.”

Procedure for a claim to withhold evidence

So where does that leave the party to civil proceedings who wants to restrict disclosure of relevant documents or to ask the court to declare that they are covered by public interest immunity? The same rule covers both forms of limitation of disclosure; but in this article public interest immunity – essentially an administrative law remedy – will be left to one side in this article.

The rules are based on common law – such cases as Kanda v Government of Malaya and Secretary of State for the Home Department v MB (above); and, for example, the variety of case law on legal professional privilege and confidentiality. The rules are the same for civil as for family proceedings: namely Civil Procedure Rules (CPR) r 31.19 and FPR r 21.3. The first part of each rule deals with public interest immunity, the latter part with privilege, confidentiality and any other basis on which disclosure might be withheld.

FPR r 21.3(3)-(6), which – in the first instance – would have covered the Local Authority X v HI issue, and the information which the case concerned, is as follows:

21.3 Claim to withhold inspection or disclosure of a document
[…]
(3) A person who wishes to claim a right or a duty to withhold inspection of a document, or part of a document, must state in writing – (a) the right or duty claimed; and (b) the grounds on which that right or duty is claimed.
(4) The statement referred to in paragraph (3) must be made to the person wishing to inspect the document.
(5) A party may apply to the court to decide whether a claim made under paragraph (3) should be upheld.
(6) Where the court is deciding an application under paragraph… (5) it may – (a) require the person seeking to withhold disclosure or inspection of a document to produce that document to the court; and (b) invite any person, whether or not a party, to make representations.”

The procedure for dealing with such the parallel civil proceedings application under CPR 1998 r 31.19 was explained by Beatson J in West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC 1729 (Comm). The burden of establishing that material is capable of being withheld – for example on grounds of legal professional privilege or confidentiality – is on the party who makes the claim for it (ie the right or duty to withhold inspection).

Beatson J summarised his understanding of the law – in that case, in respect of a claim for legal professional privilege – as follows:

[86] … (1) The burden of proof is on the party claiming privilege to establish it…. A claim for privilege is an unusual claim in the sense that the party claiming privilege and that party’s legal advisers are, subject to the power of the court to inspect the documents, the judges in their or their own client’s cause. Because of this, the court must be particularly careful to consider how the claim for privilege is made out and affidavits should be as specific as possible without making disclosure of the very matters that the claim for privilege is designed to protect….

Rule 21.3(7) requires that the application ‘be supported by evidence’. Rule 31.19(7)  and the duties it dictates are explained fully by Beatson J; and, though the relevant practice directions are silent on the point, it is clear that Beatson J expects affidavit evidence. The affidavit in support of the claim for privilege or other confidentiality should comply with the following:

[53] … affidavits claiming privilege whether sworn by the legal advisers to the party claiming privilege as is often the case, or, as in this case, by a Director of the party, should be specific enough to show something of the deponent’s analysis of the documents or, in the case of a claim to litigation privilege, the purpose for which they were created. It is desirable that they should refer to such contemporary material as it is possible to do so without making disclosure of the very matters that the claim for privilege is designed to protect.  …
[54] Notwithstanding these threshold requirements, and the care the court must show, once it is established that a communication was made when litigation was contemplated or pending and for the dominant purpose of obtaining legal advice, the privilege cannot be overridden by another public interest.”

Release of material only to advocates: ‘no such procedure to be followed’ in the future

It is unclear why Holman J (who set up the hearing of the preliminary issue) did not adopt the r 21.3 procedure in Local Authority X v HI  [2016] EWHC 1123 (Fam). He seems not to have been told of the clear view of House of Lords: that it was not appropriate for advocates to be shown documents on terms that they could not show them to their clients (and see the same point made in Browning v Information Commissioner [2014] EWCA Civ 1050; [2014] 1 WLR 3848; and see discussion in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) at 20.37-20.43).

In Somerville v Scottish Ministers (HM Advocate General for Scotland intervening) [2007] UKHL 44; [2007] 1 WLR 2734 Lord Rodger commented:

[152] In terms of an agreement contained in a “protocol”, under conditions of the strictest confidentiality, senior counsel for the petitioners was allowed to inspect the complete versions of the documents for which the Scottish Ministers were claiming public interest immunity. Although devised with the best of intentions, this procedure was, in my view, wrong in principle. As a result, it not only gave rise to very real practical difficulties but led the court to adopt a mistaken approach to the inspection of the documents by the Lord Ordinary.
[153] If the Scottish Ministers’ claim that, in the public interest, the redacted parts of the documents should not be revealed was valid, then, in normal course, it was valid against counsel for the petitioners who should therefore not have seen the full version. As it was, counsel for the petitioners was left in a very difficult situation where, as a result of reading the documents, he had information that he was not able to reveal to, or discuss with, his clients or instructing solicitors. He even felt inhibited from revealing it to the [judge]….

Lord Roger concluded the paragraph: “In agreement with all of your Lordships, I am satisfied that no such procedure should be followed in future.”

The likelihood that in reality the procedure in Local Authority X v HI, to secure fairness, should have been a form of closed material procedure (for the parents excluded from the material; and see considered in Evidence in family proceedings by David Burrows (2016, Family Law/LexisNexis) Ch 20). Better still, Roberts J  might have ruled clearly – without giving too many hostages to proportionality and economic demands: that the material revealed nothing that could fairly be said to be relevant to the issues before the court; and that therefore it was not admissible. In so doing she, or Holman J, would have given clear recognition to HI’s confidences.

David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings was published by LexisNexis/Family Law last year.

He writes a blog at DB Family Law

@dbfamilylaw