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Composite threshold documents – in which, a tightrope is walked

 

Two nightmares of legal blogging this week. The first was the McKenzie Friend case in which I had to write an account of the Court roasting a person for bad behaviour when that person was not just a name on a page but someone that was in my mind a real flesh and blood person.  And now this one, where the judgment is written by my local Designated Family Judge.

That’s something that I dread seeing, because it puts me in an ethical quandary. If I praise it to the skies, I’m a suck-up. If I take a red pen to it and dissect its flaws – well, I’m stupid but I’m not THAT stupid.  So if I see one, I hope that it has nothing of wider relevance and I can ignore it. That avoids the need for me to walk a tightrope.

 

Damn. This one does have some wider relevance. It says things that have been said before and emphasises them, but it also says some things that haven’t been said before and that have been worth saying.

Behold, Suesspicious Minds walks a tightrope, without a safety net. GASP as he wobbles. WONDER if he will plummet to his certain demise?  PUZZLE as to why he has thought up too late that he could have put at the start that this particular article was a Guest post…

 

Why am I going to walk the tightrope for this case?

Firstly, it is the DFJ identifying several flaws in practice and I know that many of my readers practice in Sussex and will come before this DFJ. Forewarned is forearmed, and actually many of these practice issues would, if fixed, make for smoother running of Court hearings. What the Judge has to say about practice issues is important to read.  The less time that the Court has to spend in a hearing on fixing practice issues, the more that everyone can concentrate on the child and the child’s future, and we all want that.

 

Secondly, the DFJ says things about composite threshold documents which have wider implications for practitioners in all parts of the country.  What the DFJ says about composite threshold documents is, in my opinion, very long overdue, and I can’t think of an authority which sets out just how problematic they have become.

So I’d recommend that all Sussex practitioners put this judgment high on their “to-read” pile, and I have little doubt that these issues are troubling other Judges across the country and that similar judgments will be following, so it should go on everyone’s “to-read” pile, which will for many of you involve getting a stepladder and sliding the authority in the ever-decreasing gap between the top of the pile and the aertexed ceiling of the office.  (Top tip – avoid starting the pile directly under a ceiling fan)

 

East Sussex County Council v BH and Others 2015

http://www.bailii.org/ew/cases/EWFC/OJ/2015/B57.html

 

A quick note, for readers who aren’t lawyers. (Ah, how I envy you all).

The threshold document is a 2 page document prepared by the Local Authority setting out the harm that the child has suffered or is at risk of suffering and the allegations/facts that lead to that. The parents both respond to that, with the help of their lawyers. The Local Authority then prepare a final, or composite threshold document that sets out exactly what is agreed.

The problem is, and this isn’t a Sussex problem – I’ve seen it all over the county, and it has always irked me,  that often what you end up with is a “He said, she said” document, that doesn’t set out what the parties agree happened, so much as just squash the parents responses in next to the Local Authority allegation.

 

I’ll give you an example.  We are going to work on the basis of a single sentence within the LA threshold, and for illustrative purposes it is going to be  “The quick brown fox jumped over the lazy dog”

[Pedantic note – I originally used ‘jumps’ as in the typist sentence, but because the threshold is in the past tense, it made me wince every time, so I had to go back and change it. Also, because my father was a speed typist and taught me with the sentence  “The quick brown fox jumps over the lazy dog’s back”  to put a punctuation mark into the mix, I felt guilty for not using that version. ]

[That is NOT real threshold, before anyone rings the Daily Mail and claims that children are taken into care as a result of athletic foxes]

 

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

 

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

And the composite threshold document then becomes.

 

Paragraph 7.  The quick brown fox jumped over the lazy dog

Mother’s response is “It is accepted by the mother that she does own a dog, it is accepted that on occasions the dog does enjoy a sleep but on other occasions he leads a full and active life. On the morning in question, the mother does not recall the state of the dog’s alertness. It is accepted that a fox did jump over the dog. The mother considers that the fox was orange.  The mother had been meaning to shut the back door, which would have prevented the fox entering the house, but at that moment the postman rang the bell at the front-door and she had to attend to that.”

Father’s response is  “It is accepted by the father that on one occasion, a fox entered the home. This was through a window that had been broken the night before by a gang of youths, father did a week later report that criminal damage to the police. The fox did move swiftly and it was a brownish-orange colour.  The fox did leap over a member of the household, though father tried to prevent it, he was holding a jar of Branston pickle at the time and his grip was impaired. What was leapt over, however, was not the dog, but the cat”

 

Not only is that cumbersome and unwieldy, but it doesn’t actually tell you anything about what actually happened.  It could instead be put like this.

 

Paragraph 7.  Something happened. Nobody agrees what, but they all agree that something happened.

And you can end up with two pages of long-winded “Something happened. Nobody agrees what” as being apparently the factual basis on which the Court is invited to make final orders – serious final orders.

When a Judge comes to hear the case, and considers what the risk of a future episode of a lazy dog being jumped over by a fox might be, how on earth does that composite threshold help anyone?

 

This is a problem on two fronts. Firstly, there’s a tendency in responses to threshold to put in extraneous detail and mitigation, when that could be in a statement instead. If the response focussed on – is the allegation accepted in full, accepted in part or denied?  And if accepted in part, provide a form of words which would be acceptable to your client, we would avoid much of the superfluous detail that clouds the issues.  In this case – was there a dog, was there a fox, did the dog jump over the fox?

Secondly, there’s a failure by the person drafting the final composite threshold (that’s someone like me, and even though I hate it, I’m sure I’ve been guilty of it) to not be able to strip away all the superfluous detail and mitigation, to be able to get to the core of what form of wording would be agreed.

 

For example, here are three acceptable composite documents.

 

The quick brown fox jumped over the lazy dog   – this is accepted

The fox jumped over the dog and the dog showed no later ill-effects – this is accepted

The quick brown fox jumped over the lazy dog – this is denied by the parents and the Court is asked to make a finding

 

(and a fourth, which the allegation is disputed, and the Local Authority agree to remove it from the document.   There are some important issues about whether you’d go for option 3 or option 4 and whether a parents concessions are sufficient – I’ve written about it here  http://www.jordanpublishing.co.uk/practice-areas/family/news_and_comment/view-from-the-foot-of-the-tower-horse-trading-and-threshold-concessions#.VWa9FEY1Ouc)

 

So, for parents lawyers, please please please stop your documents being pleas of mitigation, and hone in on the task of ‘is this agreed, partially agreed and here’s my form of words, or denied’ .  It’s a response to threshold, not a plea of mitigation.  And for me, and those like me – produce a final threshold document that actually sets out for the Judge (and those to read it in years to come), what the AGREED basis for the order is, and where there is not agreement, set out what finding is sought from the Court.

 

The Judge deals with this without the need for fox and dog imagery.

 

  • As frequently happens, a “composite threshold document” had been completed in a cut-and-paste fashion. By that I mean the document set out the evidence relied upon by the local authority, together with the responses and explanations of each parent in turn. However, whilst it was clear from the document that the threshold was met to the requisite standard, the replies when examined clearly revealed that a number of facts relied upon were not accepted, and not capable of being resolved. There was no indication to me, even at the eleventh hour, as to what I was being expected to determine from the outstanding facts and matters which were in dispute. Threshold must be thought out, and any issues in need of determination identified at the earliest possible stage and the PLO applies. It is entirely unsatisfactory to present a court at the start of a final hearing with matters relied upon which have not been either agreed or identified for determination. Precious time was therefore taken up on this issue alone. Either a threshold is agreed or it is not at the earliest possible stage, in which case the court takes a view. In the event the parties managed to agree threshold at the start of the hearing.

 

Finally, the judgment makes a point about judicial reading time. There is never enough of it allocated, but the parties don’t help by not estimating it properly. We are obliged to put in the case summary how much judicial reading time is needed.  That bit is never nice to fill in – if you are realistic, and put that for an IRH the Court ought to read everything, and have a grasp and knowledge of it, then for a 350 page bundle, a minute a page gives you a 6 hour reading time.  A minute a page might be breezy for some parts of the bundle but others might take much longer than that.  Handwritten medical notes for example… Or a page of heavy analysis or cross-references – you might have to slow down to check that the quotations from other documents are fair and representative rather than cherry picked and misleading.

 

Do you think any Judge is going to thank you for putting a 6 hour – or a cut-down slightly unrealistic 3 hour (30 seconds per page) time estimate for a hearing that is listed for an hour?  So we all fudge and put 2 hours…

If judicial reading time is included, advocates might consider how long it took them to prepare the case for hearing in terms of reading time and allocate judicial reading time accordingly.

 

Of course, if we had the old days of special prep SIPS forms, a Judge could tackle this by saying that the reading time that counsel would get paid for would not exceed the reading time allocated to the Judge. That would have made for more accurate estimates of judicial reading time…

 

 

 

The cat is still a cat. It can be put back in the bag

 

Ah yes, the little known verse from Casablanca’s wonderful song :-

 

you must remember this,

a cat is still a cat,

it can be put back in the bag,

the fundamental rules of legal professional privilege apply,

as time goes by

 

 

G v G 2015

 

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1512.html

 

A disappointingly plain name for the case – I wish they had gone for G v G (on Cats and Barbeque Etiquette) 2015…

 

This is an insanely complex legal debate about whether or not a conversation was subject to privilege or not.

 

This case also establishes that those awful conversations where someone finds out at a barbeque that you are a lawyer and asks you for advice about this that and the other, do not attract legal professional privilege.

 

It is a perfect excuse to get out of giving that advice for free, in your spare time, when you really just want to be mangling a burger. You may therefore want to make like Samuel L Jackson’s character Jules Winnfield in Pulp Fiction, and have this passage memorised for such occasions.  [Or you know, just use Jules’ speech about “and you will know my name is the Lord, when I bring my vengeance upon thee’  – I have found that this also gets people to stop talking to you and frees up elbow room at the condiments table]

 

As is stated in paragraph 1.51 of The Law of Privilege (2nd edition) edited by Bankim Thanki QC,

 

 

‘If you ask your lawyer for advice about your love life, this will clearly not be privileged. But even if he is consulted about the law, privilege will not arise if a lawyer is consulted on a social rather than a professional basis. While a formal retainer is not necessary, there are limits. Buttonholing your lawyer neighbour for free advice at a barbeque is unlikely to attract privilege, even if the subject matter is entirely legal. …. The fact that an individual happens to be a lawyer will not cloak all communications with him with privilege unless he is consulted professionally in his capacity as a lawyer.’

 

 

 

Here is the nub of it. A wife, W, was having some matrimonial issues. She told her friend, Debra Spurway about those issues. Her friend Debra, had a second friend, Patricia Ledwith who knew a “top family lawyer” – Miss Deborah Bangay QC (DBQC).

 

Miss Ledwith spoke to Debra Spurway, who spoke to W, and then the message went back up to Miss Ledwith, asking for Miss Ledwith to see whether DBQC would act on behalf of the wife. Telephone numbers were exchanged, and Miss Spurway spoke to DBQC by telephone.

 

During which it was confirmed that DBQC did not take direct access cases or through agents, but suggested to Debra Spurway that W speak to a particular solicitor, a Mr Ribet of Levison Meltzer Piggot solicitors.

 

DBQC then sent Mr Ribet an email, indicating that he might be receiving a new referral.

 

This is what she said in the email

 

Having spoken to Miss Spurway on either the evening of 19 September or the early morning of 20 September 2012, DBQC sent a short email to Mr Ribet. It was sent at 08:54 (‘RE: ‘Poss new case’) and its substance is recorded below :-

 

 

‘[Mrs G] – may call you re non performance of a Consent Order and ? poss non-disclosure’.

 

The Wife did later consult with Mr Ribet, but they did not later go on to formally represent her in the Court proceedings. It does not appear that she ever formally met with or instructed or discussed the case with DBQC.

 

That much is obvious, as by happenstance, DBQC was instructed by the Husband in the proceedings.

 

The proceedings at that point related to an application to appeal out of time.

 

H and W were married to one another in 1996 after a lengthy period of cohabitation. Their relationship endured for some 22 years during the course of which three children were born to this couple. In the context of divorce proceedings which were issued in 2009, they were able to resolve all issues arising in the context of the pending ancillary relief proceedings (as they were then known). On 1 June 2010, Deputy District Judge Marco approved the terms of a consent order which provided W with a comprehensive financial award on the basis of a clean break between the parties. The global wealth available for distribution between the parties at that time was said to be in the region of £15.7 million. W’s settlement was worth slightly less than half of that sum.

 

 

Some four years later, on 23 July 2014, W issued a notice seeking permission to appeal out of time against the consent order alleging material non-disclosure on the part of H at the time of the 2010 financial negotiations. In essence, her case in the substantive proceedings (which are due to be heard by Moor J between 6 and 8 July this year) is that she did not know until May 2014 that H (as opposed to their three children) was the primary beneficiary of two family trusts. At the heart of her case in relation to the alleged non-disclosure lie the central allegations that (a) he failed to disclose the existence of two trusts; (b) she was unaware at the time of the agreement which underpinned the consent order that the trusts had recently received payments amounting to just over £4 million; and (c) that he was the primary beneficiary under the terms of both trusts.

 

 

As part of the issue in the appeal was Wife’s claim that the appeal was out of time was a result of discovery in July 2014 that there had been material non-disclosure, one can see why DBQC’s email in September 2012 suggesting that the Wife had wanted advice on ?poss non-disclosure was pertinent and relevant.

 

The issue was, was that email subject to legal professional privilege and admissible only if the Wife chose to waive that privilege?

 

 

The email came to light when the Husband changed solicitors, and by happenstance, chose Levison Meltzer Piggot – a conflict check revealed that the Wife had consulted with the firm and that check turned up the email sent by DBQC to Mr Ribet of that firm.

 

 

On the factual basis, the Court found the following facts

 

  1. My observations and findings of fact based upon the evidence presented in the court bundle

 

Before turning to the law, it seems to me that by this stage we have reached a situation where the facts as I find them to be on the balance of probabilities can be stated as follows :-

 

 

  1. The conversation between W and Miss Spurway

(i) According to W’s own recollection and prior to Miss Spurway’s conversation with DBQC on 19 or 20 September 2012, W had spoken to Miss Spurway on one occasion in the context of her wish to seek legal advice. She was driving alone in her car at the time of this conversation. [B/3:38][B/7:54]

(ii) At some point during its course, Miss Spurway asked W if she might speak to DBQC whose identity was then unknown to W but who had been recommended to Miss Spurway as an expert in her field of family law by a friend. That friend’s identity was entirely unknown to W at the material time and it is her evidence that she did not even know the name of Miss Spurway’s friend (who was the initial point of contact with DBQC) until the existence of the email chain of 19/20 September 2012 was disclosed to her in H’s solicitors’ letter dated 30 September 2014 : see [A/4:46].

(iii) W was subsequently informed that Miss Spurway had spoken to DBQC and had told her a number of matters about W’s (then) concerns. There is no further information or particularity as to what was said save that DBQC had sent an email to the solicitor she had recommended (whom we know to be Mr Ribet). That email refers to (a) non-performance of a consent order and (b) (perhaps) possible non-disclosure [A/4:42].

(iv) Miss Spurway reported to W that DBQC had said that she wished to be kept informed as to developments.

(v) As a result of that recommendation, on a date subsequent to 20 September 2012 (which W says was ‘late 2012′), W did establish contact with LMP to take advice.

  1. The conversation between Miss Spurway and Miss Ledwith

(vi) At an unidentified point in time, Miss Ledwith had communicated to Miss Spurway in a conversation between them the fact that she knew DBQC whom she described to Miss Spurway as ‘a top family lawyer’ [B/6:50].

  1. The conversation between Miss Ledwith and DBQC

(vii) Whatever information Miss Ledwith imparted to DBQC during their telephone conversation it did not come first hand from W (who did not then know of Miss Ledwith’s existence and had never spoken to her).

 

  1. The conversation between Miss Spurway and DBQC

(viii) There is nothing in the written evidence to assist me with the precise date and time when the conversation between Miss Spurway and DBQC took place. Miss Spurway’s evidence is simply that Miss Ledwith ‘arranged for her to speak with Miss Bangay’ [B/6:50]. In particular, I do not know whether DBQC’s email sent to Mr Ribet at 08:57 on the morning of 20 September 2012 alerting him to the possibility of a call from W was sent before or after her conversation with Miss Spurway. I find that it is likely to have been after her conversation with Miss Spurway because of the reference in the latter’s written statement to DBQC’s agreement to contact Mr Ribet to let him know that W might get in touch with him. This would put their conversation at some point prior to 08:57 on 20 September 2012.

(ix) This telephone conversation was short [B/6:50].

(x) During its course, Miss Spurway referred to the name of the family company (SC) and ‘discussed matters [unidentified] which are alleged to be sensitive and private relating to W and her family’ which Miss Spurway understood DBQC would not share with anyone else (including, presumably, Mr Ribet unless and until she might be formally instructed). [B/6:50]

(xi) There is no suggestion in any of the evidence put before the court by W and/or Miss Spurway that DBQC was either asked for legal advice or gave legal advice during the course of this conversation. There is no suggestion in the email which DBQC subsequently sent to Mr Ribet on 20 September 2012 that she had given any such advice although it is clear from the reference in that email to both the possible breach of a consent order and potential issues of non-disclosure that some information had been exchanged which led her to deduce that these were possible legal issues which might need to be explored in the event of a formal instruction by W. The other alternative is that these issues were identified by Miss Spurway herself without any input at all from DBQC and the tentative nature of her succinct email to Mr Ribet was no more nor less than a reflection or reportage of what she had been told might be the subject of W’s wish to seek legal advice.

(xii) DBQC explained to Miss Spurway that she could not accept direct instructions from W (and therefore, presumably from any agent instructed on W’s behalf). She tendered Mr Ribet’s name as a solicitor whom W might wish to go to see. She appears to have explained to Miss Spurway (although it may be no more than a deduction on Miss Spurway’s part) that in the event such contact was made by W, it would then be possible for Mr Ribet to instruct DBQC on W’s behalf.

 

 

The legal arguments were tricky. On the one hand, Wife asserted that throughout the chain of discussions, she was obtaining advice in confidence and that legal professional privilege applied to each stage, including fundamentally the email between DBQC and Mr Ribet.

 

The fact that Husband actually HAD the email in his physical possession did not affect the fact that it was privileged and he could not make use of it.

 

Finally, Mr Pointer reminds me that the fact that the emails passing between DBQC and Mr Ribet have been disclosed to H does not mean that the privilege and/or confidentiality belonging to W are now irrevocably lost. The court in these circumstances retains the power to regulate the evidence.

 

 

In B v Auckland District Law Society (cited above), Lord Millett said this at paragraphs 69 and 70:

 

 

‘The Society argued that, once the documents were produced to Mr Ennor, they ceased to be privileged. Their Lordships consider that this was playing with words. It confuses the nature of the documents with the rights to which the arrangements with Mr Ennor gave rise. The documents are privileged because they were created for the purpose of giving or receiving legal advice. If they are not produced voluntarily, production cannot be compelled. If they are produced voluntarily, the right to withhold production no longer attaches to them. In that sense the privilege may be said to be lost. But they are the same documents, and it is not inappropriate to describe them as privileged. Their inherent characteristics are the same. The policy which protected them from unauthorised disclosure is the same. The cat is still a cat. It can be put back in the bag.

There is another confusion also. The appellants want to recover the documents because they are privileged. But they do not rely on privilege to found their cause of action. A party who has parted with possession of documents may have a right to recover possession on any one of a number of grounds. He may reclaim them because they belong to him; or because he has a contractual right to recover then; or because they are confidential; or because he has parted with them for a limited purpose and equity will not permit the recipient to retain them once that purpose is fulfilled. In the present case the documents are both privileged and confidential, but the appellants do not rely on privilege or confidentiality to found their claim to recover them. They rely on the terms of the arrangements under which they were supplied and the limited purpose for which they permitted use to be made of them. Their case is that there is no legal basis on which the Society can retain and make use of the documents free from the limitations which Mr Lusk imposed and Mr Ennor accepted.’

 

On the other, Husband asserted that what passed between Wife and Miss Spurway, and later between Miss Spurway and Miss Ledwith was ‘confidential between friends’, it was not legally privileged. There had been no authorization by Wife to appoint Miss Spurway or Miss Ledwith as AGENTS on her behalf to instruct a lawyer and obtain legal advice, therefore the conversations that resulted in the production of the email were not legally privileged. Also, fundamentally, that it is the task of the person asserting that privilege applies to prove it.

 

I was also referred to the older authority of Wheeler v Le Marchant (1881) 17 Ch D 675. In that case Jessel, MR said this, at page 681:

 

 

‘… In the first place, the principle protecting confidential communications is of a very limited character. It does not protect all confidential communications which a man must necessarily make in order to obtain advice, even when needed for the protection of his life, or of his honour, or of his fortune. There are many communications which, though absolutely necessary because without them the ordinary business of life cannot be carried on, still are not privileged. The communications made to a medical man whose advice is sought by a patient with respect to the probable origin of the disease as to which he is consulted, and which must necessarily be made in order to enable the medical man to advice or to prescribe for the patient, are not protected. Communications made to a priest in the confessional on matters perhaps considered by the penitent to be more important even than his life or his fortune, are not protected. Communications made to a friend with respect to matters of the most delicate nature, on which advice is sought with respect to a man’s honour or reputation, are not protected. Therefore it must not be supposed that there is any principle which says that every confidential communication which it is necessary to make in order to carry on the ordinary business of life is protected. The protection is of a very limited character and, in this country, is restricted to obtaining the assistance of lawyers, as regards the conduct of litigation or the rights to property….‘.

 

I was taken also to the judgment of Buller J in Wilson v Rastall 4 TR 753 (1792); 100 ER 1283. Whilst the authority now has to be seen in the context of more recent authority on the subject, the principle remains undisturbed in relation to the basis of the privilege. At page 1287, his lordship stressed that the doctrine of LPP was confined to cases of counsel, solicitor and attorney and ‘in order to raise the privilege, it must be proved that the information, which the adverse party wishes to learn, was communicated to the witness in one of those characters’. Later he said, ‘It is indeed hard in many cases to compel a friend to disclose a confidential conversation; and I should be glad if by law such evidence could be excluded. It is a subject of just indignation where persons are anxious to reveal what has been communicated to them in a confidential manner ….’.

 

 

A modern restatement of the law can be collected from the decision of the Court of Appeal in R (Prudential PLC) v Special Commissioners of Income Tax [2011] QB 669 where Lloyd LJ (with whom Mummery and Stanley Burnton LJJ agreed) reaffirmed the principle that a conversation between friends, however confidential and sensitive, does not attract LPP even if its contents relate to legal matters or concerns. The Supreme Court upheld this judgment and, in so doing, made it plain that it was for Parliament to decide whether, and in what circumstances, it might be appropriate to expand the doctrine ([2013] 2 AC 185 at [51] to [52] (per Lord Neuberger); at [77] and [80] (per Lord Hope); at [92] (per Lord Mance); and at [96] to [98] (per Lord Reed)).

 

 

 

 

The Judge had to decide on the nature of the conversations and whether they attracted privilege

 

(i) Does the conversation (or conversations, if more than one) between W and Miss Spurway prior to her making contact with DBQC attract the protection of LPP (and specifically LAP) ?

 

Was W, in the context of her conversation(s) with Miss Spurway, giving instructions, or authorising her friend, to seek from DBQC (i) a recommendation for a lawyer, and/or (ii) legal advice generally and/or in relation to the way forward in terms of any potential claim she might be advised to bring ? If so, was W’s conversation with Miss Spurway, and the ‘number of matters discussed’, to form the description of the case or set of facts from the basis of which DBQC was being asked to advise ?

 

 

Having considered carefully the contents of the statements prepared by both W and Miss Spurway, I can find no evidential basis for finding that there was ever a request or authorisation made or given by W to Miss Spurway to seek legal advice from DBQC. I am satisfied that W understood that Miss Spurway was going to approach DBQC with a view to securing a recommendation as to who might act on her behalf in the event that she were to dispense with the services of the lawyers who had been advising her throughout the 2010 proceedings. It is clear that Miss Spurway was able to secure through information passed to her by Miss Ledwith the name of ‘a top family lawyer’. No doubt that description (or words to that effect) was conveyed to W by Miss Spurway in the context of her securing W’s authorisation to speak to DBQC on her friend’s behalf. Whatever the nature of the ‘sensitive and private matters’ which were discussed on that occasion, it is clear that DBQC explained to Miss Spurway at some point during their short conversation that she could not accept instructions directly from W (and thus could not give advice).

 

 

Miss Spurway confirms in her statement that she understood that DBQC would not in any event share the content of whatever was discussed with any other third party. Inevitably, it seems to me, there must have been some preliminary discussion between them to inform the content of DBQC’s subsequent email to Mr Ribet. I know not whether the reference in that email to ‘.. non performance of a Consent Order and ? poss non-disclosure’ was a deduction made by DBQC from the content of her conversation with Miss Spurway or whether these were the words used by W’s friend. In either event, having provided Mr Ribet with a ‘heads up’ on the possibility that W might make contact, DBQC ceased to have any further involvement in the case prior W’s instruction of Mr Ribet in ‘late 2012′. I have already explained in paragraph 62 my reasons for concluding that she had no further involvement on behalf of W after his instruction and prior to her subsequent instruction by Pinsent Masons LLP on behalf of H.

 

 

Thus, I have reached a clear conclusion that, in answer to the question posed above, the conversation between W and Miss Spurway (or conversations, if there was more than one) cannot on any view be said to attract the protection of LPP (and specifically LAP). These were simply conversations between friends. During the course of one of those conversations, W learnt that Miss Spurway had been able (through assistance from a friend of hers, unknown to W) to identify a ‘top family lawyer’ with whom contact had been established through the good offices of this friend. W accepted her friend’s offer to speak to this lawyer with a view, as I find, to securing a recommendation as to whom she might go to for professional advice. I can find no basis whatsoever for a finding that she specifically authorised her friend to secure that advice from DBQC on her behalf.

 

 

 

Next

 

(ii) Does the (admittedly, short) conversation between Miss Spurway and DBQC on 19 / 20 September 2012 attract LPP ?

 

It follows from my conclusions in relation to the first question that the approach made by Miss Spurway to DBQC was directed towards securing assistance for W in terms of a recommendation as to who might assist her friend to take these matters forward. Had Miss Spurway intended to pursue the conversation beyond the point of securing a recommendation, she was stopped firmly in her tracks by DBQC who made it plain that she could not accept W’s instructions (and thus, in my view, could not give advice) other than through formal instructions from a solicitor. I am satisfied that there is nothing in the material put before me which establishes that W herself authorised Miss Spurway to act as a conduit or agent for the purposes of a specific request for legal advice or, upon the receipt of any such advice, for onward transmission back to her. All that W said was that she was happy for Miss Spurway to speak to DBQC on her behalf. She provides no evidence which would come close to establishing on the balance of probabilities that Miss Spurway was being instructed as an agent of communication to relay information on her behalf to a lawyer. As is stated in paragraph 1.51 of The Law of Privilege (2nd edition) edited by Bankim Thanki QC,

 

 

‘If you ask your lawyer for advice about your love life, this will clearly not be privileged. But even if he is consulted about the law, privilege will not arise if a lawyer is consulted on a social rather than a professional basis. While a formal retainer is not necessary, there are limits. Buttonholing your lawyer neighbour for free advice at a barbeque is unlikely to attract privilege, even if the subject matter is entirely legal. …. The fact that an individual happens to be a lawyer will not cloak all communications with him with privilege unless he is consulted professionally in his capacity as a lawyer.’

 

It seems to me that this passage is entirely analogous to the position in which DBQC found herself when she took the telephone call from Miss Spurway on 19 or 20 September 2012. There is no issue at all but that Miss Spurway was entirely unknown to DBQC

 

 

Thus, I have reached the conclusion that at no stage of the time line was there a formal relationship between DBQC and Miss Spurway (as agent for W) and/or between DBQC and W of professional legal adviser. DBQC was very clear to Miss Spurway that this relationship could not be achieved unless and until she received formal instructions. At no point during that short conversation was she acting in a professional capacity

 

 

This is looking very bad for Wife.

 

 

Does Minter v Priest save her? Minter v Priest says that conversations between a person and their lawyer can be capable of being privileged where they are ‘sounding out’ conversations prior to formal instruction, but where the intention is that a person is seeking to engage a lawyer to advise or represent them. If Wife had not formally instructed DBQC, as found above, could it be argued that she had ‘contemplated the relationship” in accordance with Minter v Priest?

 

 

Equally, I do not accept that Minter v Priest (cited above) affords W any assistance in these circumstances.

 

 

In Minter v Priest, the Court of Appeal explained that the confidential relationship between a solicitor and client is established from the moment when the solicitor invites that prospective client to tell him about matters on which he seeks advice and which are within the scope of that solicitor’s particular expertise. It matters not whether that solicitor has by that stage been formally engaged by the prospective client. The House of Lords approved that test and explained that “the contemplated relationship … of solicitor and client … was sufficient” (per Lord Buckmaster at 588, above).

 

 

This situation is not on all fours with Minter v Priest because, as I find, W was never in a relationship with DBQC as a contemplated client of a professional legal adviser. The facts will simply not support that analysis at this point of the time line. DBQC’s rejection of her ability to assist unless and until she received formal instructions to act does not, in my view, place her in the position of a prospective adviser to W. She gave her recommendation of Mr Ribet. W could have conducted further research about Mr Ribet’s professional credentials on his firm’s website or from any other source and decided not to instruct him. Even in circumstances where she did subsequently instruct Mr Ribet, I am satisfied that he, on her instructions, did not deliver any formal instructions to DBQC to act on W’s behalf. It is just as possible that W might have been presented with a number of different barristers’ names by Mr Ribet and she might well have decided to instruct someone other than DBQC. In these circumstances and applying the law as I have referred to it above, I have reached an equally clear conclusion that the conversation between Miss Spurway and DBQC on 19 September 2012 did not, and could not on any basis be said to, attract LPP.

 

 

 

Thus, Wife’s application for an injunction that Husband could not make use of the contents of the email between DBQC and Mr Ribet on the basis of legal privilege failed. Could she instead rely on a general position of confidentiality – i.e that she had understood, and the parties in the chain had understood that what was being discussed was confidential? It isn’t as robust as legal privilege, which the Court can’t waive, but in some cases that confidentiality can lead a Court to rule that the documents should not be used in evidence.

 

 

The cat point comes up again here – Husband argued that whether or not confidentiality applied, once the documents were disclosed, they were now fair game.

 

I nevertheless have to consider whether W is entitled to some form of equitable relief on the basis that her communications with Miss Spurway and Miss Spurway’s communications with DBQC were regarded by the two friends as confidential. On the basis of my review of the authorities (above), I am minded to consider the position in relation to injunctive relief on the basis of a hypothetical acceptance of Mr Pointer’s submission that there remains in the court a residual discretion to prevent the use of confidential material even in circumstances where a claim for LPP is not made out.

 

 

I accept, self-evidently, that relevance alone, whilst a necessary ingredient, does not provide the answer. The court retains a discretion even in circumstances where a document is clearly relevant. Mr Green has confirmed, as I have already said, that H has no intention of seeking to invade the privilege of LMP’s file insofar as it relates to W’s instruction of that firm in late 2012. Mr Pointer seeks to persuade me that, if he is wrong about LPP attaching to W’s conversations with Miss Spurway and that lady’s conversations with DBQC, I should consider in the balance whether, and how far, the contents of these conversations are likely to assist Moor J in his determination of the issues which will be ventilated at the forthcoming hearing in July this year. He points to the issue being W’s state of knowledge about H’s beneficial interest in the trusts in 2014. He says that there is no evidence that she had that information before that date. He says that there is nothing in the confidential information which is likely to advance the case one way or another as to W’s actual knowledge in 2012. Thus, he concludes, there is a real issue as to how far the confidential information can be considered as necessary for the purposes of disposing of the appeal.

 

 

I am ignoring for these purposes the fact that H now knows about this information. It seems to me that the law is clear : the cat can be put back into the bag if this is necessary and that end can be achieved by the grant of an appropriate injunction.

 

 

The Court could therefore, make an injunction that the email would not be used in evidence, even though it was in Husband’s possession. But would they?

 

No.

 

As I said in paragraph 66 of my judgment, if W had indeed been alive to potential issues of non-disclosure in 2012 but allowed matters to rest for a further two years before taking any steps to set aside the consent order, that factor will undoubtedly be one which the learned judge will wish to consider in deciding whether to grant W the relief which she seeks. In this context, it seems to me that her state of knowledge in 2012 is likely to be highly relevant and material.

 

 

In the circumstances, I have decided that notwithstanding the absence of any privilege in DBQC’s email of 20 September 2012, there are no overriding circumstances which would justify the grant of injunctive relief on the basis of confidentiality per se to restrain the use of that document or the information contained within it at the forthcoming hearing before Moor J in July 2015. Whether or not I have jurisdiction to grant the declaratory relief which H seeks in his cross-application dated 15 April 2015 (the email and any record of it and the conversations between W / Miss Spurling / DBQC can be adduced as evidence) seems to me to be subsidiary to the principal point in issue. I have found as a fact that there is no privilege attaching to either the document itself (i.e. the email dated 20 September 2012) or the conversations which informed the content of that email. In the circumstances, I dismiss W’s applications dated 4 and 25 March 2015 in respect of injunctive relief which might otherwise prevent either of Mr Sear and/or Pinsent Masons LLP from continuing to act for H. It is no longer necessary for me to determine whether DBQC should be precluded from acting, she having withdrawn from the case on 15 April 2015. I decline to make any orders requiring H to redact any part of his witness statement dated 23 January 2015 and I make no orders in respect of injunctive relief concerning the correspondence passing between H’s and W’s solicitors insofar as it relates to the use of confidential information.

 

 

There is also in this case all sorts of exciting Game-show / Brendan Rodgers stuff about the Wife having put some information in a sealed brown envelope that she was prepared to let the Judge see but not the other parties. The Judge (rightly in my humble opinion) decided not to open this envelope or look at its contents before considering the case.

 

 

W has filed a fifth statement in these proceedings. It is dated 31 March 2015. In that statement she refers to the fact that she has deliberately refrained from including in her earlier statements the substance of her conversation with Miss Spurway in September 2012. She continues to maintain that this conversation was confidential and any information passed on to DBQC by Miss Spurway and from DBQC to Mr Ribet was similarly impressed with that confidence. In order to ‘cure’ or remedy the absence of any specific details, she has provided a summary of that conversation in a sealed brown envelope lodged with the court which she invites me to read despite the fact that she continues to maintain her privilege and confidentiality over that material. I indicated at an early stage of these proceedings that I was not minded to accede to any request which might be made of me by Mr Pointer and Mr Webster to read that material. Whilst I accept that I am entitled to look at that information, I take the view that it would be wholly inconsistent with my obligations to reach a conclusion in these matters on the basis of a fair and transparent hearing in which neither party had any forensic or other advantage over the other. It would have placed Mr Green and his junior counsel, Mr Hickman and Mr Sear, in an impossible position. Further, it might well have resulted in my having to produce a redacted version of my judgment if and insofar as it might have included reference to the ‘brown envelope’ material. The lawyers and the parties in this case are fully entitled to know the reasons underpinning any decision I might reach. That would prove impossible if I were to have read material which I regarded to be relevant, the contents of which were unknown to H and his team. Transparency and openness lie at the very heart of fairness and judicial impartiality. Whilst there may be circumstances in which other outside interests and public policy considerations might entitle a judge to read material which is not disclosed to the other side (for example, in situations regarding public interest immunity applications), this is not such a case. As I shall explain when dealing with the law, the authorities to which I have been referred make it quite clear that there is an obligation upon an applicant who seeks to rely upon LAP to include in his or her evidence as much detail as possible in his or her evidence in support precisely in order to avoid this sort of situation arising.

 

 

 

At the end of the case, the brown envelope issue is dealt with.

 

 

It seems to me that the next step is for H’s legal team to be shown the statement made by W which is presently contained in the ‘sealed brown envelope’. Mr Green tells me in paragraph 8 of his skeleton argument that she has accepted that, if the material is not privileged, H should be provided with her written ‘summary’ of the conversation she had with Miss Spurway. That may enable both sides to take a view as to the way forward. As I have already said, I have not read this material and it may very well be that W has a complete answer to H’s allegations as I have set them out in paragraph 102 of my judgment.

 

 

 

The big lesson from this case is – if you want to have a conversation that is genuinely off-the-record, then it has to be with a lawyer that you have either formally instructed or you are genuinely contemplating instructing. Friends, even very well-meaning ones, don’t count.

 

I have just realised that if you don’t know the Brendan Rodgers brown envelope story, and your only knowledge of him is that he is a football manager then you may wrongly think that the story is about the envelopes being full of off-the-record cash used to influence transfer dealings – or “Bungs” as in the case of [name removed on legal advice] or [name removed on legal advice] or [name removed on legal advice]

 

No, it is no allegation of criminal misdeeds, just some management bull**** technique. Before a match, Brendan told his Liverpool players that he had written the names of three players who would let the club down that season inside envelopes and sealed them – and then told them “don’t let your name be in that envelope”

 

http://www.mirror.co.uk/sport/football/news/being-liverpool-brendan-rodgers-envelope-1369893

 

The clever trick being ‘ha ha’ there never were any names in the envelopes.

You may be thinking here, if Brendan Rodgers was my boss, I’d be doing everything in my power to get away from him. I will cite Luis Suarez  (biting people at a world cup), Steven Gerrard (signing for an American team) and Raheem Sterling  (throwing toys out of pram, saying that he wouldn’t sign a new contract if Liverpool offered him £900,000 a week to play), as reasonable evidence that your belief is shared by others.

Was an autobiography harmful to a child?

 

The Supreme Court have given their decision in James Rhodes v OPO 2015

https://www.supremecourt.uk/cases/docs/uksc-2014-0251-judgment.pdf

 

This was a case in which James Rhodes, a concert pianist, author, and film-maker, wrote an autobiographical account of his life,  and where the mother of their child sought an injunction to prevent its publication. The Court of Appeal granted that injunction, based on an 1897 case called Wilkinson v  Downton. That case established a cause of action which was “intentionally causing physical or psychological harm”

Mr Rhodes took that case to the Supreme Court, and triumphed.

 

The Supreme Court posed the central question in this way:-

 

What, then, is the proper scope of the tort in the modern law? In particular, can it ever be used to prevent a person from publishing true information about himself?

 

When you read snippets from the book contained in the judgment, those snippets pull no punches. It describes the dreadful sexual abuse that the author sustained as a child, the harrowing impact that it had on him, the consequences throughout his life and how for the author, music provided an escape from that. The descriptions are brutal and shocking – but of course, so is what happened to this man as a child. The words hurt, but nothing like how the experience must have hurt.

One can also see that the mother of a young boy (who has Aspergers’ Syndrome, amongst other difficulties) would be worried about the boy coming across these accounts.  They are graphic accounts – they are so by intent – the author is wanting to convey just how monstrous what happened to him was, to reach out to other victims or potential victims, and possibly to reduce the chances of what happened to him happening to others. They are not easy to read – even for me – and I work within a field where I see accounts of abuse against children almost every week and would be expected to be somewhat more de-sensitised to it than the average adult. What James Rhodes has written is powerful and hard to read.  I commend him for it.

 

[This isn’t a terribly neutral summary, I am glad that he won this case – but nor do I think that the mother was a bad person for bringing the claim – I see entirely why she would not want her son to read this material whilst he is a child, and that in the modern era it is not as simple as just not having a copy in his home to read – the internet will have passages from it, indeed the judgment does, and other children who the son knows may come across it and make use of it]

 

As a matter of law then, what does the Supreme Court have to say about this tort?

Let’s look at the history first – as ever with old caselaw, the facts are quirky, and I’m sure that nobody involved ever imagined they’d be making legal history and newspaper headlines 120 years later.

 

Mr Wilkinson had been out at the races (I think that I can say without fear of defamation 120 years later that some degree of liquid refreshment may have played a part in the day’s events) and his friend Mr Downton decided that it would be an amusing practical joke to tell Mrs Wilkinson that Mr W had had an accident at the races, broken his leg and needed help.  Mrs W took it very badly and had weeks of nervous shock.

 

Wilkinson v Downton

31. Mr Downton secured a place for himself in legal history by a misconceived practical joke. He thought that it would be a cause of harmless amusement among the clientele of the Albion public house in Limehouse to tell the landlord’s wife, Mrs Wilkinson, a false tale that her husband had fractured his legs in an accident while on his way back from a race meeting and that he had sent a message to ask for her help to get him home. It cost her 1 shilling and 10 ½ pence to send her son and another helper on this fools’ errand, but a matter of far greater concern was the effect on her health. She suffered severe shock to her nervous system, which manifested itself in vomiting and weeks of physical suffering. Mrs Wilkinson had not shown any previous sign of predisposition to nervous shock. She and her husband sued Mr Downton, and the matter came to trial before Wright J and a jury.

32. Recovery of the transport costs incurred in response to Mr Wilkinson’s supposed request for help presented no legal difficulty. Such costs were recoverable as damages for deceit. The jury assessed damages for the illness caused to Mrs Wilkinson by her nervous shock (together with her husband’s claim for the resulting loss of her services) at £100, but the legal basis for making such an award was problematic.

33. Wright J rejected the argument that damages for deceit could include an award for Mrs Wilkinson’s suffering, because the essence of liability for deceit was that a maker of a false representation, intended to be acted upon, was liable to make good any loss naturally resulting from the representee acting on it, but the illness suffered by Mrs Wilkinson was not a consequence of her acting on what she was told. It was simply a consequence of the shock brought about by the news reported to her.

34. Wright J held, at pp 58-59, that a cause of action could be stated in law where a defendant has

“wilfully done an act calculated to cause physical harm to the plaintiff – that is to say, to infringe her legal right to personal safety, and has in fact thereby caused physical harm to her.”

He continued

“That proposition without more appears to me to state a good cause of action, there being no justification alleged for the act. This wilful injuria is in law malicious, although no malicious purpose to cause the harm which was caused nor any motive of spite is imputed to the defendant.”

35. This compact statement of law contained a number of key features. First, he identified the plaintiff’s protected interest as her “legal right to personal safety”. Secondly, he identified the defendant’s act as wilful. Thirdly, he described the act as “calculated” to cause physical harm to the plaintiff. Fourthly, he noted the absence of any alleged justification. Fifthly, he characterised the “wilful injuria” as “in law malicious” despite the absence of any purpose (ie desire) to cause the harm which was caused. Having stated the law in that way, Wright J then considered whether it covered Mrs Wilkinson’s claim. He held that it did. He said:

“One question is whether the defendant’s act was so plainly calculated to produce some effect of the kind which was produced that an intention to produce it ought to be imputed to the defendant, regard being had to the fact that the effect was produced on a person proved to be in an ordinary state of health and mind. I think that it was. It is difficult to imagine that such a statement, made suddenly and with apparent seriousness, could fail to produce grave effects under the circumstances upon any but an exceptionally indifferent person, and therefore an intention to produce such an effect must be imputed …”

 

The discussion of the Supreme Court into this tort and partic ularly on the key ingredient ‘maliciously’ is wide-ranging –  covering level-crossings, horses ram-raiding into pubs, pretending to unmask someone as a German spy, and imputations of inchastity.  I was saddened that the promising case name of Mayor of Bradford v Pickles 1895 did not hinge on a gherkhin-related dispute, but rather on water supply…

Of course, you will note that in Wilkinson v Downton, the story that caused the harm was false, made up, whereas the story being told by Mr Rhodes is true. We shall see if that makes a noticeable difference.

72. The order made by the Court of Appeal was novel in two respects. The material which the appellant was banned from publishing was not deceptive or intimidatory but autobiographical; and the ban was principally directed, not to the substance of the autobiographical material, but to the vivid form of language used to communicate it. The appeal therefore raises important questions about freedom of speech and about the nature and limits of liability under Wilkinson v Downton.

73. In Wilkinson v Downton Wright J recognised that wilful infringement of the right to personal safety was a tort. It has three elements: a conduct element, a mental element and a consequence element. The issues in this case relate to the first and second elements. It is common ground that the consequence required for liability is physical harm or recognised psychiatric illness. In Wainwright v Home Office Lord Hoffmann discussed and left open (with expressions of caution) the question whether intentional causation of severe distress might be actionable, but no one in this case has suggested that it is.

 

When writing a book, the author is not obliged to consider that any reader of the book might be caused damage by reading it – that would make it almost impossible to write anything. The Court of Appeal had held that it was applicable in this case to consider that in writing the book, the child was a relevant person to take account of – i.e that he was a specific person who could be said to be affected by it.

 

74. The conduct element requires words or conduct directed towards the claimant for which there is no justification or reasonable excuse, and the burden of proof is on the claimant. We are concerned in this case with the curtailment of freedom of speech, which gives rise to its own particular considerations. We agree with the approach of the Court of Appeal in regarding the tort as confined to those towards whom the relevant words or conduct were directed, but they may be a group. A person who shouts “fire” in a cinema, when there is no fire, is addressing himself to the audience. In the present case the Court of Appeal treated the publication of the book as conduct directed towards the claimant and considered that the question of justification had therefore to be judged vis-à-vis him. In this respect we consider that they erred.

 

 

 

75. The book is for a wide audience and the question of justification has to be considered accordingly, not in relation to the claimant in isolation. In point of fact, the father’s case is that although the book is dedicated to the claimant, he would not expect him to see it until he is much older. Arden LJ said that the father could not be heard to say that he did not intend the book to reach the child, since it was dedicated to him and some parts of it are addressed to him. We have only found one passage addressed to him, which is in the acknowledgments, but more fundamentally we do not understand why the appellant may not be heard to say that the book is not intended for his eyes at this stage of his life. Arden LJ also held that there could be no justification for the publication if it was likely to cause psychiatric harm to him. That approach excluded consideration of the wider question of justification based on the legitimate interest of the defendant in telling his story to the world at large in the way in which he wishes to tell it, and the corresponding interest of the public in hearing his story.

76. When those factors are taken into account, as they must be, the only proper conclusion is that there is every justification for the publication. A person who has suffered in the way that the appellant has suffered, and has struggled to cope with the consequences of his suffering in the way that he has struggled, has the right to tell the world about it. And there is a corresponding public interest in others being able to listen to his life story in all its searing detail. Of course vulnerable children need to be protected as far as reasonably practicable from exposure to material which would harm them, but the right way of doing so is not to expand Wilkinson v Downton to ban the publication of a work of general interest. But in pointing out the general interest attaching to this publication, we do not mean to suggest that there needs to be some identifiable general interest in the subject matter of a publication for it to be justified within the meaning of Wilkinson v Downton.

 

As the Supreme Court point out here – Mr Rhodes case triumphs on the wider public interest of telling his story, but that does not mean that the story HAS to have that wider public interest to defeat a Wilkinson v Downton claim.

Where a story is true, they say, the law gives the freedom of someone to tell the truth a great deal of protection.

 

77. Freedom to report the truth is a basic right to which the law gives a very high level of protection. (See, for example,Napier v Pressdram Ltd [2009] EWCA Civ 443, [2010] 1 WLR 934, para 42.) It is difficult to envisage any circumstances in which speech which is not deceptive, threatening or possibly abusive, could give rise to liability in tort for wilful infringement of another’s right to personal safety. The right to report the truth is justification in itself. That is not to say that the right of disclosure is absolute, for a person may owe a duty to treat information as private or confidential. But there is no general law prohibiting the publication of facts which will cause distress to another, even if that is the person’s intention. The question whether (and, if so, in what circumstances) liability under Wilkinson v Downton might arise from words which are not deceptive or threatening, but are abusive, has not so far arisen and does not arise for consideration in this case.

 

It MIGHT be that a set of circumstances exist in which words in a publication are true, and not threatening, but are abusive and would cause harm to the recipient, but it is quite difficult to think of what those circumstances might be. It may be some time before we see another Wilkinson v Downton claim.

 

Finally, the Supreme Court looked at the mental element of the tort (the intent)

 

83. First, where a recognised psychiatric illness is the product of severe mental or emotional distress, a) is it necessary that the defendant should have intended to cause illness or b) is it sufficient that he intended to cause severe distress which in fact results in recognisable illness? Option b) is close to the version stated by Salmond & Heuston which attracted Lord Woolf in Wainwright v Home Office.

 

They concluded that option b was correct, and declined to develop the law to include ‘recklessness’ within the mental element of the offence.

89. In the present case there is no basis for supposing that the appellant has an actual intention to cause psychiatric harm or severe mental or emotional distress to the claimant.

 

Also hooray for Lord Neuberger’s remarks on free speech.

96. It is true that the book contained material which some people might find offensive, in terms of what was described and how it was expressed, but “free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative provided it does not tend to provoke violence” – see Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, para 20, per Sedley LJ. As he memorably added, “[f]reedom only to speak inoffensively is not worth having”.

97. Quite apart from this, it would, I think, be an inappropriate restriction on freedom of expression, an unacceptable form of judicial censorship, if a court could restrain publication of a book written by a defendant, whose contents could otherwise be freely promulgated, only refer in general and unobjectionable terms to the claimant, and are neither intended nor expected by the defendant to harm the claimant, simply because the claimant might suffer psychological harm if he got to read it (or extracts from it).

 

 

Who has the burden of proof?

 

Well, that’s a stupid title for a blog post.  The burden of proof  – whose job it is to prove whether something happened, and whose job it is to persuade the Court to make the order is the applicant. In public law cases, that’s the Local Authority (the social workers).  It isn’t the parents job to prove that they didn’t injure a child, or that the Court should NOT make a Supervision Order. It is well known, and requires no thought or analysis at all by a lawyer – all of us know that already.

There is, of course, a reason why I am asking that question in the title.  It is because a High Court decision has just emerged that makes me call that obvious truism into question.

Here’s the issue – in a case where consideration is being given to a child being removed from a parent under an Interim Care Order, there’s a specific question to be answered. That is, does the child’s safety require immediate removal.  And in deciding whether to make any order at all, the Court has to consider that the child’s welfare is paramount.  So, a Court won’t make an ICO with a plan of removal unless (a) the child’s safety requires immediate removal and (b) the order is the right thing for the child.  The burden of proof would be on the applicant, the social worker.

 

In the case of Re N (A Child: Interim Care Order) 2015 decided by His Honour Judge Bellamy, but sitting in the High Court, here is how the social worker answered those questions.

 

http://www.bailii.org/ew/cases/EWFC/HCJ/2015/40.html

 

46.         On the key issue of removal, the social worker said that in her opinion ‘N’s immediate safety does not require separation’. On the contrary, she considers that any changes in the current care arrangements ‘will be detrimental to N’s well-being and emotional safety’.

 

So, no the child does not REQUIRE separation as a result of immediate safety risks, and no the child’s removal would not be in the child’s best interests.

 

If the Local Authority case was that the two tests were not satisfied (and that was the evidence given), and the burden of proof falls on them, then the order can’t be made, surely?

Well, that’s why this case is challenging, because the Court DID make the Interim Care Order, did say that that the child’s safety requires immediate separation and did say that separation would be in the child’s best interests.

Hmmm.

Let’s look at this logically. The ultimate decision as to whether the two tests are met is of course the Judge. If the social worker had said “yes, the test is met”, that isn’t the end of it. A Judge can hear all of the evidence and come to a different conclusion.  So, surely the reverse must also apply – if a Judge hears all of the evidence and DOES think that the tests are made out, he or she does not have to accept the evidence given by the social worker as being right, or determinative.

The Judge can, as here, decide that the social worker’s analysis of risk and what is best for the child is wrong.  It would obviously be wrong for a Judge, if they felt that, to simply ignore it and not give their own judgment and reach their own conclusions.

That’s the pro argument for a Judge making an ICO where the LA case hasn’t been made out on their own evidence.

The con argument is that the burden of proof is there for a reason – it is for the LA to prove their case. By the end of their evidence, they ought to be over the line. Yes, a parents evidence might retrieve the situation for the parents case and lead to a decision that the right thing is something else. Or the parents evidence might make the LA’s case even stronger. But by the time the LA close their case, there ought to be enough evidence to say “Yes, looking at everything at this snapshot moment, the tests are made out”.  If the LA case isn’t made out by the time they close the case, and reliance is placed on the later evidence of the other parties, that is smacking of a reversal of the burden of proof.

Otherwise, why have a burden of proof at all? After all, hardly any cases end up exactly 50-50, with the Judge unable to make a decision, with the burden of proof being the final feather that tips the scales.  (The only family case I’ve ever seen like that is the Mostyn J one  A County Council v M and F 2011  http://suesspiciousminds.com/2012/05/04/a-county-council-v-m-and-f-2011/ ) so the burden of proof is more than simply how to settle a tie, it has to be about more, surely?

 

The case here is further complicated, because it wasn’t the Local Authority asking for an Interim Care Order and removal.  It is one of those cases that started as private law proceedings, the Court became increasingly concerned about the child’s well-being  (to be honest, the FACTS of this case probably warrant their own blog post and discussion – in a very short summary, they are about whether the mother had been indoctrinating the child into a form of Jehovah’s Witness belief and practice which was making it impossible for him to have a relationship with his father who did not hold those beliefs – it was an intolerance for non-believers that was the key issue, rather than what the mother and the child were choosing to believe in a positive sense) and made a section 37 direction. And an Interim Care Order with a direction to the Local Authority that the child should be removed and placed in foster care.

That order was the subject of an appeal, and the ICO was stayed pending that appeal. Five months passed, and the LA reported in the section 37, saying that they did not seek removal at an interim stage, but did intend to issue care proceedings. Mother withdrew her appeal.

Care proceedings were issued, and this contested ICO hearing came about as a result of a request from the child’s Guardian.

So, the LA weren’t seeking the ICO, or separation. Although both could only come about as a result of the application that they had lodged for a Care Order.  So, was the burden of proof here on the Local Authority (who had applied for a Care Order) or on the Guardian (who was asking the Court to make an ICO and sanction removal)?  Or was it an application that the Court simply had to hear and determine?  I am honestly a bit legallly stumped on this. My brain says that the legal burden of proof has to be on the party seeking the order, so the Guardian. Just as within care proceedings where the LA is the applicant, a party seeking an adjournment has the burden of proof to persuade the Court to grant the adjournment, even though a formal application might not necessarily be lodged.

An additional complication here was that the LA were saying that not only did they not want an ICO and did not want the power to remove the child, they didn’t intend to exercise that power even if the Court sanctioned it.

In essence, the LA were saying that the religious messages being given to this child were messing him up, but that removing him from mother at an interim stage might mess him up even more. It might make his relationship with his father even more damaged, if he blamed his father for him being taken away from mother and put in foster care.

 

Given that all of this arose from the Judge originally making an ICO and sanctioning a plan of separation, who had the burden of proof for that order?  It seems opaque.  One presumes that the Court was being invited to do this by one of the parties, so the burden would fall upon them. But what if the Court was doing it of their own motion? Then the burden of proof falls upon the Court, who become then both player and referee in the contest.  The section 37 ICO power is a very practical way to allow the Court to intervene to protect a child who seems to be at risk, but as the case law on removal has developed over the years, section 37 ICOs become something of an anomaly. It is very difficult to see how a Court making one of its own motion can avoid a perception that having raised it as a possibility themselves it is then fair to determine an application that they themselves set in motion…

 

The case is complicated STILL FURTHER, because both the LA and the mother indicated that IF the Judge was to make an ICO with a recommendation for removal, in the teeth of the LA saying that they did not want it, they would each appeal.

The Court however felt that the risks did warrant making an ICO and that the child ought to be removed, even if the LA were not willing to do so.

 

I am satisfied that N has suffered emotional harm. The social worker agrees. I am satisfied that the fact that N has been immersed by his mother in her religious beliefs and practices has been a significant factor in causing that emotional harm. The social worker is not convinced. I am satisfied that since the hearing last November N has continued to suffer emotional harm. The social worker agrees though attributes this to the conflict between the parents, not to religious issues. I am satisfied that in the absence of significant change in N’s circumstances there is a risk that he will continue to suffer harm.

  1. Since the shared care order was made N has suffered and continues to suffer significant emotional harm. If the present arrangements continue I am in no doubt that N will continue to suffer that harm. Persisting with the present shared care arrangement is not in his present welfare interests at this moment in time.
  2. I am not persuaded that placement with father is appropriate. For the reasons articulated by the guardian, I accept that the likelihood is that placement in the father’s primary care would have an adverse impact on N’s relationship with his father.
  3. I am satisfied that the change required is that N be removed from the care of his parents and placed with experienced foster carers.
  4. The social worker disagrees. As a result of the position taken by the local authority, if I make an interim care order there is no certainty that the local authority will remove N and place him in foster care. There is no clarity as to the time it will take local authority managers to decide how to respond to an interim care order. If they do not respond positively there could be an impasse between the court and the local authority. For the local authority, Mr Sampson has already indicated that if removal is required he anticipates that the local authority will consider whether there are grounds for appeal. Even if the local authority did not seek leave to appeal, experience suggests that the mother would seek leave. The last time she did so the appeal process took three months. The final hearing of these care proceedings is fixed to take place in mid-August. Against that background, acknowledging the uncertainty about whether an order requiring N’s removal into foster care would be implemented ahead of the final hearing, should the court adopt what might be called the ‘pragmatic’ approach and defer a decision about removal until the final hearing or should the court put that uncertainty to one side and make an order which reflects its assessment of the child-focussed approach required by s.1 of the Children Act 1989?

 

The Judge felt empowered by the remarks of the Court of Appeal in Re W  (the Neath Port Talbot case) in imposing a care plan on a Local Authority who were resistant to it. The Judge concludes that if he makes an ICO with a care plan of removal, the LA’s reaction to it if they disagree must be to appeal and seek a stay NOT to refuse to execute it.   (I think that respectfully, the Judge is wrong there, but I’ll explain why in a moment)

 

         In resolving that issue I derive assistance from the decision of the Court of Appeal in Re W (A Child) v Neath Port Talbot County Borough Council [2013] EWCA Civ 1277. In that case the first instance judge made an assessment of risk which the local authority did not accept. On appeal, the question for the court was whether the judge was wrong to have made a care order on the basis of a care plan with which she did not agree and in the circumstance that the order was opposed by both the local authority and the mother. The leading judgment was given by Lord Justice Ryder. The following passages from his judgment are relevant to the problem which I have identified:

  1. The courts powers extend to making an order other than that asked for by a local authority. The process of deciding what order is necessary involves a value judgment about the proportionality of the State’s intervention to meet the risk against which the court decides there is a need for protection. In that regard, one starts with the court’s findings of fact and moves on to the value judgments that are the welfare evaluation. That evaluation is the court’s not the local authority’s, the guardian’s or indeed any other party’s. It is the function of the court to come to that value judgment. It is simply not open to a local authority within proceedings to decline to accept the court’s evaluation of risk, no matter how much it may disagree with the same. Furthermore, it is that evaluation which will inform the proportionality of the response which the court decides is necessary.
  2. …Parliament has decided that the decision is to be a judicial act and accordingly, the care plan or care plan options filed with the court must be designed to meet the risk identified by the court. It is only by such a process that the court is able to examine the welfare implications of each of the placement options before the court and the benefits and detriments of the same and the proportionality of the orders sought…
  3. …The decision about the proportionality of intervention is for the court…It should form no part of a local authority’s case that the authority declines to consider or ignores the facts and evaluative judgments of the court. While within the process of the court, the State’s agencies are bound by its decisions and must act on them.

 

  1. There is a second issue and that relates to the extent of the court’s power to enforce an interim care order requiring removal in circumstances where the local authority disagrees with that plan and comes to the decision that although it is content to share parental responsibility it is unwilling to remove because, notwithstanding the court’s evaluation, it considers removal to be disproportionate. The law is clear. Although the Family Court dealing with care proceedings can make a care order (whether a final order or an interim order) and express its evaluative judgment that the child should be removed and placed in foster care, it has no power to order removal. If the local authority decides not to remove the child the only mechanism for enforcement of the court’s evaluative judgment is by separate process in the form of judicial review.
  2. On this issue, in Re W (A Child) Ryder LJ makes the following observations:
  3. …once the no doubt strong opinions of the parties and the court have been ventilated, it is for the family court to make a decision. That should be respected by the local authority. For the avoidance of doubt, I shall be more plain. If the local authority disagree with the judge’s risk evaluation they must in a case where it is wrong appeal it. The appellate court will be able to consider such an appeal, where that is integral to the order or judgment of the court. If the welfare evaluation is not appealed then it stands and the local authority must respect it and work with it while the proceedings are outstanding. To do otherwise risks disproportionate, irrational or otherwise unlawful conduct on their part.
  4. There is no purpose in Parliament having decided to give the decision whether to make an order and the duty to consider the basis upon which the order is made to the judge if the local authority that makes the application can simply ignore what the judge has decided and act as if they had made the decision themselves and on a basis that they alone construe.

 

  1. In Re W (A Child) the issues related to a final care order. In this case I am concerned not with a final care order but with an interim care order. Does that make a difference? In my judgment it does not. The observations made by Ryder LJ are equally relevant to interim orders. Parliament has determined that it is for the court and not the local authority to evaluate, on the basis of its assessment of the evidence, whether an interim care order on the basis of removal into foster care is necessary and proportionate. The way to challenge that decision is by appeal and not by decision of senior managers not to remove.

100.     At the hearing in November I came to the clear conclusion that in light of the emotional harm N had suffered and was continuing to suffer it was proportionate and in N’s best welfare interests for him to be removed into foster care under an interim care order. As a result of the mother’s appeal against that order (an appeal which was subsequently withdrawn) N has remained in the care of his parents. Six months later, I find that N has continued and still continues to suffer emotional harm in the care of his parents. I am in no doubt that the child-focussed approach required by s.1 of the Children Act 1989 requires that he be removed from the care of his parents and placed in foster care without further delay. I accept that steps which may now be taken by the local authority and/or the parents may have the effect that my order may not be implemented ahead of the final hearing in August. I am satisfied that that possibility should not deter me from making orders which I consider to be in the best interests of N’s immediate welfare. I shall, therefore, make an interim care order. I make it clear that that order is premised upon an expectation that the local authority will immediately remove N and place him in foster care

 

 

I don’t think that this strong reading of the dynamic between Court and LA  survives either the statute, the House of Lords decision on starred care plans or the President’s own guidance in the Court of Appeal case of Re MN (an adult) 2015 which corrected any misapprehension that might have been caused by Re W a child.   (I have always felt that Re W went far too far with its concept of mexican stand-offs and judicial reviews, and that Re MN puts the relationship between judiciary and Local Authority on care plans in the correct way)

http://suesspiciousminds.com/2015/05/07/mn-adult-2015-court-of-appeal-pronouncements/

 

  • It is the duty of any court hearing an application for a care order carefully to scrutinise the local authority’s care plan and to satisfy itself that the care plan is in the child’s interests. If the court is not satisfied that the care plan is in the best interests of the child, it may refuse to make a care order: see Re T (A Minor) (Care Order: Conditions) [1994] 2 FLR 423. It is important, however, to appreciate the limit of the court’s powers: the only power of the court is either to approve or refuse to approve the care plan put forward by the local authority. The court cannot dictate to the local authority what the care plan is to say. Nor, for reasons already explained, does the High Court have any greater power when exercising its inherent jurisdiction. Thus the court, if it seeks to alter the local authority’s care plan, must achieve its objective by persuasion rather than by compulsion.
  • That said, the court is not obliged to retreat at the first rebuff. It can invite the local authority to reconsider its care plan and, if need be, more than once: see Re X; Barnet London Borough Council v Y and X [2006] 2 FLR 998. How far the court can properly go down this road is a matter of some delicacy and difficulty. There are no fixed and immutable rules. It is impossible to define in the abstract or even to identify with any precision in the particular case the point to which the court can properly press matters but beyond which it cannot properly go. The issue is always one for fine judgment, reflecting sensitivity, realism and an appropriate degree of judicial understanding of what can and cannot sensibly be expected of the local authority.
  • In an appropriate case the court can and must (see In re B-S (Children) (Adoption Order: Leave to Oppose) [2013] EWCA Civ 1146, [2014] 1 WLR 563, para 29):

    “be rigorous in exploring and probing local authority thinking in cases where there is any reason to suspect that resource issues may be affecting the local authority’s thinking.”

    Rigorous probing, searching questions and persuasion are permissible; pressure is not.

 

The Court can, as explained in the next passages of Re MN, give a judgment setting out how they perceive the risks and how they could best be managed, and invite the LA to file a care plan addressing those matters. BUT, if there remains resistance, the Judge cannot compel the LA to remove.  The Court CANNOT dictate to the Local Authority what the care plan is to say.

The division of powers is very plain – the Local Authority CANNOT remove a child unless there is a Court order and the Court decides whether to grant such an order. But the Court cannot impose a removal on a Local Authority who do not want to remove.

Of course, in a very practical sense, a Judge who gives a judgment saying that having heard and tested the evidence, he considers the child to be at danger if the child were not removed, places the LA in a huge predicament. If the Judge is right  on his analysis of risk (and Judges get paid to be right and to analyse risk), and something goes wrong, then the LA will be absolutely butchered at an Ofsted Inspection, a civil claim, a Serious Case Review or heaven forbid, an inquest. It really is an “on their head be it” issue.

It would be a courageous Local Authority who took a judgment forecasting dire consequences for a child and sanctioning removal and decided not to remove. But it has to be their choice. That’s the responsibility that they have.

The LA and mother both said that they would appeal this decision. I would expect that appeal to be successful, based on a reading of Re MN (a child) 2015. However, if the appeal is chaired by Ryder LJ, who had those strong views in Re W that the Court could exert considerable pressure on a LA to change their care plan and woe betide them if they did not,  then I would expect them to lose the appeal.  And frankly, I  personally think that each of the major Appeals on the use or misuse of section 37 ICOs, the Court of Appeal has got each of them badly wrong, so I would not be marching down to the bookies on any prediction.

 

I wonder if the Court of Appeal will clarify the burden of proof issue, or whether it will just get bogged down in who has bigger muscles to flex on care plans, Courts or Directors of Social Services?

 

Banning a person from acting as a McKenzie Friend

 

This was a case heard by the President to decide whether an order that a Mr Baggaley should be barred from acting as a McKenzie Friend should come to an end or be extended. He concluded, having heard the evidence, that it should be extended indefinitely and Mr Baggaley can thus not act as a McKenzie Friend for anyone else. There had also been a civil restraint order, preventing Mr Baggaley from litigating on his own behalf but that was brought to an end.

 

One of the difficulties that I never anticipated when I started to write this legal blog was that it can be uncomfortable writing about cases that have a bad outcome, or judicial criticism for people that I have some personal knowledge of. The same thing happened the last time that the Court ruled that someone couldn’t be a McKenzie Friend, since I knew them (and liked them a lot, and still do). I do have to call those cases straight down the line and tell you how I see them. But it does make me uncomfortable.

So, full disclosure, I have had some correspondence with Mr Baggaley, and in all of my dealings with him, I found him very fair, very reasonable and committed to helping people who had found themselves on the wrong side of the family Courts. He has never behaved in any way towards me the way that the Court describe him doing in this case.  I’m very sorry that this has happened to him.

Like the previous McKenzie Friend who found herself in difficulties (before the last President) , Mr B was someone who had had their own experience with family justice and had taken that experience and decided to help others. That can’t be an easy thing to do, and there are going to be times when emotions run high in the family Courts. I’m sure both have helped people, and have wanted to do nothing other than help people.

 

A complaint that parents sometimes make about lawyers is that they don’t care enough – that they don’t show their emotion, that they can appear dispassionate. Sometimes though, you can care too much, and show your emotions too much.

What the Court describe here, if it happened (and the President heard the evidence, so is better placed than me to decide on it) shows that emotions got the better of Mr B in that particular case, and I can see why the Court decided the case the way it did. I also feel a lot of sympathy for everyone that got on the wrong side of those heated emotions, because it must have been an awful experience.

As the President says

The court corridor is not the entrance to a nightclub, and those going about their lawful business in a court building do not expect to be treated as if by a ‘bouncer’. An exasperated and out-of-character outburst, especially if apology is promptly offered, is one thing. Mr Baggaley’s behaviour to the Bench at Leicester Family Proceedings Court, however, was quite unacceptable. His subsequent behaviour in the corridor was disgraceful. His treatment of Mr O’Grady at Leicester County Court, if less outrageous, was unacceptable. No-one in Miss Sharratt’s position should have to endure being called a “fucking lying slag.” No doubt barrister’s clerks have to put up with many difficult and on occasions unpleasant telephone calls, but there was no excuse for what Mr Baggaley said to Mr Baldwin.

 

There may be lawyers who are happy about these sorts of cases, as they don’t like the idea of McKenzie Friends. That’s their right.  I happen to have had a lot of discussions with McKenzie Friends since I started this blog, and I’ve found all of them to be intelligent and articulate and passionate people. They often disagree with me, but I happen to think that’s healthy.  I’m sure that just as there are good and bet vets, plumbers, nightclub bouncers, social workers and lawyers, there are good and bad McKenzie Friends, and also that there are good vets, plumbers, nightclub bouncers, social workers, lawyers and McKenzie Friends who happen to have  a bad day or bad week.

What happened here is, in my view, unacceptable, but I take no pleasure in it, and I’m sad that it came to this.

You may want to read it for yourself – you may have a different view to me, and that’s perfectly fine.

Re Baggaley 2015

http://www.bailii.org/ew/cases/EWHC/Fam/2015/1496.html

 

 

Court of Appeal say no judicial power to order Court to pay for legal costs

 

Very grateful to Noel Arnold of Coram Legal Child’s Centre for alerting me to this.  You may be aware that post LASPO, there will be parents who will have to represent themselves in court proceedings who would previously have got free legal representation.

The Courts have been concerned for some time about cases in which it would seem to be a breach of article 6 to make a parent represent themselves, and particularly where that would involve a parent cross-examining a child or their former partner about abuse.  The provision in LASPO SHOULD capture those cases and grant exceptional funding where there’s a potential breach of human rights, but in practice it just isn’t happening.

The President has done a few of these cases and pushed the Legal Aid Agency to the brink, by saying that if they didn’t provide funding, he would order that the costs of legal representation should be paid by the Court. Up until now, the Legal Aid Agency have folded (but only in the cases before the President, which is not ideal)

Well now, in Re K-H (children) 2015, they didn’t fold, the Court made an order that a lawyer be provided and paid for by the Court service. The Lord Chancellor appealed it. And the Court of Appeal agreed that there was NO POWER to do that.

 

That leaves us all in a mess. The only thing that the Court can really do now is give a judgment that it would be a breach of article 6 to proceed – but where does that leave the case?  Can the Court make a decision that the Court itself has breached father’s article 6 rights and make an order that the Court pay compensation?  (allowing the money to then be used by the father to pay a lawyer?)   Almost certainly not.

I can’t get the link to the judgment to work at present to chew over the detail, but here is the Children’s Legal Centre summary.

 

http://www.childrenslegalcentre.com/index.php?page=judgment_in_court_of_appeal_case_in_which_cclc_intervened

 

Incapacity of the Monarch (but really about Lasting Power of Attorney)

 

A quirky Court of Protection case from Senior Judge Lush, who seems to have the most interesting life – all of the cases are intricate and involving, and often with rich little details. I am quite envious.

Re XZ 2015

http://www.bailii.org/ew/cases/EWCOP/2015/35.html

The nub of it is that XZ, who is in his seventies and is a high net worth individual, instructed solicitors to draw up a Lasting Power of Attorney. He wanted to ensure that if he lost capacity, that his affairs would be managed, but he was also wanting to ensure that if it was a temporary blip that he would recover from, that decisions would not be made in that interregnum period that he might later regret having been made on his behalf.

There were thus some unusual and very carefully crafted clauses (the fact that the Lasting Power of Attorney makes express provision for decisions involving more than $25 million indicates that there are some significant affairs under consideration here)

 

  1. Dominic Lawrance, the solicitor who drafted these provisions, described their purpose as follows:

    “The purpose of these safeguards is to ensure that the attorneys do not act (other than in limited emergency situations) until XZ’s incapacity has:

    (a) been unequivocally confirmed by psychiatric evidence that is subject to review by the Protector; and

    (b) has endured for a minimum period of 60 days.

    This has been designed to prevent:

    (a) the attorneys taking hasty actions with which XZ might disagree if his lack of capacity were to prove temporary; and

    (b) the attorneys acting when there remained genuine scope for doubt as to whether XZ indeed lacked capacity.”

  2. At the hearing on 7 May 2015, Mr Lawrance added that these provisions were:

    “… the product of XZ’s specific instructions. He is generally loath to confer discretions and powers on other people. He likes to be ‘in the driving seat’ and was only willing to sign the LPA if these safeguards were in place.”

 

 

When the LPA was lodged with the Public Guardian’s office, the Public Guardian refused to register it, meaning that it would have no effect. The Public Guardian took the view that these restrictions meant that it was not a properly formed LPA.  That then led to the Court being invited to decide it.

 

And here is where the bit about incapacity of the monarch comes in.  I had not previously encountered this bit of legislation, and I like it.

XZ’s counsel, David Rees, compared these provisions with those in the Regency Act 1937. Both include a requirement that a third party, who is not medically qualified, should agree with the medical evidence before the powers conferred on the delegate become exercisable. Section 2 of the Regency Act prescribes the following procedure in the event of the total incapacity of the Sovereign:

“If the following persons or any three or more of them, that is to say, the wife or husband of the Sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England, and the Master of the Rolls, declare in writing that they are satisfied by evidence which shall include the evidence of physicians that the Sovereign is by reason of infirmity of mind or body incapable for the time being of performing the royal functions or that they are satisfied by evidence that the Sovereign is for some definite cause not available for the performance of those functions, then, until it is declared in like manner that His Majesty has so far recovered His health as to warrant His resumption of the royal functions or has become available for the performance thereof, as the case may be, those functions shall be performed in the name and on behalf of the Sovereign by a Regent.”

 

It is always nice to be able to say “My client asked for these clauses to be in place, because he wanted similar protection to that provided to the Queen”  –  I don’t imagine the chance to say it arises that often, but if you can deploy it, why not?

So, if the Queen (or any future Monarch) lost their capacity to make decisions, the procedure would mean that on advice of physicians, three or more of the following would need to make a declaration of incapacity – currently Prince Philip, Michael Gove (!), John Bercow (!), the Right Honourable Sir John Thomas, the Right Honourable Lord Dyson. And if three or more of them do that, then the Queen’s functions would be removed from her and given to a Regent.  And she’d only get the powers and functions back if three or more of them agreed.

Ladies and gentlemen, that’s a statutory recipe for a coup in Great Britain. If you wanted to have a coup, that’s your legal route map.

[I’m a bit scared that Michael Gove is one third of the way to being able to seize all power from the Queen, if he can just talk two of the others into becoming ultimate rulers of the UK by his side.  At least it isn’t Grayling I suppose. Given that the Lord Chancellor  could sack the Master of the Rolls and Lord Chief Justice and appoint his own people…I should stop thinking about this]

I am scratching my head as to whether the Mental Capacity Act 2005 with its presumption of capacity disintegrates the Regency Act. The Regency Act is not in the list of repeals. But the Mental Capacity Act 2005 is said to cover people, and there’s no clause that says “people other than a reigning monarch”

 

So I already like the case for raising that bit of constitutional intrigue.

Senior Judge Lush had this to say in relation to why the judgment was published

I can’t imagine that the general public would have the slightest interest in this judgment, but its publication may be of interest to professionals who specialise in this area of the law and draft LPAs on a regular basis, and also to people who are considering making an LPA themselves, and for this reason I shall permit its publication.

 

That rather dampens my spirits, the Judge telling me that the general public won’t be interested, but it interested me.   [And yes, I should get out more]

So, what’s the decision?

  1. XZ acknowledges that his LPA will be less effective because of these provisions but, nevertheless, he wishes them to remain as an integral part of the registered instrument for his own reassurance and peace of mind. Some people may think that this is unwise, but it is his will and preference and it should be treated with respect. The Public Guardian has no right to make a paternalistic judgment on his behalf and decide that it would be in his best interests for these provisions to be severed.
  2. I agree with Mr Rees’s submission that:

    With respect to the Public Guardian, it is no part of his statutory duties to police the practicality or utility of individual aspects of an LPA. In the context of section 23 and Schedule 1, paragraph 11 of the MCA 2005 the phrase “ineffective as part of a lasting power of attorney” clearly means “not capable of taking effect, according to its legal terms as part of an LPA.” Examples of provisions which would be ineffective as part of a power of attorney would include:

    (a) a provision which purported to permit the attorney to make gifts which go beyond the statutory restrictions found at section 12 MCA 2005.

    (b) a provision which purported to go beyond what a person can do by an attorney (such as make a will or vote).

    (c) a provision which purported to permit the attorney to consent to a marriage on behalf of the donor (see MCA section 27(1)(a).

    Neither the court nor the Public Guardian are concerned with whether a restriction that does not contravene the terms of the MCA 2005 may pose practical difficulties in its operation.”

  3. The Public Guardian’s function under paragraph 11 of Schedule 1 to the Act is limited to considering whether the conditions and restrictions are (a) ineffective as part of an LPA or (b) would prevent the instrument from operating as a valid LPA.
  4. If he concludes that they cannot be given legal effect, then he is under a duty to apply to the court for a determination of the point under section 23(1). Otherwise he has a duty to register the power.
  5. Neither Miss Chandoo’s witness statement nor Miss Davidson’s submissions have identified any specific provision in the Mental Capacity Act 2005, or the LPA, EPA and PG Regulations, or the common law of agency that has been infringed by the provisions in XZ’s LPA.
  6. For these reasons, and pursuant to section 23(1) of the Act, I declare that XZ’s LPA does not contain any provisions which: (a) would be ineffective as part of an LPA; or

    (b) would prevent the instrument from operating as a valid power of attorney.

  7. I also order the Public Guardian to register the LPA.
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