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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.

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About suesspiciousminds

Law geek, local authority care hack, fascinated by words and quirky information; deeply committed to cheesecake and beer.

2 responses

  1. I love that Millet quote: judicial dogmatism (and logic) – ‘The cat is still a cat. It can be put back in the bag.’

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