Tag Archives: Williams J

Should Judges be anonymous? The Sharif Court of Appeal decision

Posted on January 24, 2025 by suesspiciousminds

As people will know, Sara Sharif was brutally murdered by her father and stepmother in August 2023 and they were recently convicted of that offence. As part of the factual background of the case, it emerged that Sara together with her siblings had been the subject of Family Court proceedings and that decisions had been made in those proceedings which, had they potentially gone a different way, Sara would not have been in the family setting she was in before her murder.

Journalists understandably wanted to report on this aspect of the case and applications were made for them to be able to report on the Family Court proceedings. A decision was taken about what could be reported and what could not, and one of the issues that was restricted was identification of the Judges who had taken decisions about Sara and her siblings.

The case went before Williams J https://www.bailii.org/ew/cases/EWHC/Fam/2024/3330.html who upheld the decision that the identity of the Judges should not be disclosed.

I accept that there is now considerable force – indeed compelling weight – behind the submissions as Mr Barnes puts it extracted below. That is not to say that all that he submits is correct or that I necessarily agree with it, but the questions posed are legitimate ones which justify exploration by the press.

(a) The criminal trial has served to crystallise an overwhelming public interest in understanding: (i) how Sara came to be placed in the care of her father, (ii) the effectiveness of the safeguarding undertaken by the Family Court, local authority, and CAFCASS, and (iii) the local authority’s understanding of the risk posed by the father from its lengthy involvement with the family1 in light of the referral made by Sara’s school on 10th March 2023 in relation to which the local authority made a decision to take no further action by 16th March 2023; b. The “unbroken chain of causation” back to the family proceedings in 2013, 2015/6, and 2019 is now very clearly established.(c) c. The school referral in March 2023 was referred to within the criminal trial and reported, as was the fact of an order being made by the Guildford Family Court in 2019…..
From the point of view of a judge who has practised in family law for 35 years and sat as a judge for 9 years including 4 years as the Family Presiding Judge for the South Eastern Circuit (which includes Surrey) my perspective on the investigations which took place, the assessments which emerged, the recommendations which were made and the decisions which were taken by the family court in 2013, 2015 and 2019 appear to be well within the boundaries of what one would typically encounter in a case of this nature.

However, it is perhaps precisely that perspective and the subsequent shocking murder of Sara which illustrates why there is a compelling public interest in the media being able to undertake their own consideration of the material and to question or test how we approached the issues and to ask the legitimate question of whether there were things that the system could have done differently or better. Nothing can bring Sara back, nothing can undo the harm that must inevitably have been done to her siblings from their exposure to what appears to have been sadistic long-term torture of her. The sentencing judge described it in all its appalling detail. There will be other processes which will examine the responses of the system but those other avenues do not in any way undermine the compelling public interest in the media being able to discuss the history of Sara’s involvement with the child protection system including the courts from the moment of her birth until her tragic death. If that discussion highlights shortcomings in what was done and whether Sara might have been better protected then those are issues which those of us in the family justice system will have to listen to and consider, those in children’s services will and those who have control of the resources made available to the Family Justice System and to child protection services and safeguarding generally will need to reflect upon and consider whether we can and should do anything differently and whether more resources in terms of child safeguarding and protection or within the Family Justice System are required to minimise the risk of this happening again. On the other hand, that exploration and discussion by the media may only reveal that parents who are sufficiently determined and manipulative can thwart the system.

In part of that judgment, Williams J was somewhat critical about the proposition that the Court should proceed on the basis that any reporting would be responsible, fair and accurate :-

The media submit that authority supports the proposition that the Court must proceed on the footing that any reporting of the proceedings will be responsible, fair and accurate (R v Sarker [2018] 1 WLR 6023at [32(iii)(b)]). That may be a useful starting point, but experience regrettably shows that some reporting is better than others and that it is not a reliable end point. It is also the case that once the media applicants have published the information it is available to anyone to do with it as they wish and in an age of disinformation and anti-fact the court must have an eye to what onward use may be made of the information. As the reporting of the murders of Alice da Silva Aguiar, Bebe King and Elsie Dot Stancombe demonstrates all too clearly, those with malign intent can rapidly distort information to meet their own purposes with devastating real-world consequences. As I said in the course of the hearing the reality is that there will be a spectrum of reporting – even within the represented media parties. Many will indeed report matters responsibly, fairly and accurately. Some will not. Contrast the extract of a judgment and a headline in a well-known national daily newspaper reporting it.

Extract
What this case is not about though is whether an Islamic marriage ceremony (a Nikah) should be treated as creating a valid marriage in English law.
Headline
A British court has recognised sharia law for the first time in a landmark decision as a judge ruled that a wife can claim her husband’s assets in the split. The High Court ruling on Wednesday said their union should be valid and recognised because their vows had similar expectations of a British marriage contract.
On Friday 13th December 2024 I responded to an application for permission to appeal made on behalf of Ms Tickle and Ms Summers and adjourned the application pending this judgment giving reasons for doing so. On Saturday 14th December at 19.18 GMT the Guardian carried a story written by Ms Tickle and Ms Summers reporting that I had refused permission to appeal. Accurate – no; fair – no; responsible – I would venture to suggest not. I could make several observations about how fairly, responsibly and accurately the Dispatches programme broadcast on 20th July 2021 depicted a number of decisions of the family courts. Thank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict! Is reporting which only presents one side of the story fair, responsible and accurate? By any ordinary meaning of those words, I would suggest not. What it is very close to is advocacy or campaigning and that is one aspect of reporting but so is sensationalism as well as good investigative reporting. To apply some broad presumption which equates the sort of reporting undertaken by Nick Wallis to that of Andy Coulson is simply wrong. The Leveson Inquiry and the imprisonment of members of the press for egregious infringements of the Article 8 rights of hundreds of individuals makes abundantly clear that some elements of the media do not always adhere to high standards. So with respect it seems to me that to create an assumption that the press reporting will be fair, accurate and responsible is to create the equivalent of the Emperor’s New Clothes narrative which everyone knows is false, but no one dare state. Many of the media no doubt will adhere to that standard but regrettably experience of the real world as opposed to some utopian ideal teaches us that some will not – including amongst the mainstream media. Authorising disclosure to the press of extensive material about sensitive shielded justice proceedings and permitting reporting on it does not mean they will all report it fairly, accurately, and responsibly and the more extensive the disclosure and publication authorised the more the court is entitled to balance that with minimising the risks of disproportionate infringements of Article 8 rights of those concerned.

My conclusion on the naming of third parties and judiciary is therefore that there is no presumption that they should be named in shielded justice cases. For the judiciary I would accept that there is an assumption in shielded justice cases of naming because s.12 Administration of Justice Act 1960 contemplates that their name will be open notwithstanding the presence of the broader shield. In relation to other third parties – social workers and other child protection professionals – I would be inclined to a starting point that shielded justice preserves anonymity for them. For experts, jurisprudence and the Reporting Pilot provide a starting point of identification.

But these starting points must always be subject to a case specific evaluation which will involve consideration of elements relating to the case itself, the individuals and what it is legitimate to infer from the accumulation of knowledge we have about risks arising in the same way we may infer risk to children arising from publication and risks to health professionals in contentious medical treatment cases like Charlie Gard and Zainab Abassi.

I don’t think it will surprise anyone to know that the Press disagreed with that categorisation and that the Williams J decision was appealed.

Here’s the link to the appeal judgment

https://www.bailii.org/ew/cases/EWCA/Civ/2025/42.html

Tickle & Anor v The BBC & Ors [2025] EWCA Civ 42 (24 January 2025)

(For what my own personal opinion is worth – very little – but I’ll set it out, I do think that if the Courts are going to name social workers and Local Authorities and paediatricians, then in circumstances where there is legitimate media interest in decisions made by Judges then they too should be named. I slightly share Williams J concerns that the information might not be used to provide a balanced and reasonable account – we do after all live in an era when a national newspaper runs a headline of “Enemies of the people” to describe a Supreme Court ruling that they disagreed with… but I also think that the Streisand Effect is real and the more one tries to keep the Press away from something the more tenacious they’re likely to be. A tough case but on balance I would have published the names)

Anyway, here are the grounds for the appeal

The journalists’ grounds of appeal (upon which the Media Parties also rely) take four main points:

i) It was a serious procedural irregularity for the judge not to have given reasons before anonymising the historic judges.

ii) The judge adopted an unfair, biased and inappropriate approach to the journalists and the media generally (including relying on his own erroneous analysis of alleged media irresponsibility), thereby unacceptably encroaching on their rights under article 10 of the European Convention on Human Rights (ECHR). This ground was added by amendment and permission has not yet been granted to allow it to be pursued.

iii) The judge ought to have held that the demands of open justice meant that anonymity for a judge could not be justified within the framework of balancing article 8 and article 10 of the ECHR.

iv) The part of the Order anonymising the historic judges could not be justified in the absence of any specific application or evidential foundation, and was inimical to the proper administration of justice.

The Judges in question were approached for their views:-

On 20 December 2024, King LJ directed that the historic judges be contacted to obtain their views (if they wished to express any). On 9 January 2025, leading and junior counsel for the historic judges filed a note indicating that: (a) none of them had sought anonymity, (b) each of them now had serious concerns about the risks which would arise if they were now identified, particularly in the prevailing circumstances, including the content and often inflammatory nature of public and media commentary arising from the intense scrutiny which has followed from the December judgment, (c) those concerns related not only to their own personal wellbeing but also to their family members and others close to them, whose interests the court might also want to take into account, (d) two of the historic judges (Judges 1 and 2, who were now retired and made only an emergency protection order and an interim care order respectively) considered that it would be right for their identities to remain protected, (e) Judge 3 was a sitting judge who was not, therefore, able to adduce evidence and did not feel it appropriate to express a position on whether their identity should remain protected, and (f) the historic judges considered that a risk assessment should be undertaken before any decision was made and that, if the anonymity part of the Order were to be varied, further assessments should be made of what (if any) protective measures should be taken before that decision was implemented, and (g) the Head of Security at HMCTS’s Chief Financial Officer’s Directorate had said that the Judges: “do not have secure digital footprints and the ease at which the residential address details of the judges can be accessed by anybody utilising the internet, creates very significant security/safety vulnerabilities. If there is a campaign, including potential ‘hate’ messages targeting [the historic judges], their personal safety and the personal safety of their family could be very severely affected”.

(I think that this is powerful – as we know, there is a very polarised media and once things appear in the media they also have a life of their own on social media and that can become very ugly very quickly. One can easily forsee some people reading an assertive headline and taking it upon themselves to harass the Judges. We can’t forget that the people to blame for Sara’s murder are the people who were convicted of it. And also, that Judges understandably are currently very mindful of an extremely serious assault that took place on a Judge in Milton Keynes, despite that being in a Court building with security)

The first question the Court of Appeal addressed was whether there was jurisdiction to prohibit the identification of the Judges.

Issue 1: Was there jurisdiction to prohibit the publication of the names of judges?

The critical jurisdictional question is the one that, it seems to me, the judge ought to have asked himself when it came into his head to order anonymity for the historic judges at the end of the hearing on 9 December 2024. At that point, no party had suggested that such anonymity was necessary. Moreover, no evidence of any kind had been filed supporting the making of such an order. The position at that date was, notionally at least, that the names of the historic judges had been in the public domain since the hearings over which they presided years before. It is true that the cases before them would have been heard in private and covered by section 12 of the AJA 1960 and section 97, and would, in all likelihood have been listed as something like “Re S (children)”. But the historic judges’ names appeared on each of the orders that they made. Orders are public documents. Further, the fact that these judges were sitting on the days in question at the courts in question was public knowledge as it should have been. In these circumstances, once the matter occurred to the judge, he ought, in my view, to have asked himself on what legal basis he could order the anonymity of the historic judges.

Neither the Local Authority nor the Guardian had submitted to the judge at any stage that the protection of the children required that the historic judges be granted anonymity. That remains the position. Accordingly, the parens patriae inherent jurisdiction of the court to protect the children was not engaged. Whilst there was no application for an injunction under section 37, the court would, in theory, have had power to grant an injunction to restrain the publication of the historic judges’ names (see the wide scope of that section as explained by the Judicial Committee of the Privy Council in Convoy Collateral Ltd v. Broad Idea International Ltd [2021] UKPC 24, [2023] AC 389 at [57], and by the UKSC in Wolverhampton City Council v. London Gypsies and Travellers [2023] UKSC 47, [2024] AC 983 at [145]-[153]). It would have been very unusual for the court to grant such an injunction of its own motion without any application being made or intimated by the historic judges or anyone else. In any event, it has not really been suggested by anyone that section 37 (without section 6) gave the judge the jurisdiction to order anonymity. For the avoidance of doubt, no cause of action, whether in misuse of private information, breach of confidence or anything else was being asserted before the judge.

It seems to me, therefore, that the only realistic jurisdictional foundation for the judge’s decision was section 6 of the HRA 1998, perhaps taken alongside section 37. Section 6 provides, as I have said, that it is “unlawful for a public authority to act in a way which is incompatible with” an ECHR right. Accordingly, if the judge had, on the 9 December 2024, reason to believe that the historic judges’ article 2 or 3 rights would or might be engaged by allowing the press to publicise their names, he would have had to refrain from doing that, and if he had had reason to suppose that their article 8 rights would be engaged, he would have had to undertake the balancing exercise envisaged in Re S.

It is clear, in my judgment, that articles 2, 3 and 8 apply as much to judges as to any other person. It is less clear, however, that judges, even in cases like this, need to consider, of their own motion, when asked to relax reporting restrictions, whether to anonymise the names of the judges who have heard the cases in question. I have considered very carefully the submissions of the advocate to the court to the effect that the rare and extreme factual background to this case might itself mean that the article 8 threshold for the judges had been reached. I have looked carefully at the judge’s later reasoning that explains why he thought that social media and reporting risks to judges have, in the modern world, became sufficiently alarming and serious to reach the threshold.

I have, however, concluded that the judge was wrong. He had no jurisdictional foundation for making the anonymity order he did. Section 6 did not require him to trawl through his own experience to see if there were risks that he could imagine facing the historic judges. If, notwithstanding the lack of evidence to that effect, the judge was concerned about their being named, there were other, more appropriate, ways to protect them. He could have contacted HMCTS to warn them of the Order that he was making and the risks that he foresaw. HMCTS would, in that event, as has happened now, have considered how the judges could be protected.

I should interpose that nothing I say here should be interpreted as minimising the risks that judges in the position of the historic judges face. I have taken very seriously what the historic judges and HMCTS have said. But none of that material, which substantially relates to the potential impact on the judges of the publicity generated following the making of the Order, was before the judge. He had no evidential basis on which to think that the threshold for the application of articles 2, 3 or 8 had been reached.

It is the role of the judge to sit in public and, even if sitting in private, to be identified, as explained in Scott v. Scott, Felixstowe and Marsden. Judges will sit on many types of case in which feelings run high, and where there may be risks to their personal safety. I have in mind cases involving national security, criminal gangs and terrorism. It is up to the authorities with responsibility for the courts to put appropriate measures in place to meet these risks, depending on the situation presented by any particular case. The first port of call is not, and cannot properly be, the anonymisation of the judge’s name. That must be particularly so, where those names are already notionally in the public domain. Moreover, it is no answer as was suggested, to say that there is only a limited interference with open justice, because the historic judges’ names add little to the story. For all the reasons given in the cases I have cited, it is not for judges to decide what the press should report or how journalists should do their jobs.

The authorities that I have cited demonstrate that judges are in a special position as regards open justice. The integrity of the justice system depends on the judge sitting in public and being named, even if they sit in private. The justice system cannot otherwise be fully transparent and open to appropriate scrutiny.

For the avoidance of doubt, I am not saying that judges are obliged to tolerate any form of abuse or threats (see [54] above). Nor am I saying that it would never be possible for section 6 of the HRA to allow, or even require, a court to consider, even conceivably of its own motion, making an anonymisation order relating to judges. In my judgment, however, it is very hard to imagine how such a situation could occur. That is for three reasons. First it is difficult to see that such an order could be justified without specific compelling evidence being available as to the risks to the judges in question. Secondly, the court would have to be satisfied that those risks could not be adequately addressed by other security measures. Thirdly, the court would have to conclude that the risks were so grave that, exceptionally, they provided a justification for overriding the fundamental principle of open justice.

The first reason is sufficient to dispose of the anonymisation of the historic judges in the Order in this case. There was no evidence before the judge on 9 December 2024 that the judges had been physically threatened, and none supporting the proposition that their article 8 rights were in jeopardy. The judge had no evidence about the historic judges’ private or family life, and did not need to speculate as to the generic risks that family judges might face in the modern age of social media. I agree with what Nicklin J said in the IPSA case (see [47] above) about the threshold that needs to be reached and the need for resilience. I acknowledge that the case of Spadijer recognises the changes that have occurred in our societies and the increased sensitivity of our era, but I do not think that affects the need for judges to operate in the open.

In these circumstances, I take the clear view that the judge had no basis, in the absence of specific evidence affecting the historic judges, on 9 December 2024, to think that articles 2, 3 or 8 were or might be engaged. He, therefore, had no need to undertake any balancing exercise between article 8 and article 10. The historic judges’ identities were in the public domain and ought to have remained in the public domain.

We do not know whether the judge ever became aware of the fact that abusive threats against the historic judges have, since the verdicts against the father and step-mother, most regrettably appeared on the internet in social media posts. The father’s counsel obtained a sample of these threats and sought to admit them in evidence on the appeals. We looked at them de bene esse (for what they were worth). I would admit them in evidence, since they were not available before the hearing on 9 December 2024, and it was useful for the court to know about them in its deliberations. To my mind, however, these threats do not alter the position. They are not threats from parties affected by the orders that the historic judges made. They are generic threats of the kind that are, unfortunately, all too commonly now made against politicians and public figures of all kinds. It is one thing for an internet troll to post a message saying that “politician X should be strung up”, and quite another for a party to litigation to threaten the judge directly. Likewise, the generic fears of the historic judges and the recently expressed concerns of HMCTS do not, in my judgment, alter the position. There are, as I have said, other ways of protecting the historic judges.

In the circumstances of this case, the judge had no jurisdiction to anonymise the historic judges either on 9 December 2024 or thereafter. He was wrong to do so, and the Order must be varied accordingly. I will return to the process by which that is to be achieved in the final section of this judgment.

To be honest, having succeeded on that point the appeal is inevitably going to succeed, but we’ll keep going.

Issue 3: Was there inappropriate bias against or unfairness towards the media?

I have set out some of the colourful language used by the judge at [27] and [30]-[33]. It is said that the judge demonstrated unfairness and bias against the media in general and the journalists in particular. This ground is also academic now that I have decided that the judge had no jurisdiction to do as he did.

I do, however, think that the threshold for permission to appeal on this ground is met, and I would accordingly give that permission on the basis that the ground had a real prospect of success. It was, I think, unfair of the judge to say, with such vehemence, at [60] that the journalists had been guilty of inaccurate, unfair and irresponsible reporting. The decision to adjourn the journalists’ application for permission to appeal just before the end of term was akin to dismissing the application. The distinction was, in the circumstances, a technical one. The decision to adjourn necessitated the application to me for permission to appeal, which I granted on 19 December 2024. At the time that the judge adjourned the application for permission to appeal on 13 December 2024, the parties thought, as the judge had told them, that his reasons would not be available until the New Year. It was excessive in the circumstances to accuse the journalists of irresponsible reporting even if the application for permission had been technically adjourned rather than dismissed. His sarcastic remark at [60] about the Channel 4’s Dispatches programme of 20 July 2021 was unwarranted. He said, for no reason that I could discern: “[t]hank goodness that journalists don’t have to operate as the courts do and hear both sides before delivering their verdict!”. Such sarcasm has no proper place in a court judgment.

There are other examples in the judgment of the judge taking an excessively strong line about the quality of reporting in other cases. It was inappropriate for him to have prayed in aid other cases within his experience (as, for example at [59]) to support the position he had adopted without any of the parties asking him to do so.

I do not intend to proliferate my remarks. The mistake the judge made was to think that he could properly trawl through his own experiences to create a case for anonymising the judges. He should not have done so. Courts operate on the basis of the law and the evidence, not on the basis of judicial speculation and anecdote, even if it is legitimate to take judicial notice of some matters. In short, the judge’s judgment demonstrates, to put the matter moderately, that he got carried away.

It is not necessary to decide whether the judge’s inappropriate and unfair remarks about the press and the journalists amounted to actual or apparent bias. He undoubtedly behaved unfairly towards the journalists and Channel 4 – and that is enough to allow the appeals. The judge lost sight of the importance of press scrutiny to the integrity of the justice system. The case should be remitted for further hearings to a different Family Division judge.

The Court of Appeal determined that the names of the Judges would be provided to the Press but that they would be given 7 days so that His Majesty’s Court Service could have time to prepare any necessary additional security measures

For the reasons I have given, I would allow the appeals primarily on the jurisdiction ground, but also on the grounds of the judge’s failure to seek submissions or evidence before giving his decision, and his unfair treatment of the journalists and Channel 4. I would, as I have said, give all the media parties permission to raise the additional ground of appeal. I would deprecate the judge’s use of anecdotal material and his own experiences to create a case for anonymising the judges.

The historic judges have asked for time to prepare themselves if their names are to be revealed. Since that is the result of allowing the appeal, I would order that they be given 7 days from the date of this judgment before their names are published, to allow HMCTS to put measures in place to protect them from any potential harm once their names are released.

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Not a vacuum but a low pressure vessel

Posted on March 20, 2019 by suesspiciousminds

 

The case of

            CS v SBH & Ors [2019] EWHC 634 (Fam) (18 March 2019)    

https://www.bailii.org/ew/cases/EWHC/Fam/2019/634.html

is the most complicated argument that I have read in a family law judgment that doesn’t contain the words “Brussels II” at some point.  It also involves David Burrows in some capacity in the litigation, and David is an assiduous and careful legal commenter and one of the most precise human beings I’ve ever known, so that adds to my pressure in trying to simplify and clarify the decision without getting it wrong.

 

In case that’s prompting you to close the browser and eat some biscuits instead – it is an important decision for any solicitor representing a child, or Guardian, or a parent’s lawyer giving advice as to whether the child could be separately represented.  It also involves two children’s solicitors duking it out over which of them would represent the child, which is not something I’ve ever seen before. Read on.

 

At essence, it was an appeal from a private law order that the child should live with the father, the child expressing that she wanted to live with the mother.  The child lodged the appeal, but one of the solicitors for the child was actively opposing the appeal.  (Yes, that dull pain around your temples is normal at this point)

The child had two solicitors.

One instructed by the Guardian, who considered that the child did not have capacity to instruct a solicitor (and hence could not bring this appeal properly, as the Guardian had not given instructions to lodge such an appeal)

One instructed by the child directly (and who was acting pro bono (for free) , because she was concerned that the original proposal was that the mother was funding the child’s legal fees) who considered that the child DID have capacity to give instructions, wanted to appeal the order and so the appeal should be heard.

So the first thing for the Court to work out was which of these two solicitors was actually representing the child. If the child had capacity, it would be Ms Hopkin.  If the child lacked capacity, it would be Ms Coyle.

 

But even beyond that, the Court had to at great length decide whether an appeal was a continuation of existing proceedings or fresh proceedings.

 

  1. After all those preliminaries we were able to get onto the question of the preliminary issue. I had thought that some oral evidence from Ms Hopkin and Ms Coyle might be desired but in the event Ms Hopkin was appearing as the advocate and in any event no party wished to put questions to either Ms Coyle or Ms Hopkin and so the matter proceeded on submissions. As arguments developed this appeared to boil down to two particular issues:
  1. i) Firstly whether an appeal constituted new proceedings, such that the provisions of FPR 16.6 (3) applied, in which case Ms Hopkin’s opinion on whether the child was able having regard to her understanding to give instructions in relation to the appeal appeared to be determinative.

ii) Secondly if the appeal was part of a continuation of proceedings whether pursuant to FPR 16.6 (5) and (6) the court considered that the child has sufficient understanding to conduct the appeal concerned without a children’s Guardian. This involved consideration of both the law and the evidence.

  1. As I shall return to later this apparently clear delineation between the role of Ms Hopkin and the role of the court turns out not to be so following a deeper dive into the authorities.

 

(I’m pleased that it was ‘apparently clear’ to Williams J, because this caused me such pain in my cortex that I had to contemplate an MRI scan before moving on.  But joy, it turns out NOT to be so ‘clear’)

 

In a nutshell, if the case is new proceedings, then the child instructs a solicitor Ms Hopkins, and if Ms Hopkins thinks the child can give her instructions well then what Ms Hopkins says effectively goes on capacity. But if it is a continuation of proceedings, the Court has to consider whether the child has sufficient understanding to instruct solicitors.

So is an appeal new proceedings, or a further stage in existing proceedings?

 

  1. The following matters suggest that an appeal is fresh proceedings:
  2. i) The appeal is made in the High Court not in the family court and is allocated a specific number. It is made by an Appellants Notice not a C2 ‘Application in existing proceedings.’

ii) Legal Aid treats proceedings with a different case number as ‘new proceedings’ and an appeal after a final order is not covered by the same certificate.

iii) Cost are dealt with separately.

  1. The following matters suggest that an appeal is part of a continuum of proceedings:
  1. i) An application for permission to appeal may be made in either the lower court or the appeal court. This suggests the appeal process is linked as between the lower court and the appeal court.

ii) The appeal court has all the powers of the lower court (FPR 30.11)

iii) The appeal court’s powers directly affect the order made by the first instance court, including the power to vary any order or judgment, refer any application or issue for determination by the lower court, order a new hearing (FPR30.11 (2) and stay the order of the first instance court. These all suggests a direct jurisdictional connection.

iv) The appeal court’s function is identified at FPR 30.12 is reviewing the decision of the lower court unless it considers it to be in the interests of justice to hold a rehearing.

v) The appeal court powers include substituting its own decision or exercising its own discretion fresh rather than remitting the matter to the first instance court; Fallon v Fallon [2010] 1 FLR 910 CA. The court may also admit fresh evidence and may hear oral evidence.

vi) The respondents to the appeal are the other parties to the proceedings in the lower court (see FPR 30.1 (3)) and the appellant’s notice must be served on any children’s Guardian.

vii) Where a child is a party to the first instance proceedings they are automatically a party to the appeal proceedings the rules do not provide for the court to reconsider their party status or whether they will be represented by a Guardian and who will be appointed as the solicitor.

 

  1. Notwithstanding the points which point towards an appeal being separate proceedings I conclude that the factors pointing in favour of an appeal being a continuation of proceedings are far more compelling. In particular the seamless continuation of party status and the powers of the appeal court all point to an appeal being another stage of proceedings; albeit different in nature. I don’t consider that the use of an appellant’s notice, rather than a C2, shed much light on the issue. Applications in existing proceedings can also be made by the use of other forms under the part 18 procedure. Seems to me the appellant’s notice and the giving of a separate case number are administrative matters rather than affecting the substance of the proceedings. Nor do I consider the rules relating to the availability of legal aid shed much light on whether the proceedings are separate or part of a continuum. The rules applied by the Legal Aid Agency are a matter for that agency.
  2. For all of the reasons identified above I conclude that an appeal is a continuation of the first instance proceedings. It is another step or stage in those proceedings and thus the provisions of FPR 16.6 (5) apply.
  3. That being so it is for me to decide whether the child has sufficient understanding to conduct the appeal proceedings without a Guardian.

 

 

(The Court also took the view that as a result of Re CT the Court ultimately had discretion anyway, so all of that was rather academic, but at least we all now know that an appeal is a continuation of existing proceedings, not new proceedings)

In Re CT (A Minor) (Wardship: Representation) [1993] 2 FLR 278, [1994] Fam 49, [1993] 3 WLR 602, CA Court of Appeal (Sir Thomas Bingham MR, Waite and Staughton LLJ) specifically considered the effect of the identically worded predecessor to FPR 16.6 (3) (b)(i) namely FPR 1991 9.2A (1) (b) (i). The Court of Appeal considered that taken together with FPR 1991 9.2A (10) that the court retained the ultimate right to decide whether a child required a Guardian or not. Lord Justice Waite said

‘…if the rule is to be construed according to the whole tenor of the Act and its subsidiary legislation, it must in my view be taken to reserve to the court the ultimate right to decide whether a child who comes before it as a party without a next friend or guardian has the necessary ability, having regard to his understanding, to instruct his solicitor’

 

 

Moving on then, as the Court had to decide whether the child had sufficient understanding to instruct a solicitor, what did they take into account?

 

 

 

  1. Having regard to the jurisprudence I consider that Lady Justice Black’s summary in paragraph 36 of her judgment in Re W (highlighted above) draws together much if not all of the earlier observations on the issue. What is clear is that there has been a shift away from a paternalistic approach in favour of an approach which gives significantly more weight to the autonomy of the child in the evaluation of whether they have sufficient understanding. Thus the earlier authorities need to be approached with a degree of caution in terms of the level at which they set the ‘bar’ of understanding. The autonomy issue sounds both in pure ‘understanding’ terms and in welfare terms.
  1. i) In assessing understanding the court is likely to attribute more weight to the child’s views of the issues and the reasons they give for wishing to be involved amongst others. The expression of a wish for an objectively ‘unwise’ (or unsound) outcome might now not undermine the evaluation of sufficient understanding in the way it might have in 1993. It is perhaps also likely to hold the child to a somewhat lower expectation of understanding of the litigation process than emerges from Booth J’s judgment cited in Re N (above) which appeared to contemplate an ability to negotiate complexities of litigation which many adults might struggle with.

ii) In so far as the welfare of the child is a primary consideration in the decision-making process (Art 3 UNCRC and Mabon suggest it is) the welfare of the child sounds both in favour of their involvement (recognising the value they may add to the process and their rights as a person significantly affected by the decision) and against (where involvement may expose them to harmful emotional consequences).

  1. Thus in determining whether the child has sufficient understanding to give instructions to pursue an appeal and to conduct the appeal I need to consider a range of factors including
  1. i) The level of intelligence of the child

ii) The emotional maturity of the child.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position. Some degree of influence is a natural component of decision making but the closer to the ‘parrotting’ end of the spectrum one gets the lower the level of understanding there is likely to be. An unwise decision does not mean the child does not understand although it will no doubt depend on the extent to which the child’s view diverges from an objectively reasonable or wise decision.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation. Care should be taken not to impose too high a level of understanding in this regard; many adults with capacity would not and we should not expect it from children. An ability to understand that their solicitor put their case but also has duties of honesty to the court, an ability to understand that the judge makes a decision based on an overall evaluation of the best interests of the child which balances many competing factors; the ability to understand that they might attend court, could give and evidence, could read documents; the ability to recognise the stress of exposure to the court process and the arguments between others. The presence of all of these would be powerful signs of a high level of understanding. Conversely the absence of them or evidence of a distorted understanding would be contra-indicators.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm.

  1. Ideally the assessment would be swift and pragmatic without too deep a dive into the issues in the case and the competing analyses of the solicitors involved. In some cases, an expert assessment might be required in particular where the solicitors assessments are relatively evenly balanced or the court is otherwise unable to reach a clear view

 

 

In this case, the Court had two solicitors, both experienced at representing children, and both with competing views as to whether the child had capacity to instruct them.

Discussion

  1. Each case must be approached on its own facts. The stage at which I am assessing the issue of sufficiency of understanding comes relatively late in these proceedings where an experienced family court circuit judge has already determined the substantive issue and made findings which are relevant to my evaluation of the sufficiency of the child’s understanding.
  2. The views of Ms Hopkin on the one side and Ms Coyle on the other are diametrically opposed. There is however an immediate and obvious difference between them. That is not the age and experience of the solicitor conducting the evaluation but rather the extent to which the evaluation is an informed evaluation. Ms Hopkin’s evaluation is based primarily on her meeting with the child supported by what she can glean from communications that she has had with the child or which she has been sent by the child and some other modest exposure to information. Although her evaluation has not taken place in a vacuum it is very much in a low pressure vessel in terms of the material that has been available to her to assist in the evaluation. Ms Coyle’s evaluation has been taken with exposure to the full atmosphere of information which bears upon the issue. As Ms Hopkin accepted in submissions, an initial evaluation of a child may very well have to be reassessed the light of further information that becomes available. This is far from a simple case given the history of it. Thus initial impressions almost certainly would have to be reassessed.
  3. Turning thus to some of the factors which I need to weigh in the balance in making my own evaluation of whether this child is of sufficient understanding to conduct the appeal without a children’s Guardian my conclusions are set out below and draw upon all that I have set out in this judgment as well as what I have read and heard.
  1. i) The level of intelligence of the child: she has the intelligence of or slightly above her chronological age.

ii) The emotional maturity of the child: she lacks emotional maturity, this being evidence by an inability in particular to hold a balanced view of her father or an understanding of her position.

iii) Factors which might undermine their understanding such as issues arising from their emotional, psychological, psychiatric or emotional state: the extent of her enmeshment with her mother and the emotional harm that she had suffered from that is likely to diminish her ability to understand the true nature of the issues.

iv) Their reasons for wishing to instruct a solicitor directly or to act without a guardian and the strength of feeling accompanying the wish to play a direct role: I accept that the child has felt her voice has not been listened to or heard but that actually does not reflect the reality given that she has had a Guardian and solicitor both in the original proceedings and recently. Whilst inevitably her reasons for wanting to have a solicitor and appeal will be mixed, arising at least in part from the fact that her solicitor and Guardian did not achieve the outcome she desired I consider that it is also likely that her position has been influenced by her mother and maternal family either directly or indirectly. Although every child is of course different the fact that this child has not been in direct contact with Mr Burrows or Ms Hopkin pushing for information, seeking answers or otherwise proactively pressing her case indicates to me that her desire to have her own solicitor in Ms Hopkin and to pursue the appeal is not particularly strong. Her acceptance of the possible withdrawal of proceedings in summer 2018 is further evidence of this.

v) Their understanding of the issues in the case and their desired outcome any matter which sheds light on the extent to which those are authentically their own or are mere parroting of one parents position: the child’s lack of a full appreciation of the reasons for living with her father in part at least arises from the fact that the issue has not been addressed in therapy although I note that the Guardian understood that the child had knowledge of the reasons but had not processed it. The child’s wish to live with her mother was accepted by the Guardian and HHJ Meston QC as a genuine one. Inevitably it is in part a product of influence (whether direct or indirect and see HHJ Pearl’s conclusion) but all our views are in part a product of influence of others views. The child’s wishes in this case are closer to the authentic end of the spectrum than the parroting end although they probably fall closer to the middle.

vi) Their understanding of the process of litigation including the function of their lawyer, the role of the judge, the role they might play and the law that is applied and some of the consequences of involvement in litigation: Ms Coyle’s analysis but also the contents of some of the child’s expressed views whether in letters or to the Guardian do not indicate much of an understanding of the court process, the functions of a solicitor, the role and function of a judge or the consequences of having a solicitor acting directly. They emerge as very simplistic and unrealistic. Although neither Ms Hopkin or Ms Coyle specifically addressed the question of the child’s understanding of the appeal process, the nature of an appeal is in many ways harder to understand than the first instance process given it is a review of the judge’s decision rather than a rehearing of the application.

vii) The court’s assessment of the risk of harm to the child of direct participation for the risk of harm arising from excluding the child from direct participation and the child’s appreciation of the risks of harm: both the Guardian and HHJ Meston QC considered that the child would accept an outcome that was contrary to her expressed wishes. It is clear from the Guardian’s report that continued litigation is contrary to the child’s welfare. In particular the burden that it is considered that she carries to promote the mother’s position is harmful. Further involvement in litigation in this appeal or otherwise will likely be contrary to her welfare interests. Exposure to sensitive information to a child of this age and with this history will be harmful. Although her actual involvement in this appeal might be limited the process of challenging the judgment would inevitably involve detailed discussions with the child about the evidence. On the other hand, she has expressed a desire to have Ms Hopkin act for her and to appeal. This has endured since HHJ Meston QC’s adverse judgment. However it is not pressed proactively and the Guardian and Ms Coyle did not detect any real desire to appeal in any event. Thus preventing the child from engaging directly in this litigation with the effect that it would very probably bring the appeal to a juddering halt is not likely in my view to be perceived by the child as a significant insult to her autonomy as an individual.

  1. Giving all due weight to the child’s personal autonomy and having regard to the welfare implications of her not being able to instruct a solicitor to pursue her appeal overall and taking account of all of those matters which weigh in favour of the conclusion that she does have sufficiency of understanding I am quite clear that the factors which support the conclusion that the child does not have sufficient understanding substantially outweigh those pointing the other way. Inevitably the evaluation is more an art than a science and the weight to be given to each component cannot be arithmetically totted up. The overall impression that clearly emerges is one of a child who does not have sufficient understanding to conduct the appeal without a children’s Guardian. That is not to say that Ms Hopkin’s initial evaluation was wrong; it has to be looked at in the light of the totality of the material available. The test in FPR 16.6 (6) is not met. My conclusion would be the same as if I were considering the test under 16.6 (3) as to whether the child is able having regard to her understanding to give instructions in relation to the appeal.

 

 

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The Tooth, the whole Tooth and nothing but the Tooth

Posted on November 20, 2017 by suesspiciousminds

In which the father from the forty tons of Toblerone case https://suesspiciousminds.com/2017/10/21/forty-tons-of-toblerone/ (remember, he ‘discreetly’ arranged for his children to see a solicitor in a relocation dispute and paid the solicitors fees of £174,000) made an application for mother’s divorce solicitor to be barred from acting for her.

I don’t usually do divorce blogs, but this is curious.

S v S (Application to stop Solicitor Acting) 2017
http://www.bailii.org/ew/cases/EWHC/Fam/2017/2660.html

The deal apparently is that whilst father was deciding which solicitor to instruct himself, he sent round his representative OE to in effect interview some top-drawer matrimonial hot-shot firms (what is known in the trade as a ‘beauty parade’) to see who he wanted to go with.

OE says that on 30th November 2015, he went to see Mishcon de Reya, Stewarts Law and then our lead player, Mr Raymond Tooth of Sears Tooth.
The father/husband decided to go elsewhere, but objected when mother subsequently instructed Mr Tooth.

Mr Justice Williams was appropriately sniffy about the failure, even in such a big money case with uber-silks, to provide the practice direction documents.

12. I have read the trial bundle. I note in passing that none of the usual practice direction documents, such as an agreed chronology, case summary, reading list, or list of issues was included as required by PD27A. I very much hope I shan’t have to make this observation again to those involved in this case.

The chronology, when it finally emerged, threw up something interesting. Father/husband had signed a letter of retainer with HFC solicitors on 23rd November 2015 – a week before he saw at least two other solicitors and possibly the third, Mr Tooth.

It was the subject of debate whether this was understood practice in big money divorce cases that even after signing on with one lawyer, a client might continue the beauty parade to see if anyone else caught his eye, or whether this actually was a way of conflict blocking any other hot-shot firms to prevent them acting against husband/father.

Williams J sets out the law

8. Supplementing the submissions on the law that I have received, both orally and in writing, I have been referred to the following texts and cases: (a) Passmore on Privilege (3rd ed); (b), Minter v Priest [1929] 1 KB 655, (c) Minter v Priest : [1930] AC 558, (d) In a Little Spanish Town (Francis Day & Hunter v Bron) [1963] Ch 587; (e) Great Atlantic v Home Insurance [1981] 1 WLR 529; (f) HRH Prince Jefri Bolkiah v KPMG (A Firm) [1998] UKHL 52.; (g) Davies v Davies [2000] 1 FLR 39; (h) Re T v A, (children, risk of disclosure) ) [2000] 1 FLR 859; (i) B & Others v Auckland District Law Society [2003] UKPC 38; (j) Fulham Leisure v Nicholson, Graham & Jones [2006] EWHC 158; (k) the West London Pipeline case [2008] EWHC 1729; (l) Re Z (restraining solicitors from acting) [2009] EWHC 3621; and (m) G v G (financial remedies, privilege, confidentiality) [2015] EWHC 1512.

9. The law ultimately was largely agreed, although there was a difference between the parties on three issues: firstly, whether the risk of disclosure of confidential or privileged information can come from subconscious or unconscious influence; secondly, whether there can be a partial waiver of privilege and how that might be dealt with; and thirdly, whether making an injunction is mandatory if the grounds are established, or whether the Court still retains a discretion whether to grant the order or not.

10. In summary, the principles I derive from all of those cases and which I apply are as follows.

(a) the duties arising in confidentiality and legal professional privilege arise whether the information is imparted to a solicitor directly by a principal, or by an agent on behalf of his principal. It would therefore apply to any confidential information or legally privileged material which arose between Raymond Tooth and OE.

(b) the duty arises whether the parties formally entered into a legal relationship or not. The imparting of information in contemplation of such a relationship would suffice. Thus a preliminary meeting between solicitor and client in the course of a beauty parade could suffice, probably even if pro bono or not charged for.

(c) the rules apply in family cases just as much as in civil actions. There is no absolute rule though that a solicitor cannot act in litigation against a former client.

(d) in the first instance it is a matter for the solicitor involved to consider whether, consistent with his professional conduct rules and the proper administration of justice, he can continue to act. If he concludes he cannot, that will usually be the end of the matter. If he concludes he can continue to act then the Court retains the power to grant an injunction to prevent him from acting.

(e) where a former client has imparted information in confidence in the course of a fiduciary relationship, and /or where that information is privileged, there are strong public policy reasons rooted in the proper administration of justice which support the approach that a solicitor in possession of such information should not act in a way that might appear to put that information at risk of coming into the hands of someone with an adverse interest.

(f) it must be established that the confidential or privileged information is relevant or may be relevant to the matter on which the solicitor is now instructed by the person with an adverse interest to that of the former client.

(g) where it is established that a solicitor is in possession of such confidential and/or privileged information, the Court should intervene to prevent the information coming into the hands of anyone with an adverse interest, unless there is no real risk of disclosure. Once it is established that a person is in possession of such information the burden is on them to show that there is no such real risk. In this context “real” means it is not merely fanciful or theoretical, but it does not need to be substantial.

(h) the risk of disclosure may arise from deliberate act, inadvertent disclosure or unconscious influence or subconscious influence. In the latter case in particular it might be quite fact specific whether that risk arises or not.

(i) in the context of family litigation it is hard to conceive of a situation where the risk of disclosure would not satisfy that test where the Court had concluded that detailed, confidential financial information and/or privileged information had been disclosed to a solicitor by one party to a marriage which was, or might be relevant to a potential dispute between them. In most cases that would create a real risk where that solicitor was subsequently instructed by the other party.

(j) a party advancing such an application may decline to waive privilege or confidentiality, or may elect to partially waive privilege. If he partially waives privilege the Court may order full disclosure in relation to that transaction in order to determine an issue such as an application for an injunction like this, and the Court may take steps to ensure that the privilege is not waived for all purposes, but to ensure that the cat can be put back into the bag. In cases such as this the question should be considered at the directions stage, in particular where, as here, partial disclosure in the form of the attendance note has been made.

(k) if the principles on which an order can be made are established an order should usually be made, unless it is established that there are other more significant public policy reasons for not granting it, including that the Court concludes that the injustice to the respondent in granting the order outweighs the injustice to the applicant in not granting it. Relevant considerations might include, firstly, whether the information had been imparted during an exercise designed either wholly or in part to conflict out other solicitors who the respondent might seek to instruct; whether there are other firms who might now be able to act for the respondent; whether the application was made promptly; the additional expense and delay that might be occasioned to the respondent if they were obliged to instruct new solicitors; whether any such expense could appropriately be off-set by the applicant.

 

The issues in the case were, however, mainly factual, rather than legal. Had husband’s representative OE actually met with Mr Tooth at all, and had confidential information been exchanged. This sounds like a peculiar thing to have a factual debate about. But OE said that he had met with Mr Tooth, Mr Tooth disagreed. Both had to give oral evidence.

OE said that another lawyer was present, that Mr Tooth had said that his charging rate was £700 per hour and that Mr Tooth had produced detailed notes and a structured analysis.

However, witnesses from Sears Tooth said this

Laura Broomhall and Kelly Edwards say the following, which is of some relevance. They were the only two solicitors working for Mr Tooth on 30 November. They have no recollection of any meeting. Laura Broomhall has no recall of OE’S face. Ms Broomhall undertook a conflict search and consulted her attendance notes and diary for 30 November and found no records. Kelly Edwards has no notes or record in her diary, or attendances for 30 November. Ms Edwards met the mother in March 2016 and was not prompted to recall the case by that meeting.

39. Both Ms Broomhall and Ms Edwards say Mr Tooth has never charged £700 an hour. Ms Broomhall says she has no Eastern European connection, Kelly Edwards likewise. Laura Broomhall says that she would take a full note and Raymond Tooth a short note. Kelly Edwards says Raymond Tooth’s notes were far from structured; the assistant would take a detailed note, Raymond Tooth would write a few keywords no one could read. Ms Broomhall says Raymond Tooth has never behaved in the way OE suggests. Kelly Edwards agrees that he does not behave in that way.

Hmmmm.

Judicial findings
Analysis and Conclusions.
40. Issue 1: can the husband prove a meeting took place between Raymond Tooth and OE on 30 November? On balance, yes, I believe there was a meeting of sorts between Raymond Tooth and another member of his staff and OE on that day. The following matters demonstrate this: the appointment in Raymond Tooth’s diary that was put there by him following some contact by OE and not crossed out, a telephone message from some point in the afternoon by OE in which he gave his number, the Google search for the premises of Sears Tooth — I do not consider the time differences to be of any particular significance to OE’S credibility, they may arise from the use of different time zones on his devices — OE’S recollection of the interior of the premises (the piece of artwork, the obtaining of a card and the layout of the conference room) and the combination of OE’S own evidence and Mr Tooth’s evidence persuade me that an appointment was booked and that OE attended for it and some form of meeting took place.

41. The second and third issues: if a meeting did take place, can the husband prove any confidential or privileged material was communicated to Raymond Tooth and his assistant and can the husband prove that such material is or may be relevant to the current dispute or contemplated dispute.

42. Although Mr Marshall QC is right to say that the burden is not a heavy one, it must of course be context specific and be viewed in the light of all the evidence and all the circumstances. I consider the following factors to be significant in determining what is more likely to have occurred at this meeting. Inevitably I cannot refer to every matter that I have considered.

43. In order really to determine these issues as the husband seeks, I must be able to rely on OE’S evidence, together with any independent corroboration. Unfortunately overall I conclude that OE’S evidence is in many ways unreliable.

44. He produced no briefing note setting out the main facts or the principal issues he wanted to deal with, which is a little surprising and suggests someone not very committed to record-keeping or someone not placing much importance on the meeting.

45. He said the meetings were arranged to see a lawyer who would be a good fit for the husband, although he was not sure that he had any exposure to litigation at that time. It seems from the chronology that the overall picture that emerges is this was all part of long-term planning by the husband for possible future litigation in England. If there was something on the horizon though, at the particular time it seems to have been more related to the situation of the children than the divorce, which from the husband’s point of view was done and dusted nine years before. Those circumstances do not suggest that in initial meetings there would be detailed disclosure of confidential information as opposed to some general discussions about the approach of the lawyer and general discussions of jurisdiction.

46. OE did not disclose, in either his statement or in his oral evidence, that in fact he or the husband had seen HFC on 21 October and, more importantly, that the husband had signed a retainer letter with HFC on 23 November, a week before the meetings. As the husband’s representative for these purposes in London, it is inconceivable that OE was not aware of this and indeed more likely than not that he had made the recommendation to the husband to instruct HFC following the meeting they had had on 17 November. Although Mr Marshall QC says that OE could still have been looking for a better fitting lawyer than HFC, I have to say I consider that improbable. If he was, why not say so in his statement, that he retained them for the interim whilst he continued the search? Given it is now known that there were two meetings with HFC, including a second one with the husband’s Russian lawyer, I am not prepared to accept this explanation. I am satisfied that the husband selected HFC because he thought they were the best fit. Indeed he remains with them now, over two years after his initial meeting.

47. That fact inevitably affects the analysis of the later meetings. Perhaps they were arranged in advance of 23 November, I have no evidence on when they were booked, and perhaps OE went through with them just to double check his selection of HFC. I consider it more likely than not though that by this stage there was also an element of ejecting those solicitors out of the pool of lawyers who the wife might consult.

[Yeah, that’s my view too….]

48. Turning to some of the evidence about the meeting itself. OE said in his statement at paragraph 5 that his earlier meetings overran, that is his earlier meetings with the firms Mischon de Reya and Stewarts Law. This was not his account in evidence, which put the Stewarts meeting finishing at 1.30 to 2 pm. He dealt with his arrival in both his statements and in neither did he say anything about a gap between the solicitors’ meetings.

49. I thought his account of his movements that day seemed to be made up on the spur of the moment, in particular his trip to the hairdressers after his meeting with Stewarts in Fetter Lane and before his attendance at Sears Tooth. That seemed to me to arise from his realisation that in his evidence he had created a window of time that was inconsistent with his earlier account. Why he would call Sears Tooth to say that he was running late is hard to fathom when on his own account he was not. The haircut story seemed to mirror the new explanation he had given slightly earlier in his evidence of having a manicure to fill the gap between the end of his Sears Tooth meeting and the time on the attendance note.

50. I got the overall impression that despite saying on a number of occasions that he had a clear recollection of the meeting, that actually his recollection was not clear at all. The most obvious example was that he clearly and firmly, but erroneously, asserted that Natasha Slabas was present at the meeting. I think he had simply looked at the Sears Tooth website and identified someone he thought had attended and then embellished his account by making reference to that person having an Eastern European connection.

51. The what I have termed an attendance note at B19 could be capable of corroborating his account, in particular if I was satisfied it was both contemporaneous and accurate. The timing on it at C10 puts it at either 6.02 pm or 7.02 pm GMT. OE said this time may be when it was last amended, but it tells me nothing about when it was started, nor does it, or he, tell me what the amendments were to it. It could be as much some aide memoire, put together after all the meetings concluded with some points he wanted to relay to the husband, as anything else. Curiously the meeting with Raymond Tooth comes second in his note before the single entry for what he said arose from his prior meeting with Stewarts. If these were truly contemporaneous notes that seems odd. Given my general concerns about how reliable and accurate a historian OE is, I cannot even determine whether what he ascribes to Raymond Tooth is accurately ascribed. It could have come from any of the meetings, or indeed nowhere, as the presence of Ms Slabas did.

52. OE’s notes of the meeting are so short as to suggest almost nothing about the content. They do not identify who the other meetings were with, for instance. He said his notes of the meetings on 17 November were much more extensive.

53. Perhaps HFC were indeed selected then whilst OE and the other lawyer, TB, were both present. It would make sense that the selection was made with the input of the husband’s Russian lawyer present. That suggests that these later meetings were indeed subsidiary and what took place was, relatively speaking, unimportant.

54. Even if OE is right in what he ascribes to Mr Tooth, it gives no clear insight into what might have been discussed. Why would a bulletproof jurisdiction be of relevance to the husband? He had his divorce and was not contemplating further divorce jurisdiction. It might be of interest on the children, I suppose, in determining habitual residence and the ability to bring proceedings in England. What does the comment “no generous deed” tell me? It could relate to the wife and children living in England, it might relate to maintenance. But even if OE had said the husband had paid the wife large sums, how could that be confidential?

55. OE gave no evidential context to the comments and what information they related to, it was really speculation as to what they might have related to rather than anything concrete. They could have been phrases conjured from nothing. Given that on balance I do not feel able to rely on the attribution of those comments, it may not matter too much what they actually mean, but it all adds into a very unclear and unreliable picture.

56. OE’S account of the length of the meeting and whether it commenced on time has varied quite significantly from the correspondence to his statements. Whilst this may be relatively minor, in itself it supports a poor not a good recollection. OE is clearly not a person who keeps accurate records, or indeed very many records at all perhaps.

57. His assertion about Raymond Tooth’s strategic notes with a strategic map seems inconsistent with what is said about Raymond Tooth. It is also different to what he said in his statement where he described Raymond Tooth writing well-structured notes. In the letter of 9 March it was said that OE saw Ms Slabas taking notes in the meeting. In his statement he said, “I can’t be sure she took any notes although my recollection is she did”.

58. Neither Kelly Edwards nor Laura Broomhall recall the meeting and the evidence is it was usually one of those who was present.

59. The £700 per hour charging rate figure comes from nowhere. The other solicitors say he has never charged this or said he would. Mr Marshall QC said it might be the figure including VAT. I am not sure whether the husband would be eligible to pay VAT or not where he is resident.

60. Sears Tooth have retained no records at all. There is no copy identification, which OE did not mention providing in his first statement but referred to in evidence: “I may have given him a passport copy of the client”. There is no dictated or handwritten file notes, no bill. Mr Tooth described the process of making up a file and how it would be retained.

61. Much of what OE said about Mr Tooth’s attitude could derive simply from his public image. It is not consistent with what Mr Tooth or his assistants say about his attitude with clients, it is more caricature that a person who has not known him as a client might have.

62. OE says he has no notes or feedback or summary in written form about the firms which he provided to the husband. He said he had a telephone call with him. He said, “I did a verbal report, I read them out to him”, but he did not say why he had recommended HFC.

63. He also said at one point that he had the other appointments confirmed in his laptop, but he had not confirmed the one with Sears Tooth. I am not sure whether he was simply saying that he had not got email confirmation in that respect.

64. The evidence overall of Mr Tooth of the requirement for passport identification to be brought, of how files are made up with the handwritten and dictated notes and their storage is consistent with a brief and non-specific meeting at which little, probably not even the name of the principal, was disclosed. I very much doubt that the husband would want detailed disclosure of highly confidential information to a significant number of firms, in particular I doubt it would be authorised after he had retained his first choice firm. I very much doubt that OE was given free rein to disclose the husband’s highly sensitive financial and other dealings. Anything he was authorised to disclose would have been carefully vetted, particularly at this stage. The absence of a briefing note suggests to me that not much would have been disclosed.

65. The clear impression of strategising and manoeuvring emerges from the judgment of Mr Justice Peter Jackson, all designed to further the husband’s goals, often involving the deception of the wife and designed to strengthen the husband’s position in any future litigation and weaken the wife’s. The timing of the meetings with the six firms fits in with the later manoeuvring over the children being put in touch with lawyers early in 2016. The way the situation with the children was created suggests very careful planning and manoeuvring by the husband. The failure to be frank about the meetings with HFC mirrors the incomplete disclosure about the involvement with Dawson Cornwall in the children’s case.

66. I am led to conclude that the meetings with at least some of the six firms, probably all of those seen on 30 November; given the first three seen on the 17th or earlier clearly involved more serious consideration by OE and the Russian lawyer, the later ones were at least in part motivated not by a genuine consultation but a conflicting exercise.

67. I cannot conclude the whole process was. Indeed if it had been there are some other obvious names that would have been seen. Indeed, even by 30 November there may still have been some lingering or vestigial genuine reason for completing the survey of firms, but by 3 o’clock on 30 November 2017 I am satisfied that OE was not seriously considering instructing Sears Tooth and this undoubtedly influenced the nature of the meeting and the information given.

68. It is probably self-evident by now that I thought that OE was rather blasé about the need for accuracy in matters evidential. He seemed very relaxed about the fact that he had got it wrong about Natasha Slabas. He later said in his evidence he did not think it mattered much about being accurate. He said he was unaware of the need to be 100 per cent careful. I think that attitude generally infects his evidence. He is rather casual about details and seemed quite prepared to elaborate to suit the point he is trying to sell. I do not believe I can rely on the accuracy of his account.

69. Of course there are aspects of it which are true. There are aspects which are patently false. The latter does not mean the rest is false. The former does not mean the rest is true. He has of course a potential motive to exaggerate or fabricate because part of the purpose in seeing Sears Tooth may have been to conflict them out. In any event, his boss certainly did not want Sears Tooth acting and so as his head of his family office he has an obvious motive to do his boss’ bidding. The failure to disclose the earlier instruction of HFC and their retention simply adds to the picture of OE as being a witness who cannot be relied upon. To maintain he saw Sears Tooth with a genuine intent to consider instructions when he knew HFC had been retained and not to disclose that shows a lamentable attitude to the affirmation that he took to tell the truth, the whole truth and nothing but the truth. In saying what I have about OE I do not believe it was done with anything other than the Husband’s approval – this was not an agent going rogue but an agent doing his master’s bidding.

70. Overall Mr Tooth I conclude was the better witness. He conceded points which supported the meeting likely having taken place. He remains adamant he cannot recall anything about the meeting, which would be consistent with a short but uninformative meeting. I find it hard to ascertain why Mr Tooth would say he could not recall it if he could and why he would not have declined to act. As a solicitor with 50 years’ practice and with the reputation he has, what is one client more or less, why risk your reputation, indeed potentially more, if he was found to have misled the Court over the matter?

71. On the balance of probabilities, I do not find that any confidential material was imparted to Raymond Tooth or that any privileged information or advice arises. On balance I do not accept that the meeting was anything like that described by OE. I conclude that it was a very brief meeting which perhaps OE was attending to complete the job of going around the firms he had been instructed to with the parallel intention to conflict them. Whilst I cannot determine precisely, or even fairly closely, what was said and how the meeting developed, I conclude at most it may have been more in the nature of a brief and theoretical discussion, rather than the detailed, fact heavy, assets discussed, advice heavy meeting that OE seeks to portray. Mr Tooth described how some meetings were more general, about the law and how his position might depend on how the client put matters to him. It might of course have been far less than that, a perfunctory and very brief meeting which contained nothing of substance.

72. That being my conclusion on issues 2 and 3, I do not need to go on to consider issue 4, whether there is any risk of disclosure, nor do I need to consider my discretion in relation to whether an injunction should be granted or not. The application for an injunction is dismissed.

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