Our articles are written by experts in their field and include barristers, solicitors, judges, mediators, academics and professionals from a range of related disciplines. Family Law provides a platform for debate for all the important topics, from divorce and care proceedings to transparency and access to justice. If you would like to contribute please email editor@familylaw.co.uk.
A day in the life Of...
Kara Swift
Kara Swift
Read on

Evidence, Practice and Procedure: Disclosure, discovery: the rules and common law

Date:1 AUG 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsThe recently published Imerman v Imerman [2012] EWHC 4047 (Fam), Moylan J does not reflect well on the breadth of Family Procedure Rules 2010; and shows how FPR 2010 leave much to a practitioner's interpretation of the common law. A High Court judge in the Family Division was forced to resort to a variety of sources to achieve what civil lawyers do daily in proceedings under Civil Procedure Rules 1998: namely prepare and serve lists of documents (in which privileged documents are referred to and exempted from inspection, by statement in the list). A high level of representation was brought to bear in Imerman to crack what civil litigators would regard as a small nut.

The judge ‘was determining what directions, if any, [he should] give in respect of an informal application' by the wife for disclosure of documents said by H to be privileged. FPR 2010 r 21.3(3) makes a formal direction such as this unnecessary. It tells H that if he wishes to claim privilege - as does Mr Imerman - he must do so in writing and on ‘grounds'. (In practice if lists are exchanged, this would be done in the list.) W could then challenge this (FPR 2010 r 21.3(5)), by means more fully explained in West London Pipeline and Storage Ltd v Total UK Ltd [2008] EWHC (Comm) 1729 Beatson J and summarised in Family Court Practice 2013. None of this is mentioned by Moylan J (though he refers to CPR 1998 r 31.19(3) which uses the exact same words as FPR 2010 r 21.3(3): it is the latter which governs family proceedings).

The President has often reminded family lawyers that in terms of legal principle family law is no different from other civil litigation (as in eg Richardson v Richardson [2011] EWCA Civ 79: family proceedings are not some ‘Alsatia' (a lawless sanctuary off Fleet Street) immune from the rigours of the common law). Unless the common law is properly applied to family proceedings procedure, the Alsatia point increasingly applies. In the area of disclosure FPR 2010 provides only three disjoined rules to parties to proceedings FPR 2010; yet the common law in relation to disclosure is much wider.

Such rules as there are, are not referred to by Moylan J (rr 21.(1)(a) and 21.3 applied directly in Imerman)). Instead counsel referred him to CPR 1998 ‘for guidance' (in fact often CPR 1998 often represents a summary of the common law: it is more than ‘guidance') and to ‘text books and an authority from Hong Kong'. No one seems to have referred Moylan J specifically to the common law (summarised in CPR 1998). An extensive duty of disclosure of relevant documents exists in all civil proceedings; and this extends to information in the case of family financial remedy proceedings (see eg Matrimonial Causes Act 1973 s 25(1), Livesey (above) and eg Tchenguiz & Ors v Imerman (Rev 4) [2010] EWCA Civ 908, [2010] 2 FLR 814.)

After citation of a number of ‘authorities' Moylan J made a direction that H should deal with what is, in effect, provided for in r 21.3(3): that a party must disclose (ie provide a list of relevant documents: see r 21.1(1), and disclose all relevant information (Tchenguiz)). At para [17] he sets out what, amongst a number of authorities, Beatson J defined in West London Pipeline (above; explained fully in Practice of Family Law: Evidence and Procedure (Jordans, 2012) at 25.13 et seq).

One reason why family litigation is expensive is that the procedural rules can leave inexperienced civil litigators without guidance on relatively mundane points. What hope then for litigants in person and beleaguered district judges faced with a similar problem? For example, there is no link in the rules between the assertion by the rule-makers (which represents the law) that disclosure must be stated (r 21.1(1)) and that inspection of any disclosed document is permitted (subject to rules of privilege, confidentiality and public interest immunity). This is the process of what used to be called ‘discovery' and which Lord Neuberger MR says in Tchenquiz still applies in financial remedy proceedings. This represents the law in relation to disclosure.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Disclosure and a number of the points dealt with above is dealt with in Chapter 24.

The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.