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Evidence, Practice and Procedure: 'Control', disclosure and enforcement of orders

Date:18 JAN 2013

David Burrows - Practice of Family Law: Evidence and Procedure

David BurrowsThe life of the Queen's Bench and Chancery Division judge is more straightforward under Civil Procedure Rules 1998 ('CPR 1998') than that of the family judge under Family Procedure Rules 2010 ('FPR 2010') when it comes to some aspects of enforcement of orders. Under both sets of rules, CPR 1998 r 71.2 (applies in family proceedings: FPR 2010 r 33.23) enables the court to order a debtor to provide information as to his means, and any other matters about which information is needed. CPR 1998 r 71.2(6) provides that a person required by court order so to do shall attend court, and '(b) when he does so, [shall] produce at court documents in his control which are described in the order...'.

In Thursfield v Thursfield [2012] EWHC 3742 (Ch) a claimant wife ('W') was seeking enforcement of an order against her former husband ('H'); and she sought documents concerning a trust fund he had set up. In that case His Honour Judge Purle QC (sitting in the Chancery Division) was able to hold that the disclosure 'was reasonably ancillary' to the enforcement proceedings and to order H to produce trust documents. He held that he was able to award injunctive relief to W in his inherent jurisdiction.  

Parties may want to be a little circumspect in similar circumstances. North Shore Ventures Limited v Anstead Holdings Inc [2012] EWCA Civ 11 points the way; but it also shows up a critical lacuna in FPR 2010. Floyd J had been asked to make a similar order to HHJ Purle. The appellants had failed to produce trust documents. What then is meant by control in r 72.1(6)(b) (set out above)? The answer is there in CPR 1998 r 31.8, says Toulson LJ. Documents must be disclosed if they have been in a party's control, that is to say.

A party has or has had a document in his control if -

(a) it is or was in his physical possession;
(b) he has or has had a right to possession of it; or
(c) he has or has had a right to inspect or take copies of it.

Rule 31.8 does not occur in FPR 2010. 'Control' cannot necessarily be defined in the same way. A party dealing with the same question in family proceedings must either make up a definition of 'control' for him/herself; or ask the court to find that CPR 1998 r 31.8(2) represents the common law. So it may do; but the adviser is still left with the nagging worry: if it represents the common law why did the rules committee cut it out of FPR 2010 Part 21 (the Part 31 equivalent in FPR 2010)?

If 'control' does apply in family proceedings, it also applies, on the North Shore Ventures analysis, to all aspects - production and enforcement - of disclosure; and as for freezing such assets as there are, Matrimonial Causes Act 1973 s 37 applies ('impeding the enforcement of any order': s 37(1)') as does Civil Procedure Act 1997 s 7 freezing orders. So in appropriate circumstances trust documents can be ordered to be produced.

David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Disclosure 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.