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Home > Judgments > 2010 archive

S-C (Children) [2010] EWCA Civ 21

Appeal by wife against a committal order for contempt made on the application of a husband arising from allegedly prohibited disclosure by the wife of information wife relating to their contact litigation. Appeal allowed.

The appellant was Iranian and the husband Turkish. They had married in Turkey in 1999 and had two children but separated in 2006, following which proceedings wee commenced in Turkey and England.  In early 2008, in English proceedings concerning contact, a psychologist described the husband as "by nature, narcissistic". The trial judge then made an order which included a clause prohibiting disclosure of any documents. This was later found by the judge to have been breached as the wife had disclosed the contents of the report to her Turkish lawyer. In this appeal the wife contended that she had simply shown the court order to her lawyer and discussed the psychologist's report with him.

In this judgment Wall LJ sets aside the order for several reasons including: i) the 2008 order did not include a penal notice which was important as both parties were not English: in such circumstances it is important that formalities are observed; ii) while it is possible to breach such an order by disclosing the content of prohibited information, the order should explicitly state that such an action would be a breach; iii) it was not open to commit the wife because a party must be entitled to discuss any legal issue with his or her advisers. Wall LJ also expresses surprise that the judge thought it appropriate to limit the information available to the Turkish court as

"If the judge was of the view (which he plainly was) that he was dealing with a litigious couple each of whom was prepared unscrupulously to disclose information for their own ends in the Turkish litigation one would have thought that the more the Turkish court knew about the English proceedings, the better. Indeed, modern good international practice would have called for cooperation and even appropriate discussion between the English and the Turkish judges. "

This judgment is the subject of an article by Alex Verdan, QC. Click here to read the article.

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Neutral Citation Number: [2010] EWCA Civ 21
Case No: B4/2009/1492

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
His Honour Judge Plunkett sitting in the Birmingham County Court on
18 June 2009

Royal Courts of Justice
Strand, London, WC2A 2LL
28/01/2010

B e f o r e :
LORD JUSTICE THORPE
LORD JUSTICE WALL

____________________
Between:

S-C (Appellant)

- and - 

H-C Respondent

 
____________________
Dorothy Seddon (instructed by Henry Browne - Solicitors)) for the Appellant
The Respondent was not represented and did not attend.
Hearing date: 19th January 2010
____________________
HTML VERSION OF JUDGMENT
____________________
Crown Copyright ©


Lord Justice Wall :
Introduction
1. This is the judgment of the court, to which each of its members has contributed.

2. Muzaffer Sevil Shadrokh-Cigari (the appellant) appeals against a committal order made on the application of Hamid Shadrokh-Cigari (the respondent) by His Honour Judge Plunkett sitting in the Birmingham County Court on 18 June 2009. The judge found that the appellant was in breach of an order which he had made on 29 January 2009 and made an order fining the appellant the sum of £100.

3. The respondent neither appeared nor was represented when we heard the appeal on 19 January 2010. He was, however, clearly aware of the date of the appeal, as he had written to the court on 15 January 2010. attaching to his letter both; (1) a detailed commentary on the appellant's grounds of appeal; and (2) a "Scott Schedule" relating to his application to commit the appellant for (inter alia) alleged breaches of "undertakings given to the court on 18 August 2009". We understood from the appellant's counsel that three days have been set aside next week in the list of McFarlane J, and given the view which we have formed of this appeal, it is plainly important that this judgment is before McFarlane J when he comes to consider the respondent's application.

4. Both because the respondent did not appear on 19 January, and because the appeal raises a number of points of general importance, we reserved judgment.

The background
5. We can take this very shortly, given the nature of the appeal. The appellant is Iranian and the respondent is Turkish. They married in Turkey in 1999. They have two children, both boys aged 9 and 8. There appear to be divorce and other proceedings between them in Turkey, which began on 18 May 2006. As the judge put in "since that time, (the appellant) and (the respondent) have become embroiled in, and are now locked in, an extremely bitter dispute".

6. The critical question in the English proceedings has been the respondent's contact with the children. There have been numerous hearings before different tribunals. At one stage, the children became parties to the proceedings, represented by a guardian who, in turn, instructed a psychologist, Dr. Nicholas Banks, to assess the parties and to advise the court. Dr. Banks reported in December 2007 and also gave oral evidence to the judge. We have his report, which is summarised by the judge in his reserved judgment dated 29 January 2008. Amongst Dr Banks' conclusions were, as the judge put it, that the respondent was "by nature, narcissistic".

7. The order made by the judge on 29 January 2008, at the conclusion of a hearing which appears to have lasted at least 5 days spread over the month, dismissed the respondent's applications for residence and direct contact, although indirect contact was permitted. Amongst the orders made by the judge was the following:-

6. both parties shall be expressly prohibited from disclosing any documents filed in these proceedings or any Family Law Act proceedings between the (appellant) and the (respondent) to any other person save for a Solicitor of the Supreme Court of England or Counsel with rights of audience before the English courts and save that the (appellant) and the (respondent) may disclose to any such school as the children attend during the currency of any undertaking given in these of ancillary proceedings, the relevant General

Forms of Undertakings.
8. Paragraph 5 of the order, it should be said (a) gives the appellant the right to disclose Dr. Banks' report and the judge's judgments given on 20 January 2008 to "any treating therapist" (the appellant had indicated her intention to undertake a course of cognitive behavioural therapy as recommended by Dr Banks); and (b) permits NYAS (which represented the children) to disclose the judge's two judgments of 29 January 2008 to Dr. Banks.

9. We now have both the reserved judgment handed down by the judge on 29 January 2008 and his short extempore judgment also given on that date. The former is a lengthy document running to some 35 pages, Nowhere in it, however, (nor in the shorter, extempore judgment) is there any explanation for the inclusion of paragraph 6 in his order of that date, which the appellant is said to have breached. We can thus only speculate that the reason the judge included paragraph 6 of the order on 29 January 2008 was to prevent the children from being "further involved" (a phrase used by the judge in his reserved judgment) in the Turkish proceedings.

10. In any event, the breach is variously found by the judge in his judgment of 18 June 2009 in paragraphs 4.9 and 5.7. In the former he says: -

She (the appellant) told me in evidence that she had told the police that he (the respondent) had a narcissistic personality disorder because she wanted them to think he was 'mental'. It is, in fact, a misrepresentation of Dr Banks' view given earlier, that (the respondent) exhibited narcissistic characteristics.

And in the latter:-

I have, in the circumstances of this case little doubt that the verbal disclosure of the contents of a document distribution of which was embargoed by virtue of paragraph 6 of the order of January 29th amounts to a contempt, being a deliberate attempt to circumvent the clearly expressed intention of the court.

11. In the committal order, the contempt recorded is that the appellant breached the order by "disclosing the contents of Dr. Banks report to her Turkish lawyer". Attached to a statement made by the respondent in support of the application for the appellant's committal is a document from the respondent's lawyer in Turkey which records that the respondent had been "despatched to a psychiatrist" (we assume that this is Dr Banks, although he is, of course, a psychologist) who had diagnosed him as suffering from an untreatable narcissistic personality disorder.

12. The appellant's case was that she had not disclosed Dr. Banks' report to anyone. What she had done was to show the court order to her Turkish lawyer, and to discuss with him Dr Banks' conclusions about the respondent. For present purposes we are prepared to accept that she gilded the lily somewhat. Whereas Dr. Banks, who is not medically qualified, had said in his report that the respondent "presents as having narcissistic type personality characteristics" , we are content to assume that the appellant told her Turkish lawyer what is contained in the statement summarised in paragraph 11 above, namely that the respondent suffered from a narcissistic personality disorder.

Discussion
13. We are satisfied, despite the absence of oral submission from the respondent, and having taken into account everything that is said in his 15 January 2010 communication with the court that the judge's committal order cannot stand and must be set aside.

14. Although not directly relevant to our conclusion, we do not understand why the appellant required permission to appeal. This is a committal order, and permission is not required: see CPR 52.3(1)(a)(i). The result of permission being sought has been most unfortunate. The order is dated 18 June 2009. The papers did not reach Wilson LJ until 30 November 2009. He was concerned about the unexplained delay, and directed a hearing no later than 31 January 2009. Whilst the appeal is not per se urgent, the delay is regrettable, and was unnecessary.

15. The first point to note, although it was taken somewhat belatedly by Mrs. Seddon, for the appellant, is that the order of 29 January 2008 did not include a penal notice, nor is there any warning on its face that breach was a contempt capable of being punished by imprisonment. As paragraph 6 of the order bound both parties, one of whom was a litigant in person, and neither of whom are English it was, in our judgment, important that it should include a penal notice if alleged breach was to found an application for committal to prison for contempt.

16. There is abundant authority in this court that the formalities of committal proceedings are to be strictly observed, but that a breach of the formalities may be overlooked if it does not affect the justice of the case: see, for example Nicholls v Nicholls [1997] 1 FLR 649. In a case such as the present, where the order is unusual; where one of the parties is in person; and neither is English, it would seem to us important for the formalities to be observed if the order is to have penal consequences.

17. Secondly, if paragraph 6 of the order of 20 January 2008 was to have penal consequences, it seems to us that it needed to be clear on its face as to precisely what it meant, and precisely what it forbad both the appellant and the respondent from doing. Contempt will not be established where the breach is of an order which is ambiguous, or which does not require or forbid the performance of a particular act within a specified time-frame. The person or persons affected must know with complete precision what it is that they are required to do or abstain from doing: - see (inter alia) Federal Bank of the Middle East Limited c Hadkinson and others [2000] 1 WLR 1695; D v D (Access: Contempt: Committal [1991] 2 FLR 34 and Harris v Harris, A-G v Harris [2001] 2 FLR 895 at paragraph 288.

18. On the evidence available to the judge, the appellant was not in breach of paragraph 6 of the order of 28 January 2008. She did not disclose Dr Banks' report to anybody. If the judge had wanted to prevent her from disclosing or discussing the contents of the report with a third party, the order should have said so. It did not.

19. We agree with the judge that an order forbidding the disclosure of confidential documentary information can be breached by a party disclosing the contents of that information – for example by a party reading the contents of a document to an unauthorised third party over the telephone or otherwise communicating its contents. However, if that is the mischief against which the order is directed, it should say so.

20. We note in passing that the respondent attempted to commit the appellant on the basis that she had disclosed the court's order to her Turkish lawyer. Quite apart from the exception provided by section 12(2) of the Administration of Justice Act 1960, it is plain that the order of the court dated 29 October 2008 is not "a document filed in the proceedings" (a point left open by the judge in paragraph 5.3 of his judgment). The appellant admitted showing this document, and a translation, to her Turkish lawyers. She says she did so on the advice of her solicitors. In our judgment she was entitled to do so.

21. Thirdly, we do not think it was open to the judge to commit the Petitioner for discussing the content of Dr. Banks' report with her Turkish lawyer. A party must be entitled, in the exercise of legal professional privilege to discuss any issue with his or her legal advisers, and it is not a contempt of court for a litigant to disclose information arising from or connected with the proceedings with his or her lawyers.

22. Furthermore, we express some surprise that the judge should have thought it appropriate to limit the amount of information available to the Turkish court about the English proceedings. If the judge was of the view (which he plainly was) that he was dealing with a litigious couple each of whom was prepared unscrupulously to disclose information for their own ends in the Turkish litigation one would have thought that the more the Turkish court knew about the English proceedings, the better. Indeed, modern good international practice would have called for cooperation and even appropriate discussion between the English and the Turkish judges.

23. It is equally remarkable that when the judge came to consider a request from the Turkish court for disclosure of the papers in the English proceedings, disclosure was the subject of "strenuous objection" from the respondent, on the basis that the papers would be "misused" by the appellant. Fortunately, and rightly, the judge overruled that objection and ordered disclosure.

24. We make two final points. Firstly, in our judgment, it would have been open to the appellant not to have given evidence, but to have made a submission that she had no case to answer: - see Re B (Contempt of Court: affidavit: evidence) [1996] 1 WLR 626. Secondly, as we are setting aside the judge's order, it follows that the judge's financial penalty also falls. The judge does not reason his conclusion for imposing a fine of £100 save to say that he does not intend to send the appellant to prison. As discussion of the question of penalty does not arise, we say no more about it.

25. For all these reasons, both individually and cumulatively, the judge's committal order was manifestly unsound and will be set aside.

26. The respondent's paper comments on the appellant's grounds of appeal go largely to the facts and do not affect our conclusion. The respondent indeed criticises the judge for his failure properly to punish the appellant for her contempt.

27. It will, of course, be a matter for McFarlane J to decide what issues between the parties it is proper for him to resolve and whether or not the three days we were told have been set aside are a proper use of the time of a Judge of the Division to spend on the affairs of this couple. It is, we think, sufficient for us to state that in our judgment and from what we have seen, a disproportionate amount of time and resources have already been expended in the English proceedings.

28. In all these circumstances, the appeal will be allowed and the judge's committal order set aside.