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In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559

Successful appeal against a committal order imposed upon a paralegal after an unauthorised disclosure of documents from the Family Court to the Immigration and Asylum Tribunal.

The appellant was a member of Lincoln's Inn, and hoped to train and practice as a barrister. He was working as a paralegal for a firm of solicitors in Hounslow which specialised in immigration and family law under a principal.

The appellant assisted in the preparation of a case in the Immigration and Asylum Tribunal ('the Tribunal') on behalf of a client of the firm, Mr M, and in doing so prepared and filed a bundle. It was said that the bundle included a number of papers from family proceedings involving Mr M's children. Pursuant to section 12 Administration of Justice Act 1960 and rule 12.73 FPR 2010 the disclosure of those documents would be a contempt of court unless the Family Court had given permission, which had not been sought or granted.

Mr M's appeal was determined by a judge in the Tribunal who was satisfied the behaviour of Mr M's legal representatives fell a long way below that expected of solicitors, and requested a copy of his decision be forwarded to the Family Court in order that the relevant family judge could consider the position and whether contempt proceedings were appropriate or not.

The case came before HHJ Moradifar. No notice of that hearing had been served on the appellant himself. The appellant had provided a statement after an earlier direction from a Recorder. Before the appellant arrived at the hearing the Judge indicated that if he wanted representation he was highly likely to give him the opportunity to find it. (A barrister at the hearing had said they were representing the appellant, the principal and Mr M but when it was pointed out they were in conflict the barrister said they were now representing Mr M.)

After a very short adjournment the hearing resumed with the appellant present. The Judge set out to the appellant that he needed to ask the appellant to take the oath, there may be other questions of him, that this was potentially a very serious breach which may lead to committal and can carry a term of imprisonment of up to 2 years, and if it were proven or showed he had potentially lied under oath there may be a referral to the Attorney General's Office who may or may not decide to investigate charges of perjury. The Judge asked the appellant if he wanted the opportunity of seeking independent legal representation and advice first or wanted to proceed. The appellant said he wanted to proceed.

The appellant gave evidence and was asked questions by the Judge. He agreed he was admitting a breach of court rules, under his principal's instructions. The Judge's ruling was that the breach was so serious it could only attract a custodial sentence, and he sentenced the appellant to imprisonment for 6 months, suspended for 6 months. The Judge directed the principal to report himself to the Law Society (meaning presumably the SRA).

The appellant sought to appeal. He stated that he did not understand what was going on at the hearing. The appeal came before the Court of Appeal.

Baker LJ, in a judgment with which Henderson and Coulson LJJ agreed, noted the Court had repeatedly stressed that committal proceedings were of the utmost seriousness and it was imperative that the strict procedural rules governing such cases must be complied with. In this case the consequences of the disclosure may not have been as serious as in other cases. Nothing he said should be interpreted as excusing the unlawful, unauthorised disclosure of confidential Family Court documents, however it was plain there were a number of procedural errors which inevitably led to the conclusion that the appeal must succeed:

1. It was unclear whether or not the hearing was conducted in open court.

2. It was clear the appellant was given no proper notice whatsoever that he was being accused of contempt of court or of the specific allegations against him. The warnings by the Judge about the consequences of a finding of contempt or the exchanges about legal representation were not anything like adequate to protect the appellant's rights. The proper course which should have been adopted at that stage was either (a) to have issued a reprimand to the principal who seemed to have been principally responsible for any unauthorised disclosure, or (b) if the Judge considered it merited committal proceedings, to have particularised the alleged contempt and then adjourned the hearing to enable the appellant to consider his position and obtain legal advice.

3. The failure to particularise the allegations led to the further defect that it appeared the Judge was never shown the specific documents from the family proceedings which had been disclosed to the Tribunal, so it was impossible for the Judge to gauge the seriousness of the alleged breach.

4. There was little sign the Judge considered the extent of the appellant's culpability. It did not seem to have occurred to the Judge that the principal may have been the real culprit.

5. The errors were compounded by the Judge's direction to the appellant to go in the witness box. He overlooked the fact that a defendant to an application for committal is not obliged to give evidence.

The Court had no doubt that the appeal must be allowed and the suspended committal order set aside. It illustrated again the very great care which all courts have to take when dealing with allegations of contempt. The consequences of the infringement of the rules about contempt proceedings may be just as serious as the consequences of unauthorised disclosure of court documents: in this case it is possible the committal order might have prevented the appellant pursuing his ambition for a legal career.

Summary by Victoria Flowers, barrister, Harcourt Chambers.
You can read the full judgment of In the matter of Nasrullah Mursalin [2019] EWCA Civ 1559 on BAILII