username

password

Established
 AlphabiolabsBerkeley Lifford Hall Accountancy ServicesIQ Legal Training

Home > Judgments

Griffiths v Tickle & Ors (Re Disclosure by Counsel for Appellant and Application by First Respondent) [2022] EWCA Civ 465

This matter related to a fact-finding judgment in Children Act proceedings. On 30 July 2021 it was determined that the judgment could be published without anonymising the mother and father concerned. On 10 December 2021, the Court of Appeal gave judgment upholding that decision and dismissing the father’s appeal.

___

In September 2021, Leading Counsel for the father, Mr Clayton QC, disclosed some of the appeal papers to non-parties without permission from the court ("the Disclosure").

Two issues arose from the Disclosure. Firstly, the propriety of the Disclosure, and secondly, the application by the first respondent to the appeal ("Ms Tickle") for permission to report aspects of a Note about the Disclosure and a witness statement, both provided to the court by Mr Clayton.

The court regarded the Disclosure as a significant breach of the confidentiality regime that exists to safeguard the rights and interests of children in proceedings of this kind. Mr Clayton should have realised that he should not have made such disclosure without the court's permission. The court concluded that there may have been a contempt of court, but that it was not necessary to take any further action given that the harm was limited, the breach was careless and not deliberate, a prompt apology was made, and Mr Clayton would have to bear his own costs.

The court granted Ms Tickle's application. Now that the relevant proceedings had taken place in public and the court had dealt with the issues to which the documents related, there was no longer reason why the relevant documents should not be subject to the ordinary principle of open justice.

The essential legal framework

The court considered Section 12 of the Administration of Justice Act 1960 ("AJA") and the Family Procedure Rules ("FPR"), and summarised the structure of the regime as follows [6-7]:

Children Act proceedings are generally concluded in private, because this is necessary to protect the welfare of the child. Section 12(1) AJA makes provision about the publication of information about such proceedings. This covers the publication of accounts of what has gone on in front of the judge, and documents filed in the proceedings.

Publication of such information may be a contempt of court. Section 12(4) AJA provides that if publication is authorised by rules of court, then it will not be punishable as contempt. Rule 12.75 of the FPR provides for some kinds of communication to be authorised by default. The court can authorise a disclosure that would otherwise be at risk of amounting to a contempt of court.

A disclosure of information that falls within s.12(1) AJA which is not authorised by the FPR or by an order of the court may be a contempt of court.

The facts

On 26 July 2021, Lieven J circulated a draft of her judgment allowing publication of the fact-finding judgment. On 27 July 2021, at a time when the draft judgment was confidential and subject to an embargo, Mr Clayton discussed the case over dinner with a senior solicitor ("the intermediary") with expertise in child care law who was a friend of his wife. Mr Clayton asked the intermediary whether there were any organisations which "might be interested in intervening on the issue of publication of the judgment from the perspective of the child's right to privacy" [11]. The intermediary told Mr Clayton about Association of Lawyers for Children ("ALC").

On 30 July 2021, Lieven J's judgment was handed down. Publication of the fact-finding judgment was ordered but a stay was granted pending an application for permission to appeal. On 8 September 2021, permission to appeal was granted. On or around 13 September 2021, Mr Clayton called the intermediary and reminded her of their earlier conversation, told her that permission to appeal had been granted, and asked if she would consider forwarding an email to ALC to see if it might wish to intervene.

On 14 September 2021, Mr Clayton sent the intermediary an unredacted copy of the appellant's skeleton argument seeking permission to appeal, and the order granting permission to appeal.

On 5 October 2021, solicitors for ALC alerted the parties to the appeal that it had received the documentation from a member of ALC, and that they had discovered the member was not a representative of a party in the case and did not have permission to share the documentation. The pleadings had been deleted and not retained in any form. The matter was brought to the court's attention, and the intermediary identified herself as the person who provided the documents to ALC. She offered her unreserved apology for breach of confidence which she said was unintentional and confirmed she had not read the documents herself.

Following this, Mr Clayton provided the court with his Note setting out a chronology, explanation, and apology. Mr Clayton fully accepted responsibility for the issue and said that "at all times he genuinely believed that he was able to consult a professional legal adviser about these matters" [18]. In response, Mrs Griffith's solicitors wrote to the court drawing attention to FPR 12.73 and expressing concern about Mr Clayton's actions.

This hearing

The main purpose of the hearing was to determine what if any action should be taken in respect of the Disclosure. No contempt application had been made by a party, so the court on its own initiative had to consider whether to proceed against the defendant in contempt proceedings, as provided for under CPR 81.6(1).

Mr Clayton said that his sole purpose in sending the documents was to allow consideration from an expert professional standpoint whether the case might be suitable for an intervention by ALC to assist on the issue of children's rights and the impact of identification on the internet. The documents were sent with an express request for confidentiality. The Disclosure was made in good faith, in the belief that the limited disclosure of information for this purpose was in the interests of justice and would be permitted. He did not at the time apply his mind to s.12 AJA or the relevant provisions of the FPR, and with hindsight accepted he should have done so.

Counsel for Mr Clayton raised four points for the court to consider. Firstly, the nature and extent of the disclosure. It was not to the public at large or to any section of the public. It was a disclosure in confidence made by a lawyer in the case to family lawyers. Only a limited number of lawyers read the documents, which were deleted once read. Secondly, the purpose of the disclosure was legitimate, and litigation related. Thirdly, Mr Clayton did not intent to interfere with the administration of justice. Fourthly, the Disclosure did not interfere with the administration of justice or threaten to do so.

Conclusion

S.12(1) AJA provides that:-

"The publication of information relating to proceedings before any court sitting in private shall not of itself be contempt of court except ….

(a) where the proceedings …

(ii) are brought under the Children Act 1989 …".

Whilst there was doubt as to whether the disclosure of the order granting permission to appeal contained information within s.12(1), the skeleton argument plainly did.

It was not argued that s.12(4) of the AJA applied to the Disclosure. The Disclosure was not authorised by rules of court. Nor did the Disclosure fall within the specified categories of FPR 12.73 or 12.75. [28-29]

FPR 12.73(1)(iii) allows disclosure to a "professional legal adviser", but this only extends to someone representing an existing party: see Re B (A Child) (Disclosure of Evidence in Care Proceedings) [2012] 1 FLR 142.

FPR 12.75(1)(a) authorises the legal representative of a party to communicate information relating to the proceedings "to any person where necessary to enable that party … by confidential discussion, to obtain support, advice, or assistance in the conduct of the proceedings."  This was not considered to apply to a disclosure made in an attempt to procure a supportive intervention from a third party.

A contempt of court "may have been committed" by Mr Clayton when he disclosed the skeleton argument to ALC. Contempt proceedings under CPR 81.6(1) were not considered necessary or proportionate. The court emphasised that notwithstanding this decision, the matter was not trivial, and lawyers involved in cases of this kind have a professional responsibility to inform themselves of the rules and to abide by them. The Court also pointed to the case of R (Counsel General for Wales) v The Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181 in which the Master of the Rolls reiterated that strict adherence to the terms of the embargo on draft judgments is of great importance.
 
Case summary by Kate Pearson, Barrister, St John's Chambers

For full case, please see BAILII