Gelber v Griffin [2006] EWHC 3666 (Fam)

Case No FD06P02257[2006] EWHC 3666 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Venue Royal Courts of JusticeDate Wednesday, 22nd November, 2006
Strand
London WC2A 2LL
Before
HIS HONOUR JUDGE DAVID PEARL(sitting as a Judge of the High Court)
Between
GELBER(Applicant)GRIFFIN(Respondent)
Tape transcription by:John Larking European Verbatim Reporters,(Verbatim Reporters and Tape Transcribers)Suite 91, Temple Chambers, 3-7 Temple Avenue,London EC4Y OHPTel: 020 7404 7464 Fax No: 020 7404 7443
MR BURROWS appeared for Applicant.The Respondent appeared in person. for in person
J U D G M E N T

JUDGE PEARL:

[1]This is a matter that has come before me by way of a notice to show cause brought by Mr Gelber, who has been involved in proceedings in these courts. The respondent is Miss Griffin. It is said that a number of documents ("Form E") were disclosed to an organisation called Child Support Solutions Limited by Miss Griffin without permission having been granted to her for disclosure by this court.[2]I have been referred, amongst other papers, to the authority of Clibbery v Allan [2002] EWCA Civ 45. That is a case where other earlier cases were cited, most important of which is a decision of Hobhouse J in Prudential Assurance v Fountain Page [1991] 1 WLR 756. Hobhouse J in that earlier case said:
"…it is in my judgment a duty that is owed to the court and which can be enforced by the court…" 3. "
Breach of the duty amounts to a contempt of court, which may be trivial or serious depending on the circumstances. The court has the power wholly or partially to release the recipient from the duty, or undertaking, and to permit use to be made of the documents nevertheless."[3]My understanding on the evidence is that Miss Griffin disclosed Form E to Child Support Solutions Limited, a company operating out of Birmingham, in the context of matters that were going on appeal to the Child Support and Social Security Tribunal from a decision taken by the Child Support Agency.[4]It is not Mr Burrows' case that the disclosure was to the tribunal itself. It was conceded by Miss Griffin that the documents were disclosed to CSS Limited. Does disclosure amount to contempt? It is clear, as accepted by Miss Griffin, that permission should have been obtained from the court. She has explained that the reason why she did not proceed with such an application was because of the expense involved in bringing a contested application to the court. Nevertheless, the documents were disclosed.[5]I have to decide whether the disclosure was in contravention of the Family Proceedings Rules. I have been taken to Rule 10.20A, which says:
"This rule applies to proceedings held in private to which these Rules apply where the proceedings… (b) are brought under the Act of 1989; or (c) otherwise relate wholly or mainly to the maintenance or upbringing of a minor."
This applies in this case. Rule 10.20A(2) states: 7. "For the purposes of the law relating to contempt of court, information relating to the proceedings (whether or not contained in a document filed with the court) may [emphasis added] be communicated… (c). where the communication is to… (ii) the legal representative of a party, (iii) a professional legal adviser."[6]I have not been given detailed information about CSS, but I do not believe that CSS falls within the definition of "the legal representative"; namely, a barrister or solicitor, solicitor's employee or otherwise authorised litigator who has been instructed to act for a party in relation to the proceedings (Rule 10.20A(5)). "The proceedings" I take to refer to the family proceedings. CSS does not fall into that category

Rule 10.20A(2) states:

[7]Neither does it fall into the category of "a professional legal adviser" for the same reason. That is defined as "a barrister or a solicitor, solicitor's employee or otherwise authorised litigator who is providing advice to a party but is not instructed to represent that party in the proceedings" (Rule 10.20A(5). CSS is not a barrister or solicitor, solicitor's employee or other authorised litigator who is providing advice to a party in the proceedings.[8]Rule 10(20)A(3) provides a list of situations where communication of certain specified information may be communicated without the permission of the court to a person listed for certain specified purposes. The first of these is in relation to any information relating to the proceedings which may be disclosed without the permission of the court by a party to a lay adviser or a McKenzie friend, "to enable the party to obtain advice or assistance in relation to the proceedings".[9]I have heard submissions from Mr Burrows on the appropriate interpretation of this Rule. He concedes that CSS could well fall within the definition of a "lay adviser", and I have to say that I think that must be right, given that it specifically says, "To a lay adviser or a McKenzie friend". If a McKenzie friend is within the definition, then a lay adviser such as the CAB for example, who have a more specialised knowledge, must surely fall within that provision as well. Insofar as it is necessary, I say that the CSS falls within that definition.[10]However, the purpose is solely to enable the party to obtain advice or assistance in relation to the proceedings. My understanding of the words "the proceedings" is that it relates back to the matter before this court and not to matters before any other tribunal; in this case, of course, the tribunal on appeal from a decision taken by the CSA.[11]In many cases, permission may be readily granted. If permission has not been granted, then there is a contempt of court. It may be that CSS has obtained this type of information in many cases. It is my opinion that if such information has been obtained without permission of the court, then there has been a contempt of court. Such an unauthorised disclosure is contrary to the Rule 10(20)A and contrary to the approach by the courts as illustrated by the judgements of the President and Thorpe LJ in Clibbery v Allan [2002] EWCA Civ 45 and Hobhouse J in Prudential Assurance Co Limited v Fountain Page Limited & Another [1991] 1 WLR 756.[12]I have concluded that there has been a breach of Rule 10.20A and that the Miss Griffin is in contempt.[13]The question then arises as to how to deal with that breach. Mr Burrows, as I understand it, does not wish any response from me other than to express my disapproval. MR BURROWS: My Lord, I shall address you on costs, if I may, but so far as the disposal is concerned I do ask you only to say that. JUDGE PEARL: That is all I do say and that is certainly what I would have said even if you had asked me to go beyond it. Miss Griffin, I intend to make no order in relation to the breach of the Rule and the contempt. There are rules, and the rules are there for a purpose. They are there to protect not only the court, but to protect individuals who are involved in proceedings before the court, and to protect your child. I make no order on the breach. (Discussion re costs)

Cited in 1 later judgment