Doctor A & Ors v Ward & Anor [2010] EWHC 538 (Fam)

[2010] EWHC 538 (Fam)Case No FD07C01234
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 15 March 2010
Before
LORD JUSTICE MUNBY(sitting as a Judge of the Family Division)
Between
(1) DOCTOR AClaimants(2) DOCTOR BClaimant(3) CAMBRIDGE UNIVERSITY HOSPITALS NHS FOUNDATION TRUSTClaimant(4) CAMBRIDGESHIRE PRIMARY CARE TRUSTClaimant(5) CAMBRIDGESHIRE COUNTY COUNCILClaimant(1) VICTORIA WARDRespondents(2) JAKE WARDRespondent
In the matter of WILLIAM WARD (dob 21.4.2005)
No hearing : matter dealt with on paper
Judgment
[1]I handed down judgment in this matter on 8 January 2010: Re Ward (A Child), Doctor A and ors v Ward and anor [2010] EWHC 16 (Fam). On 9 February 2010 I handed down a further judgment explaining why I was refusing the application which Dr A and Dr B had made (theirs was the only such application) seeking permission to appeal: Re Ward (A Child), Doctor A and ors v Ward and anor (No 2) [2010] EWHC 205 (Fam).[2]On 15 February 2010 I was informed by their counsel, Mr Adam Clemens, that Dr A and Dr B would not be seeking permission to appeal from the Court of Appeal.[3]The litigation is thus at an end.[4]In accordance with paragraph 3 of the order I had made on 9 February 2010 (see Re Ward (A Child), Doctor A and ors v Ward and anor (No 2) [2010] EWHC 205 (Fam) at para [20]), the last of the contra mundum orders therefore ceased to have effect after 23 February 2010.[5]There are, accordingly, no remaining restrictions on the identification of either Dr A and Dr B (or the other expert witnesses) or the social workers. Certain restrictions on the identification of the treating clinicians continue by virtue of paragraphs 2 and 3 of the order that I made on 20 January 2010 to give effect to my judgment.[6]Paragraph 1 of that order (see Re Ward (A Child), Doctor A and ors v Ward and anor [2010] EWHC 16 (Fam) at paras [135]-[142]) provided as follows:
“Subject to paragraph 7 of this Order” – which, I interpolate, is now spent – “the Respondents [Mr and Mrs Ward] shall notwithstanding the provisions of section 12 of the Administration of Justice Act 1960 be at liberty to publish any of the documents and any of the information contained in any of the documents concerned with or relating to the child protection proceedings including the care proceedings in the Cambridge County Court (together “the Proceedings”) taken by the Fifth Claimant in respect of William Ward including (for the avoidance of doubt) the names of any of the persons named in the said documents.”
[7]Paragraphs 2 and 3 of the order contained the in personam order against Mr and Mrs Ward required to give effect to what I had said in my judgment at paras [175]-[178] in relation to the identification of the treating clinicians.[8]As will be recalled (see Re Ward (A Child), Doctor A and ors v Ward and anor [2010] EWHC 16 (Fam) at para [19]), although the BBC had been involved in earlier stages of the litigation it had largely disengaged by the time of the hearing before me in June 2009. And it was therefore not involved in the drafting of the order I made on 20 January 2010. Moreover, Mr and Mrs Ward were by then acting in person, so I did not have the benefit of any technical submissions from their perspective to assist me when formulating the order.[9]On 28 January 2010 the BBC’s solicitor, Mr David Attfield, informed me that he wished to make representations about paragraph 1 of the order because, he suggested, it did not, as drafted, fully give effect to my intention as he understood it from my judgment.[10]He followed this up with a letter dated 1 February 2010 in which he suggested that paragraph 1 of the order should be amended to read as follows (I show the altered wording underlined):
“Subject to paragraph 7 of this Order and notwithstanding the provisions of section 12 of the Administration of Justice Act 1960 it shall not be a contempt to publish any of the documents and any of the information contained in any of the documents concerned with or relating to the child protection proceedings including the care proceedings in the Cambridge County Court (together “the Proceedings”) taken by the Fifth Claimant in respect of William Ward including (for the avoidance of doubt) the names of any of the persons named in the said documents”
[11]On 3 February 2010 my Clerk replied to Mr Attfield as follows:
“Lord Justice Munby … asks me to point out that the document enclosed with your letter is not the draft Order. It is in fact the final text of the approved Order as it was sent to the parties by the Judge on 20 January 2010. It was sent the same day to the Associate for sealing and, the Judge assumes, has now been sealed. You refer to paragraphs 135-143 of the judgment, where the Judge explained why he was ‘disapplying’ section 12. However, as he made clear in paragraph 137, and again in paragraph 140 (see, for example, the words “if they wish”), the decision as to whether the documents should be put into the public domain is one for Mr and Mrs Ward. It was for this reason that paragraph 1 of the Order was expressed as it was, specifically in terms of giving “the Respondents” liberty, etc. The Judge can see that (subject of course to any observations Mr and Mrs Ward may wish to make) there might be advantage in the Order spelling out explicitly that it will not be a contempt of court for anyone to publish documents supplied to them by Mr and Mrs Ward with a view to such publication. That approach, he is inclined to think, is not merely consistent with but would more accurately give effect to his judgment. An amendment along these lines would accordingly be permissible under the ‘slip rule’ notwithstanding that the order has been sealed. However, the form of Order you are proposing goes significantly beyond this and would take the decision to publish entirely out of Mr and Mrs Ward’s hands. Such an approach is in fact, as the Judge sees it, inconsistent with the judgment. In the circumstances the Judge is not prepared to make the amendment you suggest. But he will be willing to consider any other proposal you may wish to put forward so long as it is consistent with the judgment. Copies of this letter are being sent (also by email) to the other parties.”
Copies of this letter are being sent (also by email) to the other parties.”[12]Mr Attfield’s response was to suggest that paragraph 1 be amended under the ‘slip rule’ by the addition at the end of the words:
“Any consequent further publication of such documents or information by third parties shall not be a contempt of court.”
[13]Mr Clemens and Miss Connolly replied, giving reasons for their contention that this wording was still too wide and did not answer or meet the concerns expressed in the letter of 3 February 2010.[14]On 25 February 2010 Mr Attfield responded, indicating that the additional wording he now proposed was as follows and confirming that Mr and Mrs Ward were in agreement:
“Further it will not be a contempt of court for any person to publish any documents or information referred to above which have or has been provided by the Respondents for the purpose of such publication.”
[15]Mr Clemens and Miss Connolly continued to express misgivings that even this form of wording remained too wide.[16]None of the views subsequently expressed by anyone gives me any reason to depart from what was said in my letter of 3 February 2010. The problem is to identify the appropriate form of words. With all respect to him, none of Mr Attfield’s various drafts seems to me to be entirely appropriate, though in saying this I appreciate that he was probably not assisted by what I can now see was the rather unhelpful way in which the third paragraph of my letter had been expressed.[17]In addition to the various points made in the letter of 3 February 2010 there are two further points which, in my judgment, need to be borne in mind: i) First, paragraph 1 of the order was carefully, and so far as I was concerned deliberately, drafted not in terms of saying that something was or was not a contempt of court but more narrowly in terms of saying that Mr and Mrs Ward were to be at liberty to do various things “notwithstanding the provisions of section 12 of the Administration of Justice Act 1960”. ii) Second, and this in fact links in with the first point, paragraphs 2 and 3 of the order contain, as I have pointed out, in personam orders imposing certain restrictions upon what Mr and Mrs Ward may publish in relation to the treating clinicians. A third party who, with knowledge of paragraphs 2 and 3 of the order, published documents or information in circumstances prohibited vis-à-vis Mr and Mrs Ward by those paragraphs would, it might be thought, be guilty – and properly guilty – of that form of contempt described in Z Ltd v A-Z and AA-LL [1982] QB 558. The wording proposed by Mr Attfield would seemingly exonerate such a third party from liability and, moreover, to take the extreme example, even in circumstances, however unlikely (and from everything I know of them I find it almost inconceivable), where the third party was being deliberately used by Mr and Mrs Ward to do something on their behalf which they could not do themselves. (That would not in fact enable them to escape liability, for qui facit per alium facit per se; but there is no reason why, in the kind of case I have postulated, the chosen instrument should be able to do so with impunity.)[18]Having considered the various points made by Mr Attfield and by Mr Clemens and Miss Connolly, I have concluded that the amendment to the order of 20 January 2010 which can properly and appropriately be made under the ‘slip rule’ is the insertion at the end of the following words:
“Provided for the avoidance of doubt but without prejudice to the effect of paragraphs 2 and 3 of this Order that notwithstanding the provisions of section 12 of the Administration of Justice Act 1960 any person other than the Respondents shall also be at liberty to publish any such documents and information but only if such documents or information have or has been provided to such person by the Respondents for the express purpose of such publication.”
[19]That, as I have said, is a form of amendment which, in my judgment, can properly be made under the ‘slip rule’. Further than that, however, it would not, I think, be proper to go under the ‘slip rule’. If any wider form of proviso or modification to the order of 20 January 2010 is sought, whether by the BBC or by anyone else, there must, as it seems to me, be a formal application to the court setting out some other proper basis for what is sought.[20]I shall accordingly make an order in the following terms:
“Upon the application by the British Broadcasting Corporation for the amendment under the ‘slip rule’ of paragraph 1 of the order made herein on 20 January 2010 by Lord Justice Munby (sitting as a Judge of the Family Division) And upon reading (1) the judgment handed down on 8 January 2010 and (2) the order made on 20 January 2010 IT IS ORDERED that the said Order of 20 January 2010 be amended pursuant to FPR 1991 rule 1.3 and RSC 1965 Order 20 rule 11 by the insertion at the end of paragraph 1 of the following additional words: “Provided for the avoidance of doubt but without prejudice to the effect of paragraphs 2 and 3 of this Order that notwithstanding the provisions of section 12 of the Administration of Justice Act 1960 any person other than the Respondents shall also be at liberty to publish any such documents and information but only if such documents or information have or has been provided to such person by the Respondents for the express purpose of such publication.””
The order will be dated 15 March 2010. “Provided for the avoidance of doubt but without prejudice to the effect of paragraphs 2 and 3 of this Order that notwithstanding the provisions of section 12 of the Administration of Justice Act 1960 any person other than the Respondents shall also be at liberty to publish any such documents and information but only if such documents or information have or has been provided to such person by the Respondents for the express purpose of such publication.””