England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BROMLEY COUNTY COURT
HER HONOUR JUDGE ATKINSON
BR13D00116

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/02/2015

Lady Justice Black:

1. In 1995, the appellant (hereafter "the husband") and the respondent (hereafter "the wife") married. They have two children, now aged 13 and 6. They separated in November 2012 when the wife left the matrimonial home with the children. Since then there has been a considerable amount of litigation between them including divorce proceedings in which each has petitioned against the other on the basis of unreasonable behaviour.
2. The present appeal arises from case management directions given by Her Honour Judge Atkinson on 26 March 2014. The husband wanted the production of certain material which he considered would support the allegations of behaviour that he had made in his divorce petition. The judge refused his application.
3. The material which the husband sought fell into three parts. He wanted directions that Gumtree and Yahoo provide him with particular information; he has not been given permission to challenge the judge's refusal to order this on appeal so it is final. He also wanted a direction addressed to Wiltshire Police for a witness statement to be supplied to him. He has been given permission to appeal against the judge's refusal to make that order.
4. Before I embark on a consideration of the appeal, I need to set the scene a little more.
5. The husband issued his petition for divorce in January 2013. His allegations of unreasonable behaviour included that the wife engaged in "multiple lesbian relationships for money and kind" and he named 13 women who were said to have been involved. The appeal revolves around one of these women in particular ("the wife's friend").
6. In May 2013, the wife filed an answer in which she denied all the allegations made by the husband. She also filed a cross-petition in which she made diverse complaints against the husband, including that he had been controlling and violent. Amongst the allegations of violence was an allegation that in August 2012 he hit her with a metal rod and broke a bone in her leg.
7. Judge Atkinson had to consider the August 2012 incident in the context of proceedings in relation to the two children. In a judgment handed down on 20 November 2013, she made a finding that the husband hit the wife with a metal toilet roll holder causing a fracture of her leg. The husband sought unsuccessfully to appeal against that and against the judge's order of 27 January 2014 permitting the wife to make use of the judgment in the divorce proceedings.
8. It seems that the husband thereafter made an application for directions in the divorce proceedings. There is reference in the papers to an "application notice" but there does not seem to be a copy of it in the bundle, although there is a handwritten document which lists various directions and which might be an extract from it (see I 16). One of the directions sought was a direction that the wife's friend's statement of 5 August 2012 to Wiltshire Police complaining of an act of criminal damage by the husband be made available to the husband.
9. The context for this appears to be that the husband made a request to the police for access to personal data under the Data Protection Act 1998. It seems that the police provided him with a copy of their record of an "occurrence" on 5 August 2012. The record sets out what appears to be a complaint by someone described only as "IP" of criminal damage to her Sky dish, from which the wires had been pulled out. The allegation was that the husband had done this. Log entries include the following, which may be information supplied by IP:

i) "He is jealous of his wife seeing IP."

ii) "The offender is said to be homophobic and very jealous/unsatisfied with the new relationship."

iii) "The IP is the new partner of a female named Sharon Lindner who is the estranged wife of a male who I believe is known to you, called John Lindner."

10. The assumption seems to have been made on the basis of this entry that IP is the wife's friend and that she made a statement to the police some time around 5 August 2012. It seems that the husband requested a copy of any statement from the police and they declined to supply it, saying that he would need a court order. This was, of course, what the husband was seeking from Judge Atkinson. He did not serve the police with notice of the application.
11. The judge did not consider that the statement would assist the husband in establishing what he alleged in his petition. She considered that his allegation was not simply that the wife had a relationship with another woman (which was what the husband wanted to establish via the statement) but that she had a string of lesbian lovers and that she offered herself to other women, sometimes on a commercial basis.
12. At the final hearing of the divorce proceedings, the husband intends to rely upon what he says are the wife's email communications, which he was able to access on the home computer and which he asserts establish that the wife had multiple lesbian relationships, as well as on adverts, which he says were placed by her, on lesbian websites and on Gumtree. Examples of these are included in the papers for the appeal. But he wishes also to pursue a copy of the police statement on the basis that it will assist him to establish an element of the allegation that he makes and is also relevant in undermining the wife's credit as a witness, she having denied in a statement to the court that she and her friend were lovers.

The legal basis for an order such as the husband wants

13. In his written argument, the husband cited section 34 Senior Courts Act 1981 and section 53 County Courts Act 1984 as the provisions conferring jurisdiction to make orders for disclosure by third parties. He also submitted that the relevant rule governing applications for such orders is Rule 31.17 of the Civil Procedure Rules 1998 ("CPR").
14. We explained to the husband during the appeal hearing that the starting point in relation to an application made in divorce proceedings should in fact be the Family Procedure Rules 2010 ("FPR") which apply to family proceedings in the relevant court (Rule 2.1). The term "family proceedings" is defined in section 32 Matrimonial and Family Proceedings Act 1984. It includes divorce proceedings. Rule 2.1(2) CPR provides that the CPR do not apply to family proceedings except to the extent that they are applied by another enactment. There is no such enactment that is relevant here.
15. Part 21 FPR contains miscellaneous rules about disclosure and inspection of documents. It is important to recognise that "disclosure" has a particular meaning for the purposes of this rule and that it is rather more restricted than many people think. A person "discloses" a document by stating that it exists or has existed, Rule 21.1(1). The next stage is "inspection" which is when a party is permitted to inspect a document disclosed by another person, Rule 21.1(2).
16. The husband's application to Judge Atkinson was an application for disclosure against a "person" who was not a party to the proceedings, namely the police. Such an application is covered by Rule 21.2. It may be made without notice and must be supported by evidence and the court may make an order "only where disclosure is necessary in order to dispose fairly of the proceedings or to save costs". An order for the disclosure of a document or documents is, of course, only the first step. Part 21 provides that such an order must require the respondent (the non-party) to specify any of the documents in respect of which the respondent claims a right or duty to withhold inspection (Rule 21.2(4)) and Rule 21.3 contains provision for a person who wishes to withhold disclosure or inspection of a document to bring that matter before the court.
17. We took time during the hearing to go through the relevant provisions of Part 21 with the husband. He was not too disadvantaged by having approached the matter on the basis that Rule 31.17 CPR applied as disclosure has the same meaning in the CPR as in the FPR and Rule 31.17 CPR and Rule 21.2 FPR are in similar, although not precisely the same, terms. In particular, Rule 31.17 CPR also provides that the court may make the order only where disclosure is necessary in order to dispose fairly of the claim or to save costs.
18. The notes in the White Book (page 996) observe that the court has a wide discretion when determining whether disclosure is necessary in order to dispose fairly of the claim or to save costs. They also observe that ordering disclosure against non-parties is the exception rather than the rule and that the jurisdiction should be exercised with caution, Frankson v Home Office [2003] EWCA Civ 655; [2003] 1 WLR 1952 and Re Howglen Ltd [2001] 1 All ER 376 Ch being cited as authority for these two propositions.
19. The husband referred us to Durham County Council v Dunn [2012] EWCA Civ 1654. The Court of Appeal there examined the duty, in respect of disclosure and inspection, of Durham County Council, which was the defendant to a claim for damages by a former resident of a young people's centre which was the responsibility of the Council. It was not concerned with the question of disclosure by a non-party or inspection in that context. The husband cited §23 of the judgment of Kay LJ in his written argument to us. It reads:

"23. What does that approach require? First, obligations in relation to disclosure and inspection arise only when the relevance test is satisfied. Relevance can include "train of inquiry" points which are not merely fishing expeditions. This is a matter of fact, degree and proportionality. Secondly, if the relevance test is satisfied, it is for the party or person in possession of the document or who would be adversely affected by its disclosure or inspection to assert exemption from disclosure or inspection. Thirdly, any ensuing dispute falls to be determined ultimately by a balancing exercise, having regard to the fair trial rights of the party seeking disclosure or inspection and the privacy or confidentiality rights of the other party and any person whose rights may require protection. It will generally involve a consideration of competing ECHR rights. Fourthly, the denial of disclosure or inspection is limited to circumstances where such denial is strictly necessary. Fifthly, in some cases the balance may need to be struck by a limited or restricted order which respects a protected interest by such things as redaction, confidentiality rings, anonymity in the proceedings or other such order. Again, the limitation or restriction must satisfy the test of strict necessity."

20. He also relied upon what Munby LJ said in the same case. These passages have, however, got limited, if any, relevance to the present rather different issue in respect of disclosure by a non-party. It can be seen, for example, that an aspect of the approach set out in §23 is that disclosure or inspection is only to be denied when strictly necessary whereas, in contrast, under CPR 3.17 and FPR 21.2, disclosure is only be ordered when necessary. Reliance upon the Durham case canot therefore advance the husband's appeal at all.

The husband's appeal

21. On the facts of this case, the husband's failure to serve notice of his application on the police seriously limited the scope of what he could achieve by it. He was entitled to apply without notice to the police for an order for disclosure and I would be prepared to accept that his provision of the material he had obtained by way of his "access to personal data" request counted as evidence in support of such an application. But an order for disclosure was only a small part of what he wanted. It would have established definitively whether a statement from the wife's friend existed. But what the husband wanted was a copy of it to use in the proceedings. That he could not obtain, in my view, without first involving the police in the process. They may well have asserted that they had a right or duty to withhold inspection and further court proceedings may have followed in order to resolve any dispute about this. Furthermore, even if a copy of the statement had been forthcoming, unless the maker of it was available to give evidence to the court at the final hearing, it would have been no more than hearsay evidence.
22. I return to the question of whether the judge should have enabled the husband at least to embark on this path by making an order for disclosure. I remind myself that she could only have done so if it was "necessary in order to dispose fairly of the proceedings or to save costs", Rule 21.2(3).
23. In another context, that of permission to instruct an expert in care proceedings, the Court of Appeal in Re H – L (Expert Evidence: Test for Permission) [2013] EWCA Civ 655 [2013] 2 FLR 1434 considered the proper approach to determining whether expert evidence was "necessary to assist the court to resolve the proceedings". "Necessary" said Sir James Munby P, "means necessary". It has "a meaning lying somewhere between 'indispensable' on the one hand and 'useful', 'reasonable' or 'desirable' on the other hand", having "the connotation of the imperative, what is demanded rather than what is merely optional or reasonable or desirable". It is useful to have this explanation of what is meant by "necessary" in mind in the present context too.
24. The judge did not think that any order was justified. She did not think it would assist the husband to establish the case he had pleaded. The husband says that this was wrong because the statement would demonstrate that the wife was untruthful when she said that she and her friend were not lovers. He says that "[t]he sustained behaviour" between herself and her friend is "a crucial historical and evidential component supporting" his case of conduct on the wife's part leading to the breakdown of the marriage.
25. I will assume for a moment that the statement goes to an issue in the case. This could be said to be so because, if it came up to the husband's expectations, it would establish one small part of his case, namely that the wife had a relationship (but not in any way a commercial relationship) with this particular woman who is named in his petition. I will assume also that it might be material to the wife's credibility. However, that is not an end of the matter because there is still the Rule 21.2(3) hurdle to be got over.
26. We can infer from the judge's judgment that she thought that disclosure was not necessary in order to dispose fairly of the proceedings or to save costs. She made this assessment against the backdrop of what she described as "the voluminous documentation" available already, including advertisements and emails potentially going much more directly to the husband's allegation. The issue in relation to that material was the extent to which it had, in fact, been generated by the wife; the parties would give their evidence on that and the trial judge would decide on whose evidence to accept. If the husband's case in relation to that material was not accepted, proving that the wife and her friend were lovers would not be sufficient to establish the specific case asserted by the husband which was not based upon one extra-marital sexual relationship but upon "multiple lesbian relationships for money and kind". In these circumstances, in my view, the judge was entitled to refuse the order that the husband sought.
27. In so doing, she could also have had regard to the other material already available to the husband to deploy at the final hearing. In addition to the advertisements and emails, this included the material he had already obtained from the police which could be put to the wife in cross-examination, as could her statement of 1 February 2013 if the husband continues to think that it contains a concession by the wife of a lesbian relationship with her friend; for my part, I am not sure whether it does.
28. In Re H-L (supra), the President emphasised that there are very limited grounds on which the Court of Appeal can properly interfere with case management decisions. I would class Judge Atkinson's decision in this case as a case management decision and approach it accordingly. Just as the Court of Appeal should be very slow to interfere with a judge's assessment of the necessity or otherwise of an expert witness (as McFarlane LJ said at §28 ibid), so should we be very slow to interfere with a case management decision of the type in this case.
29. I would invite attention to the overriding objective set out at the very start of the FPR. Dealing with a case justly, as the court must obviously do, includes, for example, dealing with it expeditiously and in ways which are proportionate to the nature, importance and complexity of the issues, as well as saving expense. If Judge Atkinson had made an order against the police for disclosure, it can be foreseen that it might well have resulted in further litigation whilst the court considered and determined objections raised by the police to permitting the husband to have sight of any statement which existed. In some cases, it may be necessary to go down that road but in this case, in my judgment it was not. There was plenty of material already available to the parties and the court for the purposes of the divorce proceedings.
30. I would therefore dismiss the appeal.
31. I cannot leave the matter without making two further observations. The first is directed to the parties. More than two years have now elapsed since they separated. They could now be divorced by consent without the need to engage in hurtful, time consuming and distracting litigation over how they behaved during the marriage. I encourage them to take this course in their own interests and those of their children.
32. The second observation is in no way a criticism of the husband who presented his case to us courteously and as comprehensively as he could. Nevertheless, the fact that he was not represented meant that he had approached it on a mistaken basis. The task that would normally have been fulfilled by the parties' legal representatives, of finding relevant documents amongst the material presented, and researching the law and its application to the facts of the case, had to be done by the judges of the Court of Appeal instead. This is not a satisfactory state of affairs as the time taken to attend to this is considerable and cannot be spared in what is already a very busy court.

Lady Justice King

33. I agree.

Lord Justice Aikens

34. I agree with the judgment of Black LJ. I also wish, wholeheartedly, to endorse her observation at [32]. The procedural issue with which this appeal is concerned is technical and unusual. The husband could not be expected to have mastered this area of the law in order to be able to present his appeal in a way that assisted the court. The wife was neither present nor represented. Yet again, the court was without any legal assistance and had to spend time researching the law for itself then attempting to apply it to the relevant facts in order to arrive at the correct legal answer. To do the latter exercise meant that the court itself had to trawl through a large amount of documents in the file. All this involves an expensive use of judicial time, which is in short supply as it is. Money may have been saved from the legal aid funds, but an equal amount of expense, if not more, has been incurred in terms of the costs of judges' and court time. The result is that there is, in fact, no economy at all. Worse, this way of dealing with cases runs the risk that a correct result will not be reached because the court does not have the legal assistance of counsel that it should have and the court has no other legal assistance available to it.