England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
(In Private)

		Royal Courts of Justice Strand, London, WC2A 2LL
		5 September 2008

Mr Justice Munby :

1. At the end of the hearing on 29 July 2008 I made – to be more precise, I orally pronounced – a consent order in terms which I understood to be agreed in all respects by the parties. An issue has now arisen as to whether the father did in fact consent to one provision in the order. And the raising of that issue has, unhappily, led to delay in the sealing of the order.
2. This dispute is most unfortunate, but I think that in the circumstances, and lest the matter ever has to be revisited on some future occasion, it is desirable that I place on record exactly what happened, just as I should explain why it is that, in my judgment, the father is bound by and cannot now resile from the consent that, to all appearances, he gave on 29 July 2008 and why it is that, as I now direct, the order should be sealed in the terms referred to below.

The background

3. These were private law proceedings under section 8 of the Children Act 1989 which, as the culmination of some years of litigation, came on for final hearing before me on Monday 21 July 2008. The parties sought time to discuss matters with a view, if not to reaching overall agreement, at least to a narrowing of the issues. I was happy to afford them that facility, even though, in the event the process spread over many days – days, I must emphasise, that were very well spent.
4. By the end of the fifth day – Friday 25 July 2008 – the parties, I was told, were very close to final agreement on all, or almost all, of the matters in issue between them in the section 8 proceedings (there are also proceedings brought by the mother against the father under section 15 of and Schedule 1 to the 1989 Act with which this judgment is not concerned).
5. The hearing before me had been fixed for five days, and there were other matters in my list which I had to deal with on Monday 28 July 2008, but I exhorted the parties to continue the negotiations on the Monday with a view to putting an agreed (or substantially agreed) order before on the Tuesday.

The hearing on 29 July 2008

6. The parries came back in front of me at approximately 3.45 on the afternoon of Tuesday 29 July 2008.
7. For the purposes of preparing this judgment I have listened to the CD-R which contains the digitally recorded proceedings that took place before me that afternoon. The recording starts at 14.18.54, when I entered court to deal with another case, at which point time for the purpose of the digital recording starts to run. The digital timer, which at 14.18.54 was showing 00.00.00, shows that I started to deal with this case at 1.25.15, that is, according to what I will call digital clock time, at 15.44.09. It ended at 2.35.40, that is, according to digital clock time, at 16.54.34. The digital clock was very slightly behind the clock in the court room, for I am recorded at digital clock time 16.19.41 (= 2.0.47) as saying that the time is 4.22. (The discrepancy is, of course, completely irrelevant save for the purpose of 'marrying up' the digital timer and my recorded reference to 4.22pm.)
8. There is no written transcript of the proceedings, so where it is necessary to be precise, I will refer to the time as shown on the digital timer; the actual digital clock time, as will be appreciated, can be calculated by adding 14.18.54 to this figure.
9. I should make clear that both the father and the mother were present in court in person throughout the hearing on 29 July 2008.
10. A draft order was handed to my clerk (1.25.18) and I was asked to read it on the basis that there was only one unresolved issue. The document ran to 16 pages of typed text, to which certain manuscript alterations had been made.
11. So far as is material for present purposes I should note that at the top of the first page there appeared the words:

"DRAFT This draft is agreed in principle but may be subject to amendment limited to the purposes of clarification and commencement and subject to the hold over point raised on behalf of the mother."

I shall refer to this for convenience as the rubric. Pages 2-5 of the document set out various recitals. On page 5 there appeared the words "IT IS ORDERED BY CONSENT" and there then followed the operative parts of the order in numbered paragraphs. The final paragraph, originally numbered 27 but renumbered 28 in manuscript and which is the provision now in issue, read as follows, the words I have italicised having been added in manuscript and the words underlined having been crossed out:

"All previous orders in these proceedings in so far as they relate to residence and contact, prohibited steps and specific issue orders, in respect of N, and all previous undertakings in these proceedings, and all previous orders in the Family Law Act 1996 proceedings numbered BT04F00715 and FD04F01125 are hereby discharged and the father's application for a residence order are discharged."

It is the second group of italicised words which create the problem with which this judgment is concerned.

12. I came into court (1.26.50). I was told by the father's counsel, Mr Bogle (1.27.02), that there was only one outstanding point. I repeated, without demur from anyone (1.30.28), that, this apart, everything was agreed. Mr Bogle's response was "just the one matter".
13. That matter – the precise hand-over time on a particular Jewish festival – was then debated in front of me, Mr Bogle repeating during this part of the hearing (1.33.26) that this was the only issue. He also commented (1.48.38) that there had been "a great deal of negotiation over the past few days" and that "everything has been very, very carefully worked out, down to … the last practically 5, 15 minutes", adding (1.49.30) that, this point apart, the "parties are ad idem".
14. There was in fact no need for me to rule on the one point which had been in issue because in due course Mr Bogle was able to tell me (1.52.11) that the parties had arrived at a "solution", adding a little later (1.52.50) "there we have it, My Lord". Some discussion about the precise drafting of this provision then followed and that was soon agreed.
15. I then said (1.55.11) "Now is that everything?" and Mr Bogle said "It is, My Lord". There was no dissent from anyone.
16. I was then taken through the agreed draft order, Miss Hudson pointing out all the manuscript amendments which were of substance, as opposed to those which were merely typographical. In the course of this exercise Miss Hudson drew specific attention to the manuscript addition to the final paragraph, providing, as she said (1.58.30), for the father's application for a residence order to be "discharged". Mr Bogle then explained (1.59.12) the insertion in the same paragraph of the reference to FD04F01125, but without saying anything to cast the slightest doubt about the propriety of the reference to the discharge of the father's application for a residence order.
17. That was the last point on the draft. I then said (1.59.40) "Good. Very well. Well – congratulations to all concerned" before referring to the "very desirable outcome". I asked Mr Bogle – he having been nominated for the task by Miss Hudson – to email me a clean version with all the "typos" corrected (2.00.11). I went on to say (2.00.33), "I will make the order here and now in the terms of this document and on the basis that the final, definitive, text of the order which I hereby pronounce at 4.22 pm on the 29^th of July 2008 will be in the terms of the document which you will be emailing to me tomorrow." Mr Bogle responded, "Yes". I continued (2.00.56) "But so far as I am concerned, the parties have consented to this order. It seems to me the terms of the order are entirely appropriate and I endorse them, and I have made the order."
18. There then followed a discussion about when I would be handing down the judgments on the other aspects of the litigation, followed by a discussion of an application for disclosure of documents that the father wished to make. During the course of this Miss Hudson referred, without challenge (2.15.33), to "this document, this agreed order" A little later (2.19.30) Miss Hudson raised the question of whether the order was subject to the rubric. I responded by saying (2.19.38) that that point had now "gone" and explaining why. I concluded by saying (2.20.35) that "the qualification which previously attached to this discussion has gone". No-one dissented from that proposition. Following a discussion about costs I suggested (2.30.35) two very slight formal amendments to the paragraph in the order which reserved the matter to me. That was agreed.
19. Miss Hudson suggested (2.30.50) that the parties should sign the order, a proposition to which Mr Bogle immediately assented. I said (2.30.54) that that would be "highly desirable", adding "and cross off the bit at the top of the first page". I left it (2.31.42) that once the document was "finalised" the parties would sign it. I made it clear (2.31.55) that I was expecting to receive "tomorrow" both the signed version and what I referred to as "the electronic clean version".
20. In fact the signed document was handed in to me the same afternoon, having been signed by the father, by the mother and, on behalf of the guardian, by Miss Hudson. The rubric had been deleted. The concluding words of the final paragraph had been very slightly changed from the form set out in paragraph [11] above, now reading (the words italicised having been added in manuscript):

"All previous orders in these proceedings in so far as they relate to residence and contact, prohibited steps and specific issue orders, in respect of N, and all previous undertakings in these proceedings, and all previous orders in the Family Law Act 1996 proceedings numbered BT04F00715 and FD04F01125 are hereby discharged and the father's application for a residence order is hereby dismissed."

21. The only change of substance is that the father's application for a residence order is described as being "dismissed" rather than "discharged" – a technically more appropriate choice of word but one which does not change in the slightest the meaning and effect of the paragraph. I should add that, because this was the last paragraph in the order, and because his signature, as it happens, appears first amongst the signatories at the foot of the document, the father's signature appears immediately below the very clear and legible words in manuscript "and the father's application for a residence order is hereby dismissed."

Events following the hearing on 29 July 2008

22. As will be appreciated, I was expecting to receive on Wednesday 30 July 2008 in electronic form a 'clean' copy of the order which the parties had signed the previous day, just as I was expecting the text of the 'clean' copy to be identical to the signed document save only for the correction of any typographical errors. I heard nothing.
23. Having still heard nothing, I arranged for the following email message to be sent on Friday 1 August 2008:

"The Judge is concerned that he has not yet received the final order in a form which can be sent to the Associate for sealing.

Can the order please be sent as soon as possible TODAY by email to this address."

Later the same day I received from Mr Bogle what was described as the final order, accompanied by an email message that he had "not had final comments from either Mr Holden or Ms Hudson".

24. On 4 August 2008 I sent both counsel the following email which, referring to Mr Bogle's draft asked:

"Could Ms Hudson please confirm that this correctly reproduces the text as signed by the parties."

25. Mr Bogle responded on 8 August 2008 with another email referring to a draft which "incorporates all amendments sent and suggested to me by the parties, save those which suggested any departure of substance." The email continued:

"Counsel for the Guardian, Ms Hudson and my solicitor need to give their final approval (or not) before it is finally ready for sealing."

26. I responded on 11 August 2008 with an email in the following terms:

"The Judge is concerned by the continuing delay in providing a clean copy of this order ready for sealing and, frankly, does not understand what has been going on.

At the end of the hearing the parties agreed the terms of a consent order and signed it, whereupon the Judge pronounced that he was making the order then and there.

The task for counsel – NOT the parties or their solicitors – was to produce a clean text, ready for sealing, precisely in the terms of the document signed by the parties save ONLY for the correction of typographical or similar errors. There was no occasion or need for any input by the parties or solicitors. If the parties wish to alter, add to or amend the order they have already agreed and which the judge has already pronounced, that should be done by a supplemental order which the Judge can then be invited to make.

The Judge accordingly does not understand Mr Bogle's reference to "amendments sent and suggested to me by the parties", which, to repeat, should NOT be included in this order though they may, if the parties wish AND CAN AGREE, be set out in some future order.

Will counsel therefore please send the Judge (by email to this address) without further delay a clean text, ready for sealing, precisely in the terms of the document signed by the parties save ONLY for the correction of typographical or similar errors.

The Judge wishes to point out that the agreement that the text to be sent to him accurately transcribes (save ONLY for the correction of typographical or similar errors) the text as signed by the parties is, so far as he is concerned, a personal and professional responsibility of counsel ALONE. IT is not a matter for approval by either the parties or the solicitors unless counsel wish to involve them in the proof-reading exercise.

The Judge looks forward to receiving the clean text of the order without further delay. It should be accompanied by an explicit statement by Mr Bogle and Ms Hudson that the text is PRECISELY in the terms of the document signed by the parties at court save ONLY for the correction of typographical or similar errors."

The second paragraph of this email was in error in saying that the parties had signed the order before I pronounced it – as will be appreciated from what I have already said, the oral pronouncement of the order preceded the parties' signature to it – but nothing turns on this error of recollection on my part.

27. Mr Bogle replied on 14 August 2008:

"The position is this:

1. The typewritten version of the signed order was sent out by me on 1 August to all parties and then to the court.

2. Various corrections and amendments were, however, thereafter requested by all the parties' representatives. Some went beyond mere typographical corrections, or corrections that were made purely to make sense of the Order, but they nevertheless seemed sensible to the parties' representatives.

3. These have been the subject of further discussion and now, I believe, agreement. I incorporated those into a pre-sealed order which I was on the point of sending to the court.

However, pursuant to your Lordship's below requirement, I have now removed all amendments that are not clearly typographical, or required to make sense of the Order. I thus enclose:

1. Copy of the order AS SIGNED but with typographical and other corrections necessary to make sense thereof; and

2. The additional amendments, in a separate draft supplementary order, sought and (as I believe) agreed by the parties.

I also enclose the draft consolidating all amendments (in tracking format for ease of reference), in case your Lordship should be sympathetic to the parties' suggestion that they all be included in just one order."

28. Miss Hudson's response later the same day was as follows:

"I have now had the opportunity of considering the three documents sent in this matter and I make the following observations

1. I am happy to confirm that the version of the order entitled: "A Final Draft Order (as signed, typos corrected)" accurately records the order signed by the parties at court.

2. The other two orders (ie the supplemental order and the composite order) do not accurately reflect the agreement between the parties as they do not record the dismissal of the father's application for residence as being "By consent". Save in that respect, I believe them to be accurate."

29. Mr Bogle's response yet later the same day was as follows:

"I am grateful for this confirmation.

As to the consent point, my instructions are that Mr A did not understand that he was consenting to the dismissal of his application and wishes the order to record that the dismissal was ordered by the court not by consent. I later raised the addition of the words "by consent" in that paragraph for clarity, mistakenly misapprehending that it was so. Ms Hudson quite rightly pointed out that it was unnecessary as the order was already "by consent". Mr A thereupon responded by saying that he had never given his consent and did not understand the words added in manuscript to paragraph 28 to be indicating his consent. Those manuscript words stated "and the father's application for a Residence Order is hereby dismissed" and were added at the very end of a long negotiating day.

I doubt whether it makes a great deal of difference either way and therefore respectfully submit that Mr A's lack of consent be respected and the dismissal be made as being without his consent."

30. Miss Hudson's rejoinder reached me on 15 August 2008:

"Herewith e-mail from Ms G's McKenzie Friend, David Holden. I apologise for having to trouble you yet again with this matter, but you will see that Mr Holden has specifically asked that his comments be passed to you.

I should also add that on the orders sent to you the costs issue has not been dealt with entirely satisfactorily. On the order signed by the parties there was no provision for costs, but I believe that such provision should be made. Both there and in the amended, consolidating order the appropriate wording should be: "There be no order as to costs save detailed taxation of the costs of the child by his Guardian.""

Mr Holden's email was in the following terms:

"I have read the correspondence between you both and the Judge.

Whilst I accept that the clean copy the Judge wanted does not require [G]'s or my input, as the Judge said that he wanted Counsel only to deal with it, I do take issue with regard to the "non consent" of Mr A application for residence to be dismissed.

The agreement took many days, and both Mr A, his Counsel and Dr Pelling went through it with a toothcomb, and I do not accept that Mr A did not understand or agree with it. Mr A is an intelligent man and was very vociferous when necessary. Indeed, I recall that he refused to sign the agreement on the Friday as he "was a businessman and does not sign anything without understanding the document."

It seems to me that he is now trying to start the process of resiling from the Consent Order, and clearly if he can argue that it was not by consent, he may (and I put it as low as that) attempt to start again.

The Consent Order stands as it is with the parties signatures.

Finally, I do not believe that I am permitted to write to the Judge, and would invite either of you to forward this email to him."

A further copy of Mr Holden's email was sent to me later the same morning by the guardian's solicitor.

31. The same afternoon (15 August 2008) I received a further email from Mr Bogle sending me a clean copy of the order with consolidated amendments "in case the court favours the idea of one order rather than one order plus an agreed supplementary order."
32. The final correspondence was an email from Ms Hudson on 18 August 2008:

"I note the observations made both by Mr Holden on behalf of the mother and Mr Bogle on behalf of the father. The order signed by the father inserted the dismissal of his application for a residence order in the last paragraph of the consent order. I find it difficult to imagine how he could have envisaged this was done in any way other than by consent. I believe the order should reflect what was agreed at court namely the dismissal of his application by consent."

33. In the light of these interchanges it seemed to me that I ought to obtain a recording of what had gone on before me on 29 July 2008 so that I could have the events of that afternoon absolutely clear in my mind before deciding what to do. That I have now done, with the results set out in paragraphs [6]-[21] above.

Discussion

34. It is crystal clear that the entire debate before me on 28 July 2008 proceeded on the basis that with only exception (which has nothing to do with the point now in issue) the draft order which had been put before me (at 1.25.18) was agreed in all respects. Likewise it is crystal clear that, this one point of exception having subsequently been resolved by agreement, there came a point (at 1.52.50, repeated at 1.55.11) when I was being invited to proceed on the basis that the draft order was now agreed in every respect. Thereafter, in the course of taking me through the draft – and this, I emphasise was in the presence and hearing of the father – Ms Hudson made express reference to the fact that the relevant paragraph provided for the "discharge" of the father's application for a residence order. Since, as had been made clear on more than one occasion prior to this, the whole order was being put before me as an agreed order which, if I approved it, would be expressed as being made, as the draft itself made clear, "by consent", and since there was no comment about, let alone any objection to, this provision, I understood, as any reasonable person in the position of the mother, the guardian and their representatives would have understood, that the father was accepting that this consent order would be containing a provision in the final paragraph providing for the "discharge" of his application for a residence order. It was on that basis that, at 4.22pm, I orally pronounced the order. And, in case there was any room for doubt – and in my mind, both then and now, there was and is no doubt of any kind – matters were made absolutely clear when a little while later the father signed the order providing in terms "by consent" for the "dismissal" of his application for a residence order.
35. In these circumstances, and even assuming for the purpose of argument what I have great difficulty accepting as a fact, namely that the father "did not understand that he was consenting to the dismissal of his application", I do not see how he can now rely upon it as a justification or reason for avoiding the agreement to which he put his signature in the circumstances I have described and which became an order of the court – albeit unsealed at that stage – at 4.22pm. Nor, of course, can there be any justification or reason for allowing him to resile from what he agreed and signed, and what he then heard me pronounce as an order of the court, merely because of some subsequent change of heart.
36. The order should therefore, so far as this paragraph is concerned, be sealed in the precise form in which it appears in the document signed by the father and the mother.
37. Mr Bogle and Ms Hudson agree that, subject to only two qualifications, the version of the order entitled "A Final Draft Order (as signed, typos corrected)" accurately records and correctly reproduces the order signed by the parties at court. The first qualification is, of course, that counsel have corrected a small number of typographical and similar errors. Indeed, the draft has reached with each counsel's certificate attached in the following terms:

"This is to certify that I consider that the above is an accurate copy of the Order as signed by the parties on 29 July 2008 with amendments limited solely to typographical corrections and amendments necessary to make sense of the Order."

I have myself checked the text against the signed draft and I am satisfied that each of these corrections or amendments is proper.

38. The other qualification arises out of the point raised by Ms Hudson in her email of 15 August 2008. By what was quite clearly a slip, the order as signed by the parties did not include the provision for costs which, as the recording of the proceedings demonstrates, I had agreed to make. With the substitution of the word "assessment" for "taxation" I shall therefore include, as paragraph 29 of the order, the provision as to costs correctly referred to by Ms Hudson.

Conclusion

39. The order should therefore be sealed in the terms of the draft entitled "A Final Draft Order (as signed, typos corrected)" but including as paragraph 29 the words "There be no order as to costs save detailed assessment of the costs of the child by his Guardian". It is appropriate and convenient in the circumstances that the sealed order should reproduce, for the benefit of those who may have to read it in future, the certificates provided by Mr Bogle and Ms Hudson.

Direction

40. I have therefore today (5 September 2008) directed the Associate to seal the order accordingly. That, as I understand it, has now been done.