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
		9 February 2010

Lord Justice Munby (sitting as a Judge of the Family Division) :

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).
2. Paragraph 5 of the order which I subsequently made on 20 January 2010 provided that any party seeking permission to appeal should lodge written submissions by no later than 4 pm on 29 January 2010 and that any party wishing to oppose any such application should lodge written submissions in reply by no later than 4 pm on 5 February 2010. Paragraph 5 proceeded to direct, the parties having agreed to this, that any decision as to whether to grant or refuse permission to appeal should be made by me on paper and without an oral hearing unless, having considered the proposed application, I considered a hearing was required. In the event I have not.
3. Paragraph 6 of the order provided that in the event that any application for permission was made the periods for lodging an appeal or for seeking permission to appeal to the Court of Appeal under CPR 52.3 should run from the date when the decision on permission was communicated to the parties. Paragraph 7 of the order stayed the operation and effect of the substantive provisions of the order, in the first instance until 19 February 2010 (or further order in the meantime in the event that no application for permission to appeal was made), and provided that in the event of any application for permission to appeal being made I would consider as part of my determination at that stage whether and to what extent the stay should be extended.
4. On 29 January 2010 I received an application for permission to appeal from Mr Clemens on behalf of the First and Second Claimants, Dr A and Dr B. There have been no applications from either the Trusts (on behalf of the treating clinicians) or CCC (on behalf of the social workers).
5. Mr and Mrs Ward responded stating, unsurprisingly, that they opposed the application.

The law

6. CPR 52.3(6) provides that permission to appeal to the Court of Appeal may be given only where:

"(a) the court considers that the appeal would have a real prospect of success; or

(b) there is some other compelling reason why the appeal should be heard."

CPR 52.11(3) provides that the Court of Appeal will allow an appeal where the decision of the lower court was:

"(a) wrong; or

(b) unjust because of a serious procedural or other irregularity in the proceedings of the lower court."

The proposed grounds of appeal

7. Mr Clemens disavows any reliance on CPR 52.11(3)(b); he does not suggest that there was any procedural or other irregularity in the proceedings before me. But he seeks permission to appeal, under both limbs of CPR 52.3(6), in relation to:

i) my refusal to grant his clients contra mundum injunctive relief; and

ii) the section 12 disapplication point, but, as he makes clear, only to the extent that a successful appeal on the contra mundum point would prohibit the publication of any material which named his clients.

8. Mr Clemens takes no issue with my findings and rulings on what – in law – the proper test is under section 12 to determine whether it applies (and so requires disapplication) or on the disapplication itself. So far as concerns section 12 his clients are content so long as their anonymity is preserved by redaction.
9. So far as concerns CPR 52.3(6)(a), Mr Clemens submits that there is a real prospect of showing that my ruling on the exercise of the restraint jurisdiction was wrong in that:

i) The legitimate expectation of Dr A and Dr B – whilst acknowledged as established in fact – was not given any (legal) effect when it should have been. Such a finding, he says, runs counter to established convention in the way experts are engaged and the basis on which they act.

ii) The characterisation, and rejection, of the evidence of harassment (and fears of harassment) as being general, lacking in detail and that it (effectively) amounted to no more than "mere assertion", was flawed in that it failed properly to recognise the (necessary) difficulty of being able to "prove" that facet of the case when there had in fact been no harassment.

iii) Dr A's and Dr B's Article 8 rights were given insufficient weight and – correspondingly – the Wards' Article 10 rights given too much weight.

iv) The assessment of the Wards' motivation for wanting to name Dr A and Dr B ignored, and downplayed, their (the Wards') association in the media with high profile cases (such as Professor David Southall) and their expressed intention to make comment in the media on Judge Plumstead's judgment, which they described as the "official version".

10. So far as concerns CPR 52.3(6)(b), Mr Clemens submits that there are other compelling reasons why an appeal should be heard in that:

i) The judgment addresses and deals with matters of pure principle (para [3]) and questions of fundamental importance in relation to the practice and procedure of the Family Division and all family courts (para [2]).

ii) On any view, this judgment will be read and interpreted as a definitive exposition of the current (and pre-existing) law.

iii) The legal (and political) landscape in this area is fluid and – as acknowledged in the judgment – the Children, Schools and Families Bill is currently before Parliament. That would introduce a new publication framework and clause 37 of the Bill deals with the naming of expert witnesses.

iv) Mr Clemens acknowledges that point (iii) cuts both ways and that it could be said that it is now a matter for Parliament to decide rather than the courts. But it is important, he submits, for the Court of Appeal to consider these issues, for whatever statutory regime might be put in place, issues such as what legitimate expectation an expert might (factually) have and its effect in law, and whether unspecified and general fears of unjustified harassment and vilification are sufficient to make out the grounds for injunctive relief, will still need to be addressed.

v) The cumulative effect of points (i)-(iv) is that there are compelling reasons why the Court of Appeal should review the decision on anonymity.

The proposed grounds of appeal: discussion

11. I have deliberately set out Mr Clemens's submissions almost verbatim, for it is as important to see what he is not saying as what he is.
12. So far as concerns the application under CPR 52.3(6)(a), it will be noticed that Mr Clemens does not suggest any error of law on my part, does not suggest that I had regard to any irrelevant fact and does not suggest that I failed to have regard to any relevant fact. Nor does he assert that I was 'plainly wrong' in my 'parallel analysis' or in my application of the 'ultimate balancing test.' In essence his complaint is that in coming to my decision I gave the wrong weight – in some cases no weight or too little weight, in one case too much weight – to the factors which he refers to.
13. I do not propose to give permission for, putting the matter very shortly, I am quite unpersuaded that there is any real prospect of Dr A and Dr B succeeding on any of the grounds Mr Clemens has identified, whether those grounds be considered separately or together.
14. So far as concerns the application under CPR 52.3(6)(b), whilst I can see the force of at least some of the points Mr Clemens makes – I put it this way because as Mr Clemens himself accepts at least some of his points cut both ways – I do not propose to give permission. Given that I am not giving permission to appeal under CPR 52.3(6)(a), it seems to me, as a matter of general principle, that a decision as to whether, in such circumstances, permission should be given under CPR 52.3(6)(b) is a question usually, and certainly in this particular case, better left for determination by the Court of Appeal rather than by the judge at first instance.

The stay

15. Mr Clemens submits that if permission to appeal is given the stay on being able to name Dr A or Dr B, or to publish any document or information which would identify them, should remain in place until the final determination of the appeal. He says that whilst that will no doubt be frustrating for the Wards, if the position was otherwise, any appeal would be academic and pointless if the 'cat was (already) out of the bag'.
16. Mr Clemens makes clear that his clients have no objection – nor, as he observes, could they, given the parameters of the permission being sought – to the Wards publishing any document, so long as Dr A and Dr B are not named or otherwise identified. He suggests that, pending the outcome of the appeal, there is scope here for co-operation. For, he says, if the Wards want to publish material it would be sensible for them to show it to Dr A's and Dr B's advisers prior to publication – as I understand it with a view to agreeing the necessary redactions to preserve the anonymity in the meantime of Dr A and Dr B.
17. Accordingly, he submits, the stay, subject to the minor relaxation I have just referred to, should remain until final resolution of the appeal.
18. In the event I have not been persuaded to give permission to appeal, an outcome which on this point Mr Clemens's submissions do not address. But in all the circumstances, and very conscious that once the 'cat is out of the bag' any appeal will be largely nugatory, it seems to me that I ought, nonetheless, to extend the stay for a further brief period to enable Mr Clemens and his clients to consider whether they wish to renew their application for permission to the Court of Appeal and, if they do, to enable the Court of Appeal to consider for itself whether or not to extend the stay. When I refer to the stay I mean, of course, the stay so far as it relates to Dr A and Dr B. There being no application for permission to appeal by either the Trusts or CCC there is no basis for any further extension of the stay so far as it relates to either the treating clinicians or the social workers.
19. I shall therefore order that paragraph 7 of the order I made on 20 January 2010 be discharged and that there be substituted therefor an order in the terms of paragraphs 3-5 of the following draft.

Order

20. I shall accordingly make an order in the following terms:

"Upon the application by the First and Second Claimants for permission to appeal

And upon reading (1) the judgment handed down on 8 January 2010, (2) the order made on 20 January 2010 by Lord Justice Munby (sitting as a Judge of the Family Division) and (3) the written submissions filed on behalf of the First and Second Claimants and on behalf of the Respondents

IT IS ORDERED that:

1 The application by the First and Second Claimants for permission to appeal is refused with no order as to costs.

2 Paragraph 7 of the said order of 20 January 2010 is discharged and there is substituted therefor an order in the terms of paragraphs 3-5 below.

3 So far as concerns or relates to either the First Claimant and/or the Second Claimant (but not otherwise):

(i) the operation and effect of paragraphs 1 and 4 of the said order of 20 January 2010 are stayed in the first instance until 23 February 2010 to enable the First and Second Claimants to consider whether to renew their application for permission to the Court of Appeal; and

(ii) if but only if either the First Claimant and/or the Second Claimant has by 4pm on 23 February 2010 issued an application to the Court of Appeal seeking both permission to appeal and a further stay pending consideration of such application, then the operation and effect of paragraphs 1 and 4 of the said order are further stayed until 4pm on 5 March 2010.

4 Any application by either the First Claimant and/or the Second Claimant for any further stay thereafter must (unless the Court of Appeal otherwise directs) be made to the Court of Appeal and by 4pm on 23 February 2010.

5 For the avoidance of doubt, so long as the stay remains in force the Respondents shall not publish or put into the public domain the names of the First and Second Claimants and shall behave in all respects as if the contra mundum injunction is still in force in relation to the First and Second Claimants (but not otherwise)."

The order will be dated 9 February 2010.