England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		29/05/2012

The Hon. Mr Justice Coleridge :

Background to the application

1. Between 13 February and 21 February 2006 I heard an application for ancillary relief by a wife, Mrs Beverley Charman; ("the wife") against her former husband John Charman ("the husband)". It was in a very real sense a "big money case", as these cases are sometimes rather unattractively described, the assets exceeding £100million. The hearing eventually resulted in my making an award to the wife worth in excess of £40m made up of real property and cash. I think that award still stands as the highest award made in a post divorce contested hearing
2. For the purposes of the hearing enormous quantities of documents were assembled on both sides as a result of the conventional disclosure process governed by the Family Proceeding Rules 1991. All the proceedings before me were, as usual, heard in private and the oral evidence was transcribed as indeed, of course, eventually was the judgment. The judgment generated an appeal to the Court of Appeal which was dismissed. The hearing in the Court of Appeal was, again as usual, in public. Both my first instance judgment and the judgment of the Court of Appeal are reported in the law reports.
3. One of the issues which impacted on my determination of the wife's claim was the extent of the husband's potential tax liabilities. In particular the extent of his income and capital tax liabilities in relation to his interests in Axis Speciality Limited. That in itself depended significantly upon the date when the husband gave up residence in the UK and took up residence in Bermuda. There was considerable evidence about that during the hearing.
4. That potential tax liability has now become more of a reality because the applicants to this application (HMRC) have issued assessments for about £11.5m of unpaid tax for the years 2001 -2008. The husband disputes the liability and to that end has appealed the assessments. The appeal process is very much under way and a directions hearing leading to final hearing was heard the day after I heard argument on this application. A final hearing date for the tax appeal has not been fixed yet.
5. For the purposes of the tax appeal and that hearing HMRC would like sight of and to be able to use transcripts of the divorce/financial proceedings and many other documents which were filed in or brought into being for the application/hearing in front of me.
6. They have asked the husband and the wife to produce them. The wife is not objecting but the husband has refused to do so and so HMRC have issued this application for their production.
7. HMRC's application and the draft order they seek are in the following terms :

"As part of the current litigation regarding Mr Charman's tax liability we request an order releasing and/or producing to HMRC (1) the transcript of the divorce proceedings in the High Court; (2) a copy of Mr Charman's late application made in relation to his tax affairs (3) copies of the documents/evidence which were the subject of that application; (4) copies of any documents, evidence and written submissions served in support of that application; (5) copies of all witness statements and written submissions in the divorce proceedings; (6) any judgment or note of the judgment dismissing Mr Charman's late application; and (7) Schedule 1 of the High Court judgment"

The specific order they seek is in the following terms :

"IT IS ORDERED that:-

The First and Second Respondents release and/or produce to the Applicants, within seven days of the date of this Order, the following documents:

1. The transcript of the divorce proceedings in the High Court heard by Coleridge J on 13-22 January, 24 May, 21 June 2006 and the telephone hearing referred to at paragraph 94 of the judgment;

2. A copy of the Respondent's late application made in relation to his tax affairs (referred to in paragraph 94 of the judgment of Coleridge J);

3. Copies of the documents/evidence which were the subject of that application;

4. Copies of any documents, evidence and written submissions served in support of that application;

5. Copies of all witness statements and written submissions in the divorce proceedings in the High Court;

6. Any judgment or note of the judgment dismissing the First Respondent's late application; and

7. Schedule 1 of the High Court judgment entitled "Comparison of experts' reports and conclusions as to valuation" referred to in paragraph 83 of the High Court judgment."

The arguments

8. Both sides have filed written evidence and very clear and concise written submissions in support of their arguments both for and against production of the documents. Both agree that, in the end, absent the consent of both husband and wife these documents and other evidence are not disclosable unless I so order. Both agree that I have a discretion to order their production and both rely on public interest in support of their respective submissions.

HMRC position

9. Mr Nawbatt (for HMRC) contends that it is always in the public interest for the right amount of tax to be paid by tax payers and that these documents are directly relevant to the matters in issue before the tribunal. In particular they would be helpful to the rebuttal of any case advanced by the husband if it differs from his case previously advanced before me. In other words, specifically, he wants to be able to use the transcripts and documents for the purposes of cross examining the husband especially if he seems to be presenting a case which is factually different to the one relied on by him now in his appeal. HMRC would especially like a sight of the report of the accountants instructed by the husband in the divorce proceedings which was directed to giving an opinion about this precise potential tax liability.
10. Mr Tebbet says in paragraph 6 of his statement that:

"HMRC believes that the transcript of the divorce proceedings (as well as the witness statements and written submissions produced) heard in private by Coleridge J in 2006 are likely to contain information relevant to the tax appeal" and in paragraph 26 he says: "The transcripts, witness statements and written submissions and the schedules ... submitted to the High Court will be of assistance in presenting the full facts to the First-Tier Tribunal".

The husband's position.

11. The husband sets out his principled objection to producing the documents in his statement and in particular says at Para 27.6 and 27 .7………

"27.6 I stand by the comments made on my behalf in Withers LLP's letter of 20 October 2009 (a further copy of which is now shown to me and produced at page 13 of Exhibit JRC1). I gave evidence during my divorce in private and was protected by the cloak of privilege and the parties' duty of confidentiality. For that to be lifted now, with no justification, with no wrongdoing having been proven on my part by HMRC and without even a final assessment upon me would be entirely unfair.

27.7 In summary, I have the opportunity to appeal the assessment via well established procedures. If I am unsuccessful, the liability will be payable. HMRC's application is little more than a fishing expedition designed to disrupt and distract from my rebuttal of the assessment"

12. Mr Leech QC having reviewed the various cases on this topic says this at paragraph 26 and 32

"These proceedings were conducted in private. All first instance judgments, interlocutory and final, were handed down in private. The fact that leave was given for the final judgment to be reported in a non-anonymised form does not derogate from that fact. Nor do the two trips the parties made to the Court of Appeal. Although (i) the contents of the judgment are in the public domain and (ii) the proceedings in the Court of Appeal were conducted in open court, that does not mean that any of the evidence, submissions and unpublished judgments have lost their confidential nature. That much is clear from paragraph 105 of Thorpe LJ's judgment in Clibbery v Allan (supra). See also paragraph 76 of the judgment of Stanley Burnton LJ in Lykiardopulo (supra) and paragraph 33 of the judgment of Thorpe LJ in the same case…………………..the facts of the case fall well short of those in R v R (supra) and A v A; B v B (supra). While it may be appropriate for the court to exercise its jurisdiction in a very rare case to pass on to a third party highly personal information and documentation that has been produced under compulsion, this is patently not such a case. Indeed, absent a clear finding by the court of tax evasion it is hard to see when the sort of disclosure sought by HMRC would ever be an appropriate exercise of the court's discretion".

The law

13. I shall treat this application as being concerned with the Family Procedure (Amendment) Rules 2012 rule 29.12 which reads:

"Access to and inspection of documents retained in court

29.12 (1) Except as provided by this rule or by any other rule or Practice Direction, no document filed or lodged in the court office shall be open to inspection by any person without the permission of the court, and no copy of any such document shall be taken by, or issued to, any person without such permission."

14. Although there may be a technical argument that it was not in force at the time the application was issued nevertheless previous rules are to the same effect and both sides want this application disposed of on the merits so I shall proceed accordingly.
15. I do not think I can improve on Mr Leech QC's summary and exposition of the case law relevant to this application found in paragraphs 18 – 25 of his position statement and for convenience I repeat them in full as they contain the main citations of the relevant cases to which I have been referred by both parties. He said:

"The Law"

16. Despite the advent of the FPR 2010, the old case law remains on point.
17. The leading case is the decision of Wilson J (as he then was) in S v S (Inland Revenue: Tax Evasion) [1997] 2 FLR 774. That case establishes first, that the court has a discretion as to whether to permit disclosure of the papers to HMRC and second, that it will be very rare for that discretion to be exercised in their favour. The learned judge said this at 777:

"Under both r 10.15(6) and r 10.20(3) I have a discretion. In the light of the authorities I propose to exercise it by reference to the following considerations."

 It is greatly in the public interest that all tax due should be paid and that in serious cases, pour encourager les autres, evaders of tax should be convicted and sentenced. It feels unseemly that a judge to whose notice tax evasion is brought should turn a blind eye to it by not causing it to be reported to the Revenue. In one sense that would almost cheapen the law.

 On the other hand it is greatly in the public interest that in proceedings for ancillary relief the parties should make full and frank disclosure of their resources and thus often of aspects of their financial history. Were it to be understood that candour would be likely to lead – in all but the very rare case – to exposure of under-declarations to the Revenue, the pressure wrongfully to dissemble within the proceedings might be irresistible to a far bigger congregation of litigants than is typified by the husband in these proceedings, who of course resolved not to be candid in any event. False presentations by respondents in ancillary proceedings have two repercussions, both seriously contrary to the public interest: (a) either the judge remains deceived, in which the case the award is likely to be inaptly low, or he perceives the deception, whereupon he may draw necessarily broad inferences of hidden wealth which, depending on their scale, could make the award inaptly high or indeed leave it still inaptly low; and (b) applicants are seldom minded to compromise their claims on the basis of presentations which they believe to be materially false and their stance, if justified by the court's findings, will often be upheld in relation to costs. Yet the family justice system depends upon the compromise of all but a few applications for ancillary relief.

Between these two opposing public interests must the individual circumstances be weighed. (emphasis added)

18. It is important to appreciate that in S v S Wilson J had found the husband guilty of tax evasion. Yet he refused the Revenue's application for disclosure, noting:

"It is, however, relevant that the finding of tax evasion resulted from an inference drawn, albeit confidently, from the use of an off-shore company which, as if by magic, held the funds necessary for the purchase of the matrimonial home and from an absurd account of the company's ownership given by the husband without (as it happens) any prior notice give to him in court of his privilege to remain silent against self-incrimination. The finding was therefore of the most general character. No document in any of the bundles and no line of transcript of any of the protracted oral evidence would establish evasion, save cumulatively and inferentially; still less would it help the Revenue to identify it with the necessary particularity. The solicitors' file to which I referred in judgment provided damning evidence that the husband was the effective purchaser of the home but did not represent direct evidence of tax evasion. It is also, in my view, relevant that the evasion took place at least 9 years ago and that, aware in November 1995 that I could release the material to the Revenue, I did not do so. I also feel reluctant to accede to an application for permission to trawl through every line of the proceedings which has been prompted by some private grudge and is made long after the case has been concluded, the substantial award to the wife has been met and the husband (who, I am told, has remarried and gone to live in South Africa) has reordered his affairs."

19. Wilson J referred to the public interest in parties to ancillary relief being candid. With respect, it goes beyond that. The obligation on a party to an application for financial remedies to make full and frank disclosure is absolute. It is a fundamental principle and is of paramount importance if the court is to fulfil the obligations imposed on it by the Matrimonial Causes Act 1973.
20. In Clibbery v Allan [2002] 1 FLR 565 Butler-Sloss LJ said:

Confidentiality of documents in the Family Division

[66] The approach of the courts to applications in family proceedings is to some extent inquisitorial, even in non-children cases. The court is enjoined to have regard to all the circumstances in ancillary relief applications and in applications under s 36 of the Family Law Act 1996, see below. In ancillary relief cases, the requirement of full and frank disclosure and that the parties to a claim for adjustment of their financial positions after divorce are obliged to provide information places a considerable degree of compulsion upon both parties, see Livesey (Formerly Jenkins)v Jenkins [1985] 1 AC 424, [1985] FLR 813, the 1991 Rules, r 2.61B; Form E.

[67] In several first instance judgments the issue has arisen in attempts to use for collateral purposes documents disclosed in family financial proceedings. In Medway v Doublelock Ltd and Another [1978] 1 WLR 710 the plaintiff had sworn affidavits in ancillary relief proceedings in the Family Division pursuant to a court order. In Ord 14 proceedings in the Chancery Division, the defendant company sought to make use of the affidavits in an application for security for costs. The defendant company argued that the implied undertaking applicable to discovery of documents did not apply to disclosures made by the plaintiff in his affidavits of means. Goulding J said at 713 that the principle of the implied undertaking:

'… rests on a wider ground, namely, that public interest requires that a party, compelled by process of law to make what may be damaging disclosures for the purpose of a particular suit, should not thereby be at risk of their use for other purposes. It is a strong thing, though necessary for matrimonial litigation, to make a man disclose all the details of his means.'

[68] He referred to the practice of the Family Division in hearing ancillary relief applications in chambers and the effect of r 130 of the Matrimonial Causes Rules 1977 (now the 1991 Rules, r 10.20) that documents filed with the court were not open for inspection without leave nor could a copy be taken without leave. Affidavit evidence was treated to a considerable extent as confidential. He then considered the balance of public interest and said at 714:

'… in the present case it is necessary to weigh against one another not two competing interests, public or private, but two applications of the same public interest in different sets of proceedings.'

He decided that the confidentiality afforded to disclosure of means made by a party under compulsion in matrimonial proceedings was a matter of great public importance which weighed more heavily than the giving of security for costs and refused the application.

[69] In S v S (Judgment in Chambers: Disclosure) [1997] 1 WLR 1621, sub nom S v S (Inland Revenue: Tax Evasion) [1997] 2 FLR 774 Wilson J gave a written judgment in chambers in an application for ancillary relief. The wife's brother sent an official transcript of the judgment to the Inland Revenue, who sought leave from the judge, under r 10.15(6) of the 1991 Rules, to keep the transcript and obtain a transcript of the oral evidence, and, under r 10.20(3) to inspect the documents in order to investigate the husband's tax position. Wilson J weighed the public interest of due payment of tax and punishment of tax evaders against the public interest in parties in ancillary relief applications making full and frank disclosure of their resources. He refused the application. In 1998 Wilson J heard a similar application where the Inland Revenue had received a copy of the transcript of a judgment delivered by him in chambers in ancillary relief proceedings, in R v R (Disclosure to Revenue)  [1998] 1 FLR 922. In that case upon receipt of the judgment the Inland Revenue made assessments based upon the husband's undisclosed income. The judge held that the disclosure of the judgment given in chambers without leave of the court was irregular. He applied the same principles as set out in S v S (Judgment in Chambers: Disclosure) [1997] 1 WLR 1621, sub nom S v S (Inland Revenue: Tax Evasion) [1997] 2 FLR 774 above but on the facts in R v R (Disclosure to Revenue)  [1998] 1 FLR 922 gave leave to the Inland Revenue to retain the transcript of his judgment.

[70] Charles J in A v A; B v B  [2000] 1 FLR 701 heard together the ancillary relief applications by two wives whose husbands were in business together. Consent orders were made after it became clear that both husbands admitted attempting to hide the true extent of their assets. Charles J indicated his intention of disclosing the papers to the Inland Revenue and to the Director of Public Prosecutions and others. He gave a judgment setting out the appropriate response by the court to revelations of tax evasion or other tax impropriety. He referred to the duty on the parties to provide full and frank disclosure and cited Livesey (Formerly Jenkins)v Jenkins [1985] 1 AC 424, [1985] FLR 813 and pointed out that parties do not have a choice as to what information they provide relating to their means and other relevant information. He said that such information, whether provided by affidavit, or in answer to questions (before or after orders of the court), was provided under compulsion for the purposes of the application.

[71]  In each of the above cases, the obligation on the parties to make full and frank disclosure in their financial disputes was of such importance that it was in the public interest to preserve confidentiality of that information by means of the implied undertaking. In order to achieve compliance with disclosure by the party under the obligation to do so, the party seeking the disclosure is required by the court only to use that information for the purposes of the proceedings. It is the protection provided by the court in cases of compulsion. Ancillary relief applications are appropriately heard in private in accordance with the 1991 Rules, see above. The public may not, without leave of the court, hear the evidence given in these applications. It would make a nonsense of the use of an implied undertaking if information about the means of a party, in some cases sensitive information, could be made public as soon as the substantive hearing commenced. Information disclosed under the compulsion of ancillary relief proceedings is, in my judgment, protected by the implied undertaking, before, during and after the proceedings are completed. Munby J, in his judgment, did not suggest to the contrary. He also pointed out that the 1926 Act (as amended in 1968) protects ancillary relief proceedings from press publication. This may be the case but we heard no argument on it.

[72] The implied undertaking extends, as the cases to which I have referred above show, to voluntary disclosure in ancillary relief proceedings, to the information contained in the documents and to affidavits and statements of truth and witness statements. All such information is required for the full and frank exchange of financial information and all the relevant circumstances which may be necessary to enable the court to know, in order to come to a fair conclusion in accordance with the exercise of its statutory jurisdiction. In my judgment, the obligation to respect the implied undertaking will also be imposed by the court in cases analogous to ancillary relief and found in Part III of the 1991 Rules (see for instance applications in cases of failure to provide reasonable maintenance or application to alter maintenance agreements, rr 3.1, 3.5).

[73] Protection is given by the 1991 Rules to information filed during the proceedings and the requirement for permission for such information or for the judgment to be provided to third parties, see for instance rr 10.15, 10.20. Confidentiality with regard to documents in children proceedings is in wider terms in r 4.23 than r 10.20(3).

21. In the same case Thorpe LJ advanced the following series of propositions:

[99] The first is that family proceedings are easily distinguishable from civil proceedings in the other divisions of the High Court. Speaking of ancillary relief proceedings in the case of Kelley v Corston [1998] QB 686, [1998] 1 FLR 986, my lady the President referred to 'the more inquisitorial atmosphere of family proceedings'. I believe that this means that in family proceedings the relationship between the court and the litigants is clearly distinguishable from the relationship between the litigants and the court in civil proceedings. In the latter the parties bring into the arena such material as they choose to bring, together with such material as they may be ordered to bring during the development of the case. At the completion of that process the judge determines outcome applying the law to such facts as have been admitted or have been found proved. The determination of an ancillary relief application proceeds on a very different basis. First it is to be noted that litigants may not bring into the proceedings such material as they think fit. All parties are under a duty of full and frank disclosure, clearly recognised well before the advent of the statutory powers for equitable redistribution of assets on divorce. The duty was succinctly stated by Sachs J in the case of J-PC v J-AF reported at first instance in [1955] P 228 when he said:

'For a husband in maintenance proceedings simply to wait and hope that certain questions may not be asked in cross--examination is wholly wrong.'

[100] In the light of this apparent misapprehension it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure.

[101] Next it is important to draw attention to the words of s 25 of the Matrimonial Causes Act 1973. Subsection 1 reads:

'It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case …'

[102] Section 25A, introduced by amendment, states:

'Where … the court decides to exercise its powers under section 23(1)(a), (b) or (c), 24, 24A or 24B above in favour of a party to a marriage … it shall be the duty of the court to consider whether it would be appropriate so to exercise those powers that the financial obligations of each party towards the other will be terminated as soon … as the court considers just and reasonable.'

[103] Thus the duty that Parliament has cast upon the court must be matched by a duty on the parties to supply the court with the fullest relevant information. Once the statutory duty is engaged by the issue of an application for relief under ss 22A–24A then both parties are under the duty of full, frank and clear disclosure. A breach of that duty forces the court to draw inferences, inferences which will inevitably be adverse to the party in breach of the duty. There is the clearest authority for the above propositions in the speech of Lord Brandon of Oakbrook in the case of Livesey (Formerly Jenkins) v Jenkins [1985] 1 AC 424, [1985] FLR 813, 436 and 822 respectively when he said:

'My Lords, the terms of section 25(1) of the Act of 1973 which I have set out above are, in my opinion, of crucial importance in relation to the questions raised by this appeal. The scheme which the legislature enacted by sections 23, 24 and 25 of the Act of 1973 was a scheme under which the court would be bound, before deciding whether to exercise its powers under sections 23 and 24, and, if so, in what manner to have regard to all the circumstances of the case, including, inter alia, the particular matters specified in paragraphs (a) and (b) of section 25(1). It follows that, in proceedings in which parties invoke the exercise of the court's powers under sections 23 and 24, they must provide the court with information about all the circumstances of the case, including, inter alia, the particular matters so specified. Unless they do so, directly or indirectly, and ensure that the information provided is correct, complete and up to date, the court is not equipped to exercise, and cannot therefore lawfully and properly exercise, its discretion in the manner ordained by section 25(1).'

[104] In civil proceedings restrictions on dissemination of litigation material for ulterior purposes are usually put on the basis of an implied undertaking not to do so. However it is plain that the concept of the implied undertaking is founded on the duty to the court. In Prudential Assurance Co Ltd v Fountain Page Ltd and Another [1991] 1 WLR 756 Hobhouse J said at 774H:

'It may be thought desirable to express the duty as an implied undertaking to the court. But whether it is so expressed or not, it is in my judgment a duty that is owed to the court and which can be enforced by the court … Breach of the duty amounts to a contempt of court, which may be trivial or serious depending upon 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.'

[105] Accordingly I have no difficulty in concluding that in the important area of ancillary relief, where the table confirms that the volume of business is large all the evidence (whether written, oral or disclosed documents) and all the pronouncements of the court are prohibited from reporting and from ulterior use unless derived from any part of the proceedings conducted in open court or otherwise released by the judge".

Conclusion and findings

22. Paraphrasing the law is always risky but I think the effect of it can be shortly stated thus. As a general rule documents and other evidence produced in ancillary relief proceedings (now called financial remedy proceedings) are not disclosable to third parties outside the proceedings save that exceptionally and rarely and for very good reason they can be disclosed with the leave of the court. The fact that the evidence may be relevant or useful is not by itself a good enough reason to undermine the rule.
23. No one would seriously argue with the proposition that it is in the public interest for the right amount of tax to be paid by taxpayers. Further there is no doubt that the documents sought in this case would be relevant to the proceedings before the First Tier Tribunal Tax Chamber and, for obvious reasons might well be of assistance to them. But that is not the test I apply.
24. Having considered and balanced the competing public interests here, I have no hesitation in finding that there is nothing rare or exceptional about this case which takes it outside the general rule. The husband is entitled to say, with indignation, that he complied fully with the rules of disclosure and the confidentiality/privilege attached to the documents and other evidence produced thereby should not be breached. HMRC have advanced no discernable compelling reason why the general rule should be relaxed in this case.
25. I am fortified in this view by the fact that :

a. There is no suggestion that the husband is guilty of tax evasion or criminal conduct in relation to his tax affairs. This is a routine tax assessment.

b. The burden of proof is anyway on the husband in the tax appeal. He must prove his case.

c. The judgments at first instance and on appeal are already available to HMRC.

26. Accordingly I decline to make the order sought by HMRC and the application is dismissed.
27. If, of course the husband himself wishes to rely upon documents/evidence he produced during the hearing in front of me he may have leave to do so but in that event all relevant material must be produced to the Tribunal not just highlights he selects which support his case.