England and Wales High Court (Family Division) Decisions

IN THE HIGH COURTS OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		17th June 2014

MRS. JUSTICE ROBERTS:

1. This is an application by SD for permission to appeal an order made by Deputy District Judge Bassett Cross in the Principal Registry of the Family Division on 10^th March this year. Mr. Timothy Scott QC has appeared on his behalf for the purposes of the appeal as he did at the hearing before the Deputy District Judge. Mr. Nigel Dyer QC and Miss Rachel Spicer represent the respondent to the appeal, YD. Apart from the absence of Mr. Scott's Junior before me, the representation on the appeal mirrors that before the Deputy District Judge.
2. It will be convenient for me to refer to the parties as "the mother" and "the father" because of the circumstances giving rise to the current litigation. Each should be aware that I intend no disrespect to either in so doing. I heard detailed oral submissions from both parties' leading counsel yesterday afternoon. Each addressed me by way of supplementary argument to their detailed written presentations. I was taken through a bundle of authorities running to 14 individual case reports. By the time submissions were concluded we had all but reached the end of the court day, and because of various professional and other commitments which precluded counsel and me from sitting beyond the time it would have taken to deliver judgment yesterday evening, I indicated that I would deliver an extempore judgment at ten o'clock this morning.
3. As I said, at the conclusion of yesterday's hearing I have had very detailed legal submissions from each of Mr. Scott and Mr. Dyer and I have been taken in detail to the substance of a number of reported judgments in the authorities bundle. It will simply not be possible for me in the context of this judgment to do full justice to the full breadth and scope of those submissions. I have, however, listened carefully to everything which has been said to me and I have carefully reconsidered those submissions and my detailed written notes over the time which has been available to me in the intervening period. If I omit to refer to a particular point which was canvassed during the course of submissions, it is only because the time available to me to deliver my decision and reasons will not permit me to do full justice to the very full argument which I heard. I have borne well in mind everything which was said to me and everything which I have read.
4. The issue for me can be shortly stated. On 10^th March this year the Deputy District Judge gave the mother permission to amend her pleadings in pending litigation in family proceedings to include a reference to a document in respect of which the father claims privilege. He did so on the basis that, on his analysis of the facts and the law, no privilege attached to that document because at the time it was produced the parties were not in dispute and there was no actual impending litigation between them which might otherwise have engaged the privilege claimed by the father. The document in question, as I shall explain, is a single page document entitled: "Agreement between SC and YD". It is dated 24^th February 2013 and was drawn up, as is common ground, by the father and presented to the mother on that date at the family home in Cobham. It is common ground for the purposes of this permission application that, as of that date, neither the father nor the mother had sought legal advice as to their respective positions. The document was never signed by the mother but it is relied on by the father as a privileged offer of settlement, or an 'opening shot', as it was put to me, prepared by him with a view to opening negotiations designed to avoid future litigation.
5. Mr. Scott, on behalf of the father, seeks to impugn the decision of the Deputy District Judge to admit that agreement in evidence as being one which was wrong as a matter of law. He submits that the decision to allow it in for the purposes of the forthcoming final hearing later next month was a mis-application by the Deputy District Judge of the law to the facts of this particular case. Mr. Dyer contends that the judge was perfectly entitled to reach the conclusions he did, that his decision cannot be said to be plainly wrong, and that the application for permission to appeal should be dismissed given that there is no real prospect that the substantive appeal would succeed were I to grant permission. There is no other compelling reason, says Mr Dyer, why the appeal should be heard.
6. I will very briefly set out the facts in so far as they are relevant to the issue which I have to decide. The mother, who is French, and the father, who is German, have been involved in a longstanding relationship for over 17 years although they never married. She is now 41 and he 45 years old. They have shared a home and family life throughout that period and together they have five children whose ages range from sixteen to six. Family life since 2001 has been lived in a substantial property in Cobham which is held in the sole name of the father and which is worth between £2.5 and £2¾ million. It is mortgage free. The mother has devoted herself over the course of the relationship to the care of the family and has no independent means of support apart from a modest flat in this jurisdiction against which is secured a litigation loan. The father's original estimate of his personal wealth in these proceedings was about £14.5 million.
7. This relationship in its latter stages has been described to me as one of emotional volatility with many 'ups and downs', as the mother has described the position. In October 2012 the father wrote to the mother a deeply personal letter in which he set out many of his feelings about the state of their relationship and his thoughts as to its future in terms of their ability to maintain a shared existence together. I have read that letter and it speaks volumes about their overriding shared love for their children but also of the growing distance which the father, at least, perceived in their personal relationship and common aspirations for future happiness. It speaks of the father's wish to continue to provide their children with the stability of their current home whilst "we must try to live separate private lives under a common roof for a while". He clearly harboured hopes of a rapprochement, if not a full resumption of the previously happy existence they had shared.
8. In terms of practical arrangements, his letter envisaged that there would be no disruption to the rhythm of daily family life either in terms of the retention of the family home or financial provision which had historically been put in place by the father for the family support. At p.70 of section 2 of the bundle the letter contains the following passage:

"As S [the parties youngest child who was then 5 or 6 years old] reaches college maybe we feel the need to move on and we can sell the house where I reiterate that I would like to give you half of its value as it is you [emphasis supplied] who made it the beautiful house it is today."

I pause there to remark that this letter has been admitted as evidence in these proceedings and no issue is taken by the father as to its admissibility.

9. Despite the difficulties which were evident from that letter, the parties' relationship continued. As 2012 drew to its close and during the period leading up to their physical separation in April this year, I am told that their personal relationship survived to the extent that they continued to share a bed and enjoy sexual relations. Christmas 2012 was spent together with the children. It is father's case that he had determined to end the relationship at some point in January of 2013. To this end, he embarked upon a new relationship with a third party. On the mother's case, in ignorance of this fact, their relationship continued uninterrupted, although she accepts that there were tensions between them and the father's attitude and behaviour towards her vacillated between cool distance and positive and affectionate discussions about a continuing future together.
10. It is her case that the February agreement to which I have referred came into existence following a request which she made for some understanding of what financial arrangements the father was proposing to put in place in the event that they were to separate. She had been away from the home on a short trip to New York. When she returned he presented her with the document which I have already described.
11. I turn now to the content of that document which is in the bundle at section 2, p.72, the relevant parts of which seem to me to be these:-

"Both (father and mother) wish for the Cobham house to remain the family base for as long as possible in order to avoid too much disruption in the children's upbringing and with the effort to underline a certain harmony and respect between the parties. Therefore the father would hope to be able to 'share' use of the Cobham House at least until the youngest child S turning six this coming May, joins a weekly boarding college at the age of 13. Should it become unavoidable to sell the Cobham House (in all cases not before three years of this signing) the father will offer half of the proceeds from the sale of Cobham House to the mother in recognition of her contribution to the upkeeping and improvement of the property since the father purchased it in 2001. The mother will retain full ownership of the apartment bought by him in her name in the heart in Walton on Thames as well as the BMW X5 also gifted to her by the father and in her name."

12. The draft agreement then goes on to record various other expenses which the father would pay, the fact that the mother would be welcome at his country home in France, and then this paragraph:

"By signing this document both the father and the mother agree that the level of financial support offered would be neither less nor more than what is outlined herein."

That is not the complete text of the agreement but they are the relevant parts for the purposes of my decision.

13. It is common ground that neither party had sought legal advice at this stage and the content and drafting of that document must therefore be assumed to be that of a layman albeit that I accept the father, as its author, is a sophisticated and highly educated businessman. The mother says that she was extremely distressed to be confronted with this document. She did not sign it and there appears to have been no further discussion between the parties as to its terms prior to the final separation which occurred when the father left the family home in April 2013, some two months later.

The proceedings

14. So I turn now to these proceedings. The mother issued an application for financial provision for the five children of the family pursuant to Schedule 1 of the Children Act 1989 on 18^th April 2013. An application for interim financial provision was heard by Deputy District Judge Wilbourne in November last year. At that point in time the mother, through her legal team, advertised her intention to expand her financial claims so as to seek relief under the Trusts of Land and Trustees Act 1996 (hereafter "TOLATA"). By that claim she was asserting a beneficial interest in the family home based upon a common intention constructive trust or proprietary estoppel. She was directed to file points of claim and provision was made for timetabling the father's defence. These pleadings were filed in December last year and January this year.
15. The mother's claims were considered by the court but within the context of a privileged Financial Dispute Resolution hearing which was listed before His Honour Judge O'Dwyer on 16^th January 2014. It was not possible to reach settlement on that occasion. For the first time, the mother indicated that she intended to seek permission to amend her current TOLATA proceedings so as to rely upon both the October 2012 letter and the draft agreement of 24^th February 2013. Mr. Scott tells me that he saw the draft agreement for the first time on that occasion. As part of the case management directions made at the conclusion of the FDR hearing, the mother's application to amend her points of claim and to rely on that evidence was listed to be heard on 10^th March this year. That was the occasion upon which Deputy District Judge Bassett Cross made the order which is the subject of this application for permission to appeal.

The hearing on 10^th March 2014

16. I am told that the matter remain unallocated on that date until shortly before 2 o'clock in the afternoon when the case was allocated to Deputy District Judge Bassett Cross. It seems from his judgment, of which I have a full transcript, that the papers were delivered to him prior to the lunch adjournment and that he had read into the case fully by the time Mr. Scott and Mr. Dyer appeared before him at 2 o'clock.
17. I am also told that, in respect of the material before him, he had written submissions which were in a more or less identical form to the skeleton arguments which have been put before me for the purposes of this permission application. Mr. Dyer told me that both he and Mr. Scott were given an opportunity to expand in detail upon those written submissions and that the hearing thereafter occupied most of the afternoon in court. At the conclusion of the hearing the Deputy District Judge gave an extempore judgment, the transcription of which is in the bundle and occupies a page and a half and runs to six paragraphs. Having acknowledged the assistance he had had from counsel and having recorded the salient facts at paragraph 4, he said this:

"I have looked very carefully at what has been said by both sides. I have to say that I am not certain as to whether these parties were actually in negotiation at all. My view is that they were going through a bad period, or whatever word describes it better, and that separation may well have been mentioned but in a very loose way. The claimant, not unreasonably, sought clarification. That is clearly set out then in the subsequent documentation. They were not in dispute. There was no actual or impending litigation. The agreement records in a more formal document that which the defendant had set out in the lengthy letter of October. I have to say that I agree with Mr. Dyer that there was no offer to settle a dispute because there was no dispute. There were no concessions made by the defendant. Indeed, he merely sets out their arrangements over at the least the forthcoming five years."

18. The mother was given permission to amend her particulars of claim. In paragraph 21, in particularising her claim against the father and in support of her case that she had a 50% beneficial interest in the family home, she alleges that the father had on at least two occasions acknowledged in writing to her the existence of a common intention that this was the case. The two documents to which I have referred earlier were specifically relied upon as evidence of such common intention. By his defence the father denies any such common intention. Whilst he has not raised objection to the omission in evidence of the letter written in October 2012 he claims privilege for the February 2013 agreement and, by his present application, seeks this court's permission to reverse the Deputy District Judge's decision as to its admissibility for the purposes of the forthcoming five day hearing in July of this year.

The Law

19. Because the TOLATA claim which the mother pursues is governed by the Civil Procedure Rules rather than the Family Procedure Rules, my starting point is Part 52.3(6) which provides that permission to appeal may only be given 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". The question as to what constitutes 'a real prospect of success' was considered by Moor J. in the context of family proceedings in AV v. RM [2012] EWHC 1173 (Fam). In that case he held that he was bound by the guidance given by the Court of Appeal in Tanfern Limited v. Cameron-MacDonald [2001] WLR 131 in which Lord Justice Brooke said at paragraph 21:

"Permission to appeal will only be given where the court considers that an appeal would have a real prospect of success or that there is some other compelling reason why the appeal should be heard (CPR 52.3(6)). Lord Woolf MR has explained that the use of the word 'real' means that the prospect of success must be realistic rather than fanciful."

20. Mr. Dyer has submitted that since this was essentially a case management decision, the bar for the father in this case as the potential appellant is set high given that the decision necessarily involved an exercise of discretion by the Deputy District Judge. Whilst I accept that his decision formed part of his overall function to manage the case efficiently in its course to the final hearing, I accept Mr. Scott's submission that in reaching his decision the Deputy District Judge was not exercising a discretion. The issue as to whether or not the February agreement was a document which attracted privilege was and is a matter of law. Thus, in rejecting the argument that it was privileged he was either right or wrong. It seems to me to be a simple binary decision. If it was privileged as a matter of law, he had no discretion to admit the document unless and until privilege was waived. If it was not a privileged document, it was admissible. Whether that alters the test which I must apply in considering his decision (i.e. was he wrong or 'plainly wrong' to reach the decision which he did) seems to me to matter not. The question which I must answer in the context of this application is whether he was wrong to reach the conclusion which he did as to the admissibility of the agreement in terms of his application of the law to the facts of this particular case. The privilege which attaches to without prejudice communications forms part of the law of evidence. As a matter of well recognised public policy parties are encouraged to settle disputes without resort to litigation and for that reason offers or statements made during the course of negotiations for settlement are prevented from being put before the court at trial as admissions on the question of liability. It matters not whether a document bears on its face the words "Without Prejudice": the court is concerned with substance rather than label. That principle of general application is easily stated. The issue often, as here, lies in the determination as to whether or not a particular document or statement attracts the protection of the privilege.
21. At the heart of this application and the basis of the appeal against the Deputy District Judge's order lies the question: did the 2013 agreement come into being in contemplation of a dispute, actual or impending. The issue was considered in 2006 by the House of Lords in Bradford & Bingley v. Rashid [2006] UKHL 37, [2006] 4 All ER 706, in the context of a building society's claim against a borrower. I was taken to the judgments of Lords Hope and Brown. At paragraph 23, and endorsing what had been said in the Chocoladefabriken case, Lord Hope said this:

"The question is whether the letters in issue were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege."

Lord Brown formulated the test in this way, at paragraph 64. Having noted that, as here, the documents in question were not marked without prejudice he said:

"The critical question here is whether (in Lord Griffiths' words in Rush & Tompkins v GLC) it is clear from the surrounding circumstances that the parties were seeking to compromise the action..."

and immediately thereafter:

"...whether there is an attempt to compromise actual or pending litigation."

Lord Mance, at paragraph 86, said this:

"The existence of a dispute and of an attempt to compromise it are at the heart of the rule…. The rule does not of course depend upon disputants already being engaged in litigation. But there must as a matter of law be a real dispute capable of settlement in the sense of compromise (rather than in the sense of simple payment or satisfaction)."

22. From those statements of the law I collect the following headline points:

(1) Were these parties (or was father in delivering the draft agreement to the mother) seeking to compromise actual or pending litigation?

(2) Do the circumstances surrounding the delivery of that document by father to mother support that interpretation?

(3) At the time, can it be said that there was between them a real dispute which was then capable of compromise?

23. Mr. Dyer has taken me through various authorities including the decision of Cox J. in the case of BNP Paribas v. Mezzotero [2004] IRLR 508 EAT which was an appeal from the decision of an employment tribunal. The issue there was whether or not discussions between an employer and an employee who was raising grievances about her treatment following a return to work after maternity leave were privileged. At the time of those discussions no proceedings had been issued. The judge held that raising a grievance by itself in the context of a work place dispute did not necessarily mean that the parties had reached a stage whereby they could properly be said to be 'in dispute' (see paragraph 28).
24. Similarly, in Midgeley v. Oakland Glass Limited [2009] EWHC1100 (QB), a case in which the passages from Rashid which I have set out above were quoted and applied in full, Tugendhat J. had to consider whether a dispute had come into existence in the context of an exchange of letters which had taken place in proceedings involving a claim for an unpaid debt. The judge in that case formed the view that whilst the content of the letters might be suggestive ('possible' or 'even likely' were the terms he used) that a dispute would emerge, as it eventually did, they did not mean that such a dispute had actually come into existence.
25. Mr. Scott launches his assault on the judgment of Deputy District Judge Bassett Cross by complaint that there is no specific articulation within it of the reasons why he decided against the father on the central issue of whether or not there was a dispute between these parties at the time of the presentation to the mother by him of the February agreement. On his case, the father was bringing to an end a long and stormy relationship which, by February 2013, he had concluded was over. Whatever may have been his subjective perception at that point in time, it is clear to me that the mother may well have been in a different frame of mind. In paragraph 10 of her statement of 27^th February 2014 she says this.

"I had not consulted a solicitor about our domestic arrangement before 24^th February 2013, nor, as far as I am aware had the defendant. He did not tell me that he had done so. There had been no discussions between us about, or mention made of, future litigation, in particular any claims that I might bring against him. In fact I have no idea about my legal rights. All I had asked him to do was to explain what the financial arrangements were going to be if we separated. One of the terms of the defendant's draft agreement was that he hoped we would continue to share the use of the property for many years ahead so a complete separation was not even in his contemplation."

26. That, says Mr. Scott, matters not because I am entitled to focus upon the father's state of mind since it was he who produced the document. It was, he contends, a framework to resolve issues which were clearly there. If there was a real prospect of litigation at the time, then that, says Mr. Scott, is enough. The fact that these parties were in the throes of a breakdown in their personal relationship by itself created a risk of future litigation. Where that risk is present he submits that public policy, if nothing else, requires that a party should be able to advance proposals without being exposed to his terms being subjected to scrutiny by the court in the context of future litigation. Whilst I accept that the authorities demonstrate that a material interval of time between the offers or statements for which privilege is claimed and the commencement of litigation will not necessarily prevent a party from being able to rely upon the privilege (see South Shropshire DC v. Amos [1987] 1 All ER 340 Ofulue v. Bossert [2009] UKHL16) I am bound to consider this particular agreement in the light of all circumstances prevailing in the lives of this couple at the relevant time.
27. In so far as Mr. Scott's submission extends to an invitation to proceed from a position that all offers made in the context of a period of marital or relationship disharmony should be treated as attracting the privilege as a matter of public policy, and I am not sure that he seeks to go that far, I reject that submission. Mr Scott took me in some detail through the judgments delivered by the Court of Appeal in Barnetson v. Framlingham Group Limited [2007] EWCH Civ, 502, [2007] 3 All ER 1054. That case involved a claim by an employee who had commenced work prior to a final resolution of the terms of his remuneration package which he alleged was to include an element of deferred equity. That case makes clear, as I accept, that the without prejudice rule can in appropriate circumstances be engaged notwithstanding the absence of litigation. In his judgment, Auld LJ explored the concept of the working of the rule in what he described as the 'opening shot' cases. I was specifically taken by Mr. Scott through paragraphs 29 to 32 of his judgment and I will not repeat them here. At paragraph 32, his Lordship said this:

"32. The question remains, how proximate, if at all, must unsuccessful negotiations in a dispute leading to litigation, be to the start of that litigation, to attract the 'without prejudice' rule. Must there be, as Mr Oldham contended, an express or implied threat of litigation underlying the negotiations, or, failing any such threat, some proximity in time to the litigation eventually begun? In answering that question, the courts are logically driven back, as Mr Nicholls submitted, to the public policy interest behind the rule, of encouraging parties to settle their disputes without 'resort' to litigation or without continuing it until the needless and bitter end. If the privilege were confined to settlement communications once litigation had been threatened or shortly before it is begun, there would be an incentive on both sides to escalate their dispute with threats of litigation and/or to move quickly to it, before they could safely start talking sensibly to each other. That would be a slippery slope to mutual hardening of positions and commencement of litigation - hardly the encouragement to settle their disputes without resort to litigation that Oliver J had in mind in Cutts v Head.

"33. On the other hand, the ambit of the rule should not be extended any further than is necessary in the circumstances of any particular case to promote the public policy interest underlying it. The critical question for the court in such a case is where to draw the line between serving that interest and wrongly preventing one or other party to litigation when it comes from putting his case at its best. It is undoubtedly a highly case sensitive question, or put another way, the dividing line may not always be clear. The various judicial pronouncements in the leading cases to which I have referred do not provide any precise pointers, and there are seemingly no other authorities directly in point.

"34. However, the claim to privilege cannot, in my view, turn on purely temporal considerations. The critical feature of proximity for this purpose, it seems to me, is one of the subject matter of the dispute rather than how long before the threat, or start, of litigation it was aired in negotiations between the parties. Would they have respectively lowered their guards at that time and in the circumstances if they had not thought or hoped or contemplated that, by doing so, they could avoid the need to go to court over the very same dispute? On that approach, which I would commend, the crucial consideration would be whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if they could not agree. Confining the operation of the rule, as the Judge did, to negotiations of a dispute in the course of, or after threat of litigation on it, or by reference to some time limit set close before litigation, does not, with respect, fully serve the public policy interest underlying it of discouraging recourse to litigation and encouraging genuine attempts to settle whenever made."

28. From those passages I draw the following principles:

(1) The critical question for me is where to draw the line between protecting the public policy interest which is served by allowing a party (here the father) to attempt to compromise future litigation by making offers of settlement and wrongly preventing the other party (here the mother) from putting her case at its best.

(2) That question has to be answered by a consideration of all the surrounding facts. In other words, the 'highly case sensitive question' requires a 'highly case sensitive' response.

(3) For these purposes the subject matter of the dispute between the parties is the feature of central relevance to determining 'proximity' rather than the point on the time line leading up to the commencement of litigation when the document for which privilege is claimed was produced.

29. In considering these issues in the context of this case, I take the clear view that, in terms of 'case sensitivity', I have to look at what was in both parties' contemplation at the time the February 2013 agreement was produced. Did either or both foresee the likelihood of a real dispute culminating in imminent or at least sufficiently proximate legal proceedings and that the father would thereafter seek to rely upon his document as a privileged offer on which the mother would be prevented from relying?
30. In answering this question, I look to the content of the February agreement and I read it by reference, in part, to the content of the father's earlier letter to the mother. Mr. Dyer submits that through each runs the common thread of the father's attempts to navigate his way to a solution whereby the parties would continue to live separate lives under a common roof for a period of time. In each there is a specific reassurance provided to the mother that, should such an arrangement come to an end at an unspecified point of time in the future, her position would be secured in part by the receipt of half the value of the house. The October 2012 letter says this in terms, as does the February 2013 agreement.
31. It is the mother's case that the reassurance which was repeated in the February agreement was given to her as his response to her request for an explanation as to what financial arrangements he might contemplate in the event that they should at some point in the future separate. There is nothing in the body of the agreement which I can see to suggest that it was produced by the father for any other reason. Mr. Scott invites me to assume, as I do, that the first line of the document was intended to read: "By this agreement and in view of our planned separation", (the word 'separation' having been omitted from the original text).
32. Of course, calling a document an agreement does not make it such. It was merely a proposal of his intentions, a response in my view, to the question which the mother had asked of him. The fact that he referred in that document to a "planned" separation rather than to the possibility of such an event, does not, to my mind, mean that there was at that point in time any consensus between these parties that they would inevitably separate. Of course it was a possibility. It had been advertised as such in October the previous year. But whatever may have been in the father's contemplation at that point in time, I do not accept that as at February 2013 there was any clear or defined decision to cease to live together and the continuation of their personal relationship on one level or another is evidenced by the fact that on the mother's case they continued to have sexual relations. These are not issues of fact which I can determine today, but they are in my view relevant considerations which I am entitled to take into account in construing the agreement as one part of a highly fact specific enquiry into all the circumstances surrounding its coming into being.
33. I do not accept Mr. Scott's submission that the reference in the agreement to the potentially binding nature it would assume on signature by both parties adds much, if anything, to the debate. The fact is that neither signed it and it was apparently never mentioned again until the mother sought to raise it in the context of her application to amend her points of claim.
34. Thus, in answer to the questions I posed at the beginning of this judgment and having reviewed all the evidence and the law to which I have been taken, I have reached the following conclusions:-

(1) At the time when the father delivered to the mother the draft agreement in February 2013, neither of these parties can be said to have been seeking to compromise actual or pending litigation;

(2) It follows that, at the time and in the light of all the surrounding circumstances, it cannot be said that there was between them a real dispute which was then capable of compromise in the sense of the test laid down by the House of Lords in Rashid.

35. For these reasons, and whilst I accept that the extempore judgment produced by Deputy District Judge Bassett Cross may not have been as full as it might have been had time permitted further elucidation, I take the view that he cannot be said to be either wrong or plainly wrong on the application of the correct principles of law to the facts as he found them to be. For this reason, there is in my view no real prospect that an appeal would succeed, nor is there any other compelling reason why the appeal should be heard and permission is accordingly refused.