England and Wales High Court (Family Division) Decisions

Royal Courts of Justice
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		No. 9NE30024
		19th August 2014

MR. JUSTICE MOYLAN:

1. The parties to these proceedings are NCC, AH and DH. There are two sets of proceedings, one under the inherent jurisdiction and one in the Court of Protection. NCC is respectively the claimant and the applicant. DH is the second defendant and second respondent. The Official Solicitor was appointed to act for AH as litigation friend in, it appears, both sets of proceedings on 18^th October 2010.
2. NCC is represented by Mr. O'Brien. AH and DH have both appeared in person. The Official Solicitor is represented by Ms. Dolan.
3. By an order made by Bodey J on 11^th November 2011, in both proceedings, the following issues were identified as requiring determination:

(a) an application by DH for disclosure to him of any reports and/or letters by Dr. McInerney and the report of Dr. Khouja dated 29^th July 2011;

(b) an application by AH for disclosure to her of the said reports and of her Social Services records (it being acknowledged by all parties that she would share them with DH); and

(c) applications by AH and DH for their costs, or a proportion thereof, incurred in both sets of proceedings to be paid by the local authority.

4. Bodey J's order followed an oral application being made at the hearing before him by DH and/or AH, for disclosure of the documents referred to above. DH and AH seek disclosure of these documents because, in summary, they want to investigate and challenge their contents, particularly the report of Dr. McInerney. They want to correct what they assert are inaccuracies in the reports and the records. They propose making a complaint to the General Medical Council or other appropriate body against Dr. McInerney, and they propose taking libel proceedings against her.
5. NCC oppose the applications for disclosure, and also oppose the application for costs. They submit that there should be no order as to costs. In respect of the disclosure applications NCC submit simply that, because the proceedings have effectively concluded, disclosure should not be ordered. Additionally, NCC submit that disclosure should not be ordered because it would expose AH to a risk of harm. It is asserted that this would occur both from direct disclosure to DH and from disclosure to AH because, as recorded in Bodey J's order, she would provide the documents to him.
6. The Official Solicitor also opposes the application for disclosure broadly on the same grounds as those advanced by NCC.
7. It is not entirely clear to me why it was considered that the issues identified under (a) and (b) above require determination when the proceedings have effectively concluded as a result of NCC withdrawing their applications. I say effectively, because, by Bodey J's order, the determination of the proceedings has been suspended pending the resolution of the identified issues.
8. For the purposes of determining the above issues, I have read the joint statement of AH and DH, a statement from DH's solicitor, and statements from a social worker team manager, Ms. Hardman, and a solicitor for NCC, Mrs. Ord, on the issue of costs. I have also heard oral evidence from Ms. Hardman and Mrs. Ord, again confined to the issue of costs. I have read and heard submissions from Mr. O'Brien, Ms. Dolan and DH on behalf of himself and AH. At times during the hearing, AH also added points of her own.

Proceedings

9. In April 2009, NCC commenced proceedings under the inherent jurisdiction. It was asserted in the claim that AH appeared to be a vulnerable adult in respect of whom NCC had obligations, as set out in Re Z (Local Authority: Duty) [2005] 1FLR 740, especially at para.19.
10. On 28^th April 2009, after hearing counsel for NCC, counsel for AH and DH, who was assisted by a solicitor, I made an order with the following recitals:

"And upon the court recording that AH has, through her counsel, expressed a willingness to undergo a capacity assessment and a care co-ordination assessment …; that she is willing to be interviewed on her own for such assessments; that she is willing for her medical and social work records to be disclosed for such assessments.

And upon DH assuring the court that he will not obstruct, in any way whatsoever, AH in undergoing a capacity assessment or a care co-ordination assessment and not to discourage AH from attending such assessments."

11. My order was expressed to be with the consent of NCC and AH. I ordered the preparation of a report from a consultant psychiatrist on AH's capacity (in respect of three identified matters) and also on whether she was a vulnerable adult. Pursuant to that order, a report was prepared by Dr. McInerney.
12. On 9^th March 2010, NCC made a without notice application to the court for an order that Dr. McInerney's report should not be disclosed to AH or DH. On 11^th March 2010, King J (as she then was) made an order to that effect.
13. On 18^th March 2010, the solicitors then acting for DH wrote to NCC expressing concerns about the effect of King J's order. In particular, they said:

"We believe that the decision to withhold Dr. McInerney's evidence within the context of these proceedings can only be justified on a temporary basis, perhaps whilst mechanisms are put in place to enable some independent reassurance to be available to the local authority of AH not coming to any harm. If these proceedings are going to lead to any substantive intervention on the part of the local authority, on the basis either that AH lacks the capacity to make important decisions or that she is a vulnerable adult effectively unable to exercise the capacity that she may have, then the evidence of Dr. McInerney, as well as of the local authority's Social Services staff, has got to be tested.

It is unimaginable that the court could proceed to make decisions which would, among other things, produce a radical infringement of the parties' Article 8 rights without the evidence on which those decisions were being made being properly tested at court. There would be an obvious infringement of Article 6".

14. The letter also states that DH understands that AH has said things which:

"taken at face value, would lead those professionals [that is social workers and Dr. McInerney] to have a degree of concern. Our client's instructions are that he believes it to be part of his wife's extremely complex condition that she describes aspects of her life in a way which does not represent reality. Our client accepts that the premise of these proceedings is that the local authority believes his wife's descriptions of how he has treated her may be true, but the point of our raising this issue in this context is that reading what his wife is recorded as having told Dr. McInerney is highly unlikely to produce any surprises to our client or, therefore, to produce any increased level of risk to his wife".

DH instructs them that AH "often expresses a very distorted view of reality", which could have led the local authority to conclude that what AH has said about DH mistreating her represents the reality. "Where the truth lies is to be resolved by evidence".

15. On 22^nd March 2010, DH's solicitor issued an application for disclosure of Dr. McInerney's report. On 25^th March 2010, King J determined the application after hearing counsel for NCC, solicitors for DH, and AH in person. She ordered that Dr. McInerney's report should not be disclosed to DH or AH.
16. On 29^th April 2010, NCC commenced proceedings in the Court of Protection. On 18^th October 2010, Her Honour Judge Moir made a substantive directions order, both in the proceedings in the Court of Protection and in the proceedings under the inherent jurisdiction. The Official Solicitor was appointed to act for AH in, it appears, both sets of proceedings.
17. The Official Solicitor made clear that he did not seek to rely on Dr. McInerney's evidence. NCC also made it clear that they no longer relied on Dr. McInerney's evidence. Accordingly, the parties were given permission jointly to instruct a consultant psychiatrist, Dr. Khouja, to prepare a report on AH's capacity to litigate. Dr. Khouja was also to be instructed to report on whether:

"AH would be at any physical and/or emotional risk from DH should (1) DH become aware that AH may have made statements or expressed opinions adverse to his own position, (2) DH be provided with Dr. Khouja's own report or any specific part of his report, including any supplementary report he may have prepared".

18. Paragraph 8 of the order provides:

"Dr. Khouja shall provide a supplementary report considering the recent Social Services assessment of AH, and he may also include in that supplementary report, any matter or opinion which he would wish to report upon, but he is of the view should be withheld from DH pending judicial determination of any disclosure issues."

At 9:

"Dr. Khouja's supplementary report shall be provided to the complainant and the Official Solicitor, but it may be withheld from DH subject to subsequent judicial determination of whether that report or matters within it should be disclosed to DH."

The order provides that Dr. Khouja's costs are to be met by NCC.

19. Dr. Khouja provided his reports pursuant to that order in July 2011. His substantive report, dated 13^th July 2011, has been disclosed to all the parties. His supplementary report has not been disclosed.
20. Dr. Khouja concluded that AH did not lack capacity in respect of any of the matters which he had been instructed to assess. This led to Bodey J's order of 11^th November 2011. By consent, NCC were given permission to withdraw both sets of proceedings. The Official Solicitor was discharged as litigation friend to AH although he remained as an interested party for the purposes of the disclosure application.

Issues

21. The determination of the issues identified in Bodey J's order has been significantly delayed, in part because it was considered necessary for the court to hear oral evidence from Dr. McInerney and Dr. Khouja. At the commencement of the hearing before me, I raised with the parties why such evidence was considered necessary. If it was considered to be necessary, I questioned what issues that evidence would address and, if those issues included any consideration of any alleged justification for withholding disclosure of the reports of Dr. McInerney and Dr. Khouja, how that could take place with AH and DH present in court.
22. Given the potential difficulties, as I saw them to be, I decided that I would not hear evidence from Dr. McInerney or Dr. Khouja, and would not embark on any consideration of whether the documents should not be disclosed because of any alleged risk to AH which might result from such disclosure. At this stage, I would confine my determination of the issue of disclosure to the other points raised by the parties. If I decided that disclosure should be ordered by reference to these points, I would determine the issue of risk at another hearing.

Evidence

23. Turning now to the evidence, I have referred above to the written evidence adduced by the parties.
24. The joint statement provided by DH and AH deals with their position in detail. They refer to, what are called, AH's "cognitive distortions" and to the inability of anyone involved in these proceedings to see "past their own blinkered and misconceived views of what they have contrived". This applies especially to Social Services and to Dr. McInerney. For example, in their statement which is dated 13^th February 2012, they say:

"When it came to the assessment sessions ordered by the court, Social Services personnel clearly demonstrated to us that they lacked the ability to recognise that I (AH) have mental health problems - when they were sat with a consultant psychiatrist's diagnosis in front of them - what chance have they got to recognise how my complex mix of OCD, phobias, obsessions, rituals, compulsive, cognitive distortions, mood swings and perseveration has some effect on what I say and how I say it in response to their questions. They were unable, or unwilling, to ask secondary and tertiary questions etc. in order to clarify, untangle and translate my 'cognitive distortions'. So they got most of it wrong".

DH and AH say that they need to "weed out" the untrue statements and deal with them by way of correction and/or complaint.

25. NCC have filed two statements on the issue of costs. In her statement dated 9^th February 2010, Ms. Hardman states:

"6) I recollect a telephone conversation I had with DH on 11^th May 2009. He said that he had received a bill from the solicitors representing AH and, if he did not pay the bill for the solicitor to represent AH then she would no longer have legal representation. I told DH that he needed to speak to our Legal Services and made no promises in relation to legal costs as I had no authority to do so. DH provided me with telephone contact details for MS, a solicitor at Irwin Mitchell.

7) Later that same day, I spoke to Helen Ord (Solicitor, NCC), and advised her of the telephone conversation that I had had with DH. Mrs. Ord questioned whether this would be a bill, given that it was early on in the proceedings. Mrs. Ord agreed to speak to AH's solicitor for clarification.

8) On 18^th May 2009, I received a telephone call from Mrs. Ord, who advised me that she had spoken to SM at Irwin Mitchell, who advised that a bill had not been sent, but that she had made a request for payment on account of costs. I was advised that I did not need to take any further action, and it was reconfirmed that any requests for the local authority to pay any legal costs be directed to Mrs. Ord.

9) I received a letter from AH dated 8^th February 2010. It states:

'You mentioned many months ago that you would arrange for Social Services or their agents to pay my legal fees. We are still waiting for this to become a reality - details please'.

10) I had already previously raised the issue of legal costs and I did not take this matter any further, as I had already explained that this was not a matter that I could resolve. I have no record or recollection of there being any specific discussions at the sessions held with AH in relation to legal costs. I must emphasise that any such agreement would require the authority of the Director of Adult Social Care, as I have no authority to agree to such an outlay.

11) I can confirm that the local authority agreed to meet the costs of AH's representation by the Official Solicitor, and those costs were only due to be paid until the Official Solicitor could determine whether AH was eligible for public funding. DH and AH failed to comply with the court order requiring production of evidence of AH's finances. As a result, the local authority paid all the legal costs of representation by the Official Solicitor."

26. In her statement dated 13^th February 2012, Mrs. Ord states:

"On 11^th May 2009, I received a telephone call from Penny Hardman advising me that she had received a call from DH. DH had said to Ms. Hardman that he had received a bill from the solicitors representing AH and that, if he did not pay the bill, then AH would no longer have legal representation. Ms. Hardman told me that she had said to DH that he needed to discuss that matter with me, and that she had made no promises to DH in relation to the legal costs. DH provided contact details for MS, a trainee solicitor at Irwin Mitchell".

Mrs. Ord also states that she does not, personally, have authority to authorise the payment of legal costs, and that she would refer any such request to the Director of Adult Social Care for approval.

27. On 18^th May 2009, Mrs Ord spoke to SM (solicitor at Irwin Mitchell) and questioned what bill had been sent to DH: "SM advised me that she had not sent a bill, but had made a request for payment on account of costs".
28. On 20^th August 2009, Mrs Ord received an email from MS. The email conveys MS's understanding that NCC would accept responsibility for the costs incurred in relation to the instruction of Dr. McInerney.
29. Mrs Ord also sets out in her statement the payment by the local authority of the costs incurred by Irwin Mitchell in drafting the letter of instruction to Dr. McInerney.
30. In her oral evidence, Mrs. Ord reiterated that no agreement had been made that NCC would pay AH's or DH's costs. She was the solicitor who had conduct of the proceedings until September 2013. In response to questioning by DH, she said that a social worker would not have authority to give any assurance in respect of costs, without prior authority having been given to them. This was in response to DH asking about a reference in the position statement dated 11^th November 2011, prepared by DH's then solicitor. In this, reference was made to DH reporting that AH had told him she was given an assurance by social workers, in the assessment sessions in about May 2009, that her legal costs would be paid. Whilst this questioning was taking place, AH added that she had not been very well at that time (i.e. May 2009).
31. In her oral evidence, Ms. Hardman said that she would not have told AH that her legal costs would be paid. She would not have had any authority to make any such representation, and she cannot think that she would have done so. At this point in her evidence, AH interjected that it was difficult now to remember what was said.
32. When questioned by DH, Ms. Hardman said again that she had not been in a position to offer to pay AH's legal costs. She also said that costs were not an issue, and she could not see why they would have come up at the assessment sessions. She refuted DH's direct suggestion that she was lying.
33. AH did not give evidence on this issue. She told me that she cannot now remember what took place, and that, at the time, she was not in a fit state and was not taking things in.
34. There was also produced, during the course of the hearing, the client billing account record from AH's solicitors. This records that, on 7^th May 2009, DH telephoned saying:

"AH has just come back from assessment. Social worker has told her that they would pay barrister's fees? What does this mean - all our legal costs? MS will have to check, but we have not heard anything about this. DH would like confirmation, as was just about to send down payment".

35. On 8^th May 2009, the solicitor, MS, rang DH and the record states:

"MS calling client, as not heard from her as expected. Left message further to conversation with DH yesterday. No arrangement re our fees - need money on account or not able to do any more work. Still need to speak to AH. Can she call next week?"

36. It is clear from this evidence that MS was reporting to DH and, more particularly, AH that there was no arrangement, as she understood it, with the local authority, NCC, for the payment of costs.

Legal Framework

37. Turning now to the legal framework, the expert evidence in this case was obtained for the purposes of these proceedings and pursuant to court orders. The court has power to provide to whom such evidence is to be disclosed and to whom it is not to be disclosed, including a party to the proceedings: see, for example, Re B (Disclosure to Other Parties) [2001] 2 FLR 1017.
38. The experts overriding duty is to the court. Both proceedings in this case were heard in private. The reports are, therefore, confidential to the court, as described by Sir Nicholas Wall, President, in A County Council v. SB, MA & AA [2011] 1FLR 651. At para.34, he said:

"In my judgment, 'confidentiality' in this context means that the information contained in the papers filed with the court for the purposes of the proceedings is confidential to the court. It is for this reason that, with very few exceptions, the court papers cannot be disclosed to people who are not parties to the proceedings without the court's permission; and publication outside the proceedings of information relating to the proceedings is in most cases a contempt of court unless permission for it has first been given by the court".

39. As a result of being confidential to the court, and to the proceedings, a report cannot be used by any party for any collateral purpose or purpose unconnected with the proceedings without permission from the court. There are a significant number of cases which address the factors which the court will take into account when deciding whether to give such permission.
40. Turning now to disclosure, the general rule is that a party is entitled to the disclosure of all evidence which any party proposes to adduce to the court. As Lord Dyson said in Al Rawi & Ors. v. The Security Service & Ors. (Justice & Ors. Intervening) [2012] 1 AC 531, at para.12:

"Trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance".

It can be seen from this passage that disclosure is made for the purposes of the proceedings and to ensure that any trial is fair.

41. On the issue of costs, under the Court of Protection Rules 2007, the general rule is that there will be no order as to costs (Rule 157). Rule 157 provides that the court can depart from the general rule if the circumstances so justify:

"In deciding whether departure is justified, the court will have regard to all the circumstances of the case, including -

(a) the conduct of the parties;

(b) whether a party has succeeded on part of his case, even if he has not been wholly successful; and

(c) the role of any public body involved in the proceedings".

Submissions

42. I propose, only briefly, to summarise the parties' respective cases.
43. Mr. O'Brien submits that, because the proceedings have come to an end, there is no justification for the documents sought by DH and AH to be disclosed to them. In the absence of any prospective trial, there is no basis for making an order for disclosure. Their rights to a fair trial are not engaged. Mr. O'Brien relies on the authorities I referred to above.
44. Mr. O'Brien further submits that the court should not, in any event, give DH and AH permission to use the documents for the collateral purposes which they have identified.
45. On the issue of costs, Mr. O'Brien submits that NCC brought the proceedings pursuant to the duties imposed on them, both in respect of vulnerable adults and under the Mental Capacity Act. The proceedings were undertaken in good faith, and he submits the conduct of NCC cannot be criticised. He also submits that the evidence establishes there was no agreement to pay any costs, as asserted by DH and AH.
46. Ms. Dolan, on behalf of the Official Solicitor, submits that the reports and other documents should not be disclosed. She submits, additionally, that there is no basis for varying the orders made by King J and by Her Honour Judge Moir. Given that the proceedings have effectively concluded, no issue remains to be determined.
47. She also invites me to make clear that, if I do not accede to the applications for disclosure made by DH and AH, the Official Solicitor and the solicitors instructed by him should not disclose the documents to AH. She submits that this is necessary in order to ensure that the effect of my determination is not negated. She is concerned that, otherwise, there is the potential for further satellite litigation against the Official Solicitor for disclosure of the documents.
48. DH and AH have made very detailed and lengthy written submissions. DH has also made lengthy oral submissions assisted, as I have said, on occasion by AH. I propose, as referred to above, only to summarise these submissions in this judgment.
49. DH makes clear that they seek disclosure of the reports and other documents prepared for the proceedings, so that they can challenge the "toxic" comments made in these documents. They intend to report Dr. McInerney to the General Medical Council for unprofessional conduct, and possibly to take libel proceedings.
50. DH says that the information in the documents will reflect the "cognitive distortions" of AH and her "perseveration". In his view, he is uniquely qualified to deal with AH's behaviour because of his knowledge and experience, and to understand it. They have many complaints against the lawyers, including AH's previous barrister, against Social Services and about the evidence. DH argues that they have the right to challenge what is said in the evidence and records, to correct it and to "clear" their names.
51. In respect of costs, DH and AH rely on the submissions prepared by DH's then solicitor on 11^th November 2011. In that document, the application for costs is advanced as follows:

"1) It is not submitted that NCC should pay the costs of the proceedings on the basis, simply, that they are withdrawing them. This, it is acknowledged, would create a disincentive to proceedings being withdrawn for constructive reasons. It would also be inconsistent with Rule 157. However, it is submitted that there was a lack of planning by NCC about what useful outcome might result from the proceedings, once it became known that AH wanted to remain living with DH. From this point, the discontinuation of the proceedings became highly likely, if not inevitable, and NCC should be ordered to pay DH's and AH's costs from that point.

2) DH and AH rely on the asserted assurance by social workers in or about May 2009 that NCC would pay AH's legal costs. AH told DH this immediately after the first assessment session. NCC should pay her costs incurred in the sum of just over £8,300.

3) NCC should pay the costs incurred by DH in the instruction of Dr. Khouja".

Determination

52. Turning now to my determination and dealing first with the applications for disclosure of the expert reports.
53. Given the determination of the substantive proceedings, I can identify no grounds on which disclosure of the reports should be ordered. They were prepared for the purposes of the proceedings. They were not disclosed to DH and AH pursuant to orders made during the course of those proceedings. There is no freestanding entitlement to disclosure once proceedings have concluded. Disclosure is part of the process by which the court ensures that a fair trial is effected. It is self-evident that, following the determination of proceedings, disclosure of evidence is no longer required for the purposes of the proceedings or in order to effect a fair trial.
54. It is self-evident in this case that disclosure can no longer be sought for the purposes referred to in DH's Solicitor's letter of 18^th March 2010, namely to enable the evidence to be tested within the proceedings. Rather, disclosure is sought by DH and AH for collateral purposes, namely to challenge, what they refer to as, the "toxic" comments in the reports. This, they contend, is necessary to enable them to clear their names. They also want to report Dr. McInerney to the GMC, and possibly to take libel proceedings.
55. None of these appear to me to provide, in the circumstances of this case, any ground for ordering disclosure. I cannot envisage any court giving permission to DH and/or AH to use the reports for the purposes of any such step. Now that the proceedings are at an end, there is no justification in seeking to challenge the contents of reports prepared for, and only for, the proceedings. I can, therefore, see no basis on which DH and/or AH could now successfully seek to challenge the orders made during the course of the proceedings.
56. In my judgment, for the same reasons, there is no basis for my ordering disclosure of AH's Social Services records. Additionally, because they were never adduced as evidence in the proceedings, I do not consider that I have power to order their disclosure.
57. Turning next to the issue of costs, I am satisfied on the evidence that AH was given no assurance that her costs prior to the appointment of the Official Solicitor would be paid. I accept the evidence of Ms. Hardman and Mrs. Ord to that effect, which is supported by the records produced from AH's own solicitors. Additionally, AH herself says that she was not in a fit state at the relevant time and was not taking things in.
58. Secondly, in respect of proceedings in the Court of Protection, I can identify no justification for departing from the general rule that there should be no order as to costs. There is nothing in NCC's conduct which would justify my departing from that rule. The proceedings have concluded without any determination. I am satisfied that NCC have acted properly throughout, in accordance with their obligations. There is no point at which they should have decided, as submitted by DH and AH, to discontinue the proceedings earlier than they did, namely following the receipt of Dr. Khouja's report.
59. I am also not persuaded that I should make any separate order in respect of Dr. Khouja's costs. These were part of the costs of the proceedings to which the general rule applies.
60. Thirdly, in respect of the costs of the proceedings under the inherent jurisdiction, I am also persuaded that NCC acted properly throughout in bringing the proceedings, in that, in so doing, they were acting in accordance with their obligations in respect of vulnerable adults. As the letter from DH's solicitor dated 18^th March 2010 makes clear, it was accepted that AH had said things to social workers which would lead professionals to have concerns. The letter specifically states that:

"Our client accepts that the premise of the proceedings is that the local authority believes that his wife's descriptions of how he has treated her may be true".

I can identify no point at which NCC should have decided to discontinue those proceedings earlier than when they did.

61. Accordingly, I dismiss the applications for disclosure made by both DH and AH. I also make no order as to costs.
62. Finally, given the clear risk of satellite litigation, I propose to order that neither the Official Solicitor nor the solicitors instructed by the Official Solicitor should disclose the non-disclosed documents or the Social Services records, insofar as they have them, to AH. If this were to happen, it would undermine the effect of my judgment and proposed order.