England and Wales High Court (Family Division) Decisions

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

		Royal Courts of Justice
		13th February 2014

See also: [2014] EWHC 502 (Fam) and [2014] EWHC 1035 (Fam)

MR JUSTICE HOLMAN:

1. I am currently hearing an application for financial relief after divorce. This is an application to which rule 27.10 of the Family Procedure Rules 2010 applies. That rule provides as follows:

"27.10 Hearings in private

(1) Proceedings to which these rules apply will be held in private, except –

(a) where these rules or any other enactment provide otherwise;

(b) subject to any enactment, where the court directs otherwise."

2. At the outset of this hearing I indicated that I was provisionally - I stress "provisionally" - of the view that this was a case in which I should "direct otherwise". It is my view that rule 27.10 does not create a presumption that hearings of this kind should be held in private, but merely a starting point. There is a huge legitimate public interest in open justice in family cases, just as much as in criminal, or in civil cases. I mention that I gave to both leading counsel the opportunity at the very outset of the hearing to object or submit that the case should not be heard in public. Neither chose to do so. As a result, journalists have been present throughout most of this hearing and currently.
3. More specifically, the parents of the wife, namely, Mr Mike Luckwell and Mrs. Mary Luckwell have themselves been present throughout almost the entire hearing so far. The only exceptions have been brief periods when, for one reason or another, they were not able to be present. I wish to stress, however, and this is very important indeed, that even if I had not decided to hold the present hearing in public, I would unquestionably have exercised a discretion not only to permit, but indeed positively to invite, each of Mr Mike Luckwell and Mrs. Mary Luckwell to attend and be present if they wished to do so. That is my invariable practice in cases of this kind since, in my view, family cases particularly intimately concern close family members. That is especially the situation in the present case when it is crystal clear that the entirety of the assets under discussion in this case have derived originally and ultimately from one or other or both of the wife's parents, namely, Mr Mike Luckwell and Mrs. Mary Luckwell.
4. So the position at the moment is that this is a hearing being conducted fully in public and each of the wife's parents are currently present in court. Mr Lewis Marks QC is about to commence his cross-examination of the wife herself. He has now made an application that for part of that cross-examination, which he estimates as about the first third of it, I should now exercise a discretion to exclude the wife's father, Mr Mike Luckwell, from being present in court whilst that part of the cross-examination takes place. Interestingly, neither Mr Marks QC nor his exceptionally diligent and experienced junior, Miss Marina Faggionato, have been able to identify any rule of the Civil Procedure Rules or any passage in The White Book which makes any comment upon, or reference at all to, the presence of one prospective witness in the courtroom while another witness gives evidence.
5. Within the Family Procedure Rules themselves, there is a rule, namely, rule 27.11, which deals with attendance at private hearings, but that rule only expressly applies "when proceedings are held in private", which, for the reasons I have given, the present proceedings are not. When the proceedings are being heard in private, rule 27.11(2) and (3) make reference to who may or may not be present in the courtroom. Rule 27.11(2) provides:

"When this rule applies, no person shall be present during any hearing other than [a range of listed people]."

6. This includes at (e) "a witness" and at (g) "any other person whom the court permits to be present". Rule 27.11(3) then provides:

"At any stage of the proceedings the court may direct that persons within paragraph (2)(f) shall not attend the proceedings or any part of them …"

7. Paragraph (2)(f) refers, however, to "duly accredited representatives of news gathering and reporting organisations". Rule 27.11(3) does not refer back to persons falling within paragraphs (e) nor (g). To my mind, for the purposes of rule 27.11(2), the reference in subparagraph (e) to "a witness" is clearly a reference to a person during the actual time when he or she is within the courtroom for the purpose of actually giving evidence as a witness. If such a person is permitted to be present in the courtroom during other parts of the hearing, whether before or after he or she gives evidence, then it is pursuant to paragraph (g) as "any other person whom the court permits to be present". So it does not, in the end, seem to me that any help at all is derived from those parts of rule 27.11.
8. Mr Marks helpfully drew my attention to rule 27.11(6), which provides:

"This rule does not affect any power of the court to direct that witnesses shall be excluded until they are called for examination."

9. That subrule clearly identifies or signposts the existence of a "power of the court to direct that witnesses shall be excluded until they are called for examination". But it does not indicate the source of that power and, still less, the circumstances in which, or test by which, it should be exercised.
10. The assiduous researches of counsel have only identified a single authority at all germane to this topic, namely, Tomlinson v Tomlinson [1981] 2 FLR 136, a decision of the divisional court of the Family Division. That authority was an appeal from a procedural decision of a magistrates' court hearing an application to vary, by reducing, the amount of a magistrates' court maintenance order. On the facts of that particular case, no application at all had been made to exclude the man with whom the wife concerned was said to be cohabiting and by whom she was said to be being maintained. But when the wife, who was acting in person, sought to call him as a witness to rebut the suggestion that they were cohabiting or that he was maintaining her, the magistrates refused to allow her to do so, on the basis or grounds that he had, meantime, been sitting in the courtroom. It is hardly surprising that the divisional court very clearly and roundly criticised that decision of the magistrates, since the magistrates had been sitting in public and there had not been the slightest direction or indication from the court that the man should be excluded from the courtroom during the course of the earlier evidence.
11. During the course of his judgment, Sir John Arnold, President, made interesting historical reference to some earlier direction of Sir John Gorell Barnes, President, as long before as 1908. It is clear that by 1967, in the view of the editors of the then Supreme Court Practice, that particular practice and direction had "fallen into desuetude". At that time, that is, 1967, the editors of the Supreme Court Practice apparently commented:

"This practice has fallen into desuetude and the present practice in probate and divorce suits is to allow the exclusion of witnesses to depend on the discretion of the judge, either on the application of counsel or at the judge's own instance."

12. Apparently, in the Supreme Court Practice current in 1979 (when Tomlinson was being heard) there was a note that:

"On the application of either party the court may at any time order all witnesses on both sides, other than the one under examination, to withdraw, but not to leave the court again after evidence so as to communicate with other witnesses before they give evidence."

13. Apparently, however, there is no longer any note to that effect nor, as I have said, bearing on this topic at all in the current White Book.
14. What Sir John Arnold had to say on the topic is at the end of pages 139-140, where he said:

"It seems to me that the right course is this: witnesses should not be under any obligation to leave the court, except where an order is made excluding them; that the proper course for justices to pursue, if an application is made to them, would be to exclude the witnesses, unless they were satisfied that that would not be an appropriate step to take …"

15. Earlier in his judgment, Sir John had commented, towards the end of page 138:

"It would be very bad practice that there should be differing rules pertaining in different courts. Therefore, it is plainly desirable that there should be a degree of consistency in the matter."

16. That seems to me, with respect, to be clearly right. I cannot see that there can be any rational grounds for distinction, depending on whether a case is being pursued in the magistrates' court (now family proceedings court) or in the civil courts, for instance, the county court or indeed civil divisions of the High Court, or in this court. In any such court, and indeed in any class of case, once the court is sitting in public the broad approach to the exercise of discretion should be the same. Sir John Arnold put it that "the proper course for justices to pursue … would be to exclude the witnesses, unless they were satisfied that that would not be an appropriate step to take …" Speaking for myself, and respectful of that decision but mindful that it is not binding upon me, my own feeling is that the approach should be the other way round. If a court is, in fact, sitting in public, and if an application is made to exclude a witness or witnesses, then the court may exclude them. But it should only exclude them if the court is satisfied, on the facts and in the circumstances of the particular situation, that it would, for good reasons, be an appropriate step to take. The threshold may not be a high one. The reason may not need to be a very cogent one. But if a court is sitting in public, no one who wishes to be present should be excluded, not even a witness, without some good reason for doing so. I propose to apply that approach and direct to myself in that way in making the present ruling.
17. As I have already mentioned, it is patent in this case that all the current assets of these parties, which, in fact, are almost entirely currently owned and in the hands of the wife, have been derived from the considerable generosity of her own parents. Further than that, the current situation is that her own parents are currently supporting the wife and the children by payments in excess of £100,000 a year when the payment of school fees is included. The greater part of those payments is being made by the wife's father, but substantial payments are also being made by her mother. Some years ago, the father voluntarily gave to the wife a very valuable house in Connaught Square, London W2, which currently has an equity of about £6.7 million. Effectively, it is the equity in that house which is the only asset of significance in this case. Part of the context of the whole case and of that gift is that the husband signed a prenuptial agreement and, later, two supplementary agreements, in all of which he agreed, in effect, that in the event of separation and divorce he would make no claim at all against the assets of the wife. The governing prenuptial agreement clearly recites that each of the husband and wife "specifically acknowledges and agrees that the marriage would not be taking place without this agreement having been negotiated and signed by each of them". Further, it is the case of the wife that there would have been no question of her father giving Connaught Square to her, or indeed money with which to buy earlier properties, unless the husband had first signed not only that prenuptial agreement but also each of the supplemental agreements. That is clearly a very significant feature of this case.
18. Separately and distinctly, but in conjunction with the fact of the prenuptial and supplemental agreements, the wife and her father both say that at the time of the transfer of Connaught Square to her she gave to him a promise that she would never sell it, charge it or raise money upon it, at any rate without his consent. It is at the moment stated by the father in a written statement that, in the event that the wife is now effectively forced to sell or even raise money secured upon that property, he will completely terminate all the payments that he currently makes for the support of his daughter and grandchildren and for their school fees. That, of course, may have a profound impact upon the outcome of this case; for if what he says is true, it will mean that if this house is sold or even mortgaged the support for the wife and children and payment of their school fees will be very significantly reduced, even if the wife's mother takes a more generous view and continues, herself, to provide some funding. The implications of that are, of course, that, in that event, provision will have to be identified from the equity of Connaught Square not only for housing needs but also for the long-term income needs of the wife and children, including school fees.
19. The husband has already given evidence. During the course of his evidence he did agree that, before the date of the actual transfer of Connaught Square to him, his wife told him that she had promised her father that she would not sell it or mortgage or otherwise charge it without his consent. That much now appears to be common ground. There are, however, wider areas where the evidence at the moment is potentially in conflict or, at any rate, less clear as to what discussions may have taken place more directly between Mr Mike Luckwell and the husband and/or conversations taken place in the hearing of Mrs Mary Luckwell.
20. Further, it is plain that in this very anxious situation there is a need to have some exploration as to the true intentions of the father, Mr Mike Luckwell, which, in turn, may involve consideration of his motivation when he extracted whatever promises he did extract. There is also another issue in the case which requires further illumination. It is the fact that some time after the transfer of Connaught Square to her, the wife did, apparently voluntarily, make some very substantial payments back to her father and, separately, to her brother Adam so as, as it was put, "to level up with him". I, at this stage of the case and evidence, accept that that is a topic which Mr Marks QC, on behalf of the husband, may wish legitimately to explore with each of the wife and her father.
21. Mr Marks, in making his application that Mr. Luckwell should now be excluded during the part of the cross-examination when these and related issues are explored, has said that it is important that there should be the appearance of justice to his client, the husband. Interestingly, Mr Charles Howard QC, in opposing the application, stresses that it is of importance to the appearance of justice to his client that her father should not be excluded from any part of the hearing. I, for my part, am less focused for the purposes of this particular ruling on the appearance of justice to either of these parties than on the quality, purity and reliability of the evidence which I have still to hear. There are potentially issues of fact here upon which the evidence is, to my mind, still obscure. To my mind, the evidence of each of the wife and, more particularly, her father will have greater value as evidence if the father is not present while she gives the relevant part of her evidence and is not able to hear at the time what she has said before giving his own evidence.
22. Mr Charles Howard QC has submitted that it is odd, if not perverse, that everyone in the world is permitted to be in the courtroom and, in particular, the press, except the one person who is close to the heart of this case and to whom I have very sincerely extended a very warm invitation to attend, namely, Mr Mike Luckwell. But, of course, Mr Mike Luckwell is in a different position from everybody else in the world and in a different position from the journalists, because he, unlike them, is himself going to be a witness of fact on important issues in this case. I readily recognise his very, very genuine and legitimate interest in the outcome of this case and indeed in all that takes place in the courtroom. I have welcomed him in. I am very, very glad that he and Mrs Mary Luckwell have been present so far for virtually the whole of this hearing. I hope, apart from this short period, that they will continue to be present. I am genuinely appreciative of the close attention that each of them has patently been paying to these proceedings. I have many times begged these parties to try to settle this case. I have now afforded several opportunities by adjournments in order to enable them to do so, and I am perfectly aware that one of the realities of this case is that decisions voluntarily made by Mr Mike Luckwell could make it more or less easy for his daughter, the wife, to find a way through to settlement. So there is no doubt that he is somebody who is, to put it colloquially, "centre stage". But it does seem to me, on balance, that the evidence of each of the wife and, later, of Mr Mike Luckwell is likely to be of greater value as evidence and to carry greater weight if he is not present while she gives her evidence on the topics that I have outlined.
23. For those important reasons, but reversing the onus of Sir John Arnold in the passage I have already quoted from Tomlinson v Tomlinson, I am of the positive view that it would be much more appropriate that I temporarily exclude Mr Mike Luckwell from the courtroom. I will keep a very close eye on the course of the questioning, and the moment Mr Marks starts asking questions on topics from which it does not seem justifiable to exclude Mr Luckwell, he will be immediately invited back.