Andrew James Griffiths v Louise Tickle
| Jurisdiction | England & Wales |
| Judge | Lord Justice Warby,Lady Justice King |
| Judgment Date | 05 April 2022 |
| Neutral Citation | [2022] EWCA Civ 465 |
| Docket Number | Case No: CA-2021-000713 (formerly B4/2021/1432) |
| Court | Court of Appeal (Civil Division) |
and
In the Matter of a Disclosure by Counsel for the Appellant and an Application by the First Respondent
[2022] EWCA Civ 465
Lady Justice King
and
Lord Justice Warby
Case No: CA-2021-000713 (formerly B4/2021/1432)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Mrs Justice Lieven
Case No. DE19P00318
Royal Courts of Justice
Strand, London, WC2A 2LL
Lucy Reed (instructed by direct access) for the Applicant
Gavin Millar QC (instructed by Plexus Law) for the First Respondent
No other party appeared or was represented
Hearing date: 5 April 2022
Approved Judgment
This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 4pm on 5 April 2022.
This case was about a fact-finding judgment in Children Act proceedings held in private in the Family Court at Derby. The issue was whether it was appropriate in all the circumstances for that judgment to be published without anonymising the mother and father concerned. On 30 July 2021, after a further hearing in private, Lieven J, DBE held that it was. On 10 December 2021, after a hearing in public in November, we gave judgment upholding that decision and dismissing an appeal by the father: [2021] EWCA Civ 1882 (“the Main Judgment”).
We left over for separate consideration ancillary questions arising from the fact that in September 2021 Leading Counsel for the father, Mr Clayton QC, had disclosed some of the appeal papers to non-parties without the permission of the court (“the Disclosure”). The ancillary questions concerned the propriety of the Disclosure and an application (“the Application”) by the first respondent to the appeal (“Ms Tickle”) for permission to report aspects of a Note about the Disclosure which Mr Clayton had provided to the court on 21 October 2021 (“the Note”). The Application has since been extended to cover a witness statement filed later by Mr Clayton.
Having now had the benefit of argument on these questions we have reached the following conclusions.
First, the Application should be granted. Mr Clayton no longer opposes this, and he is right not to do so. It would have been premature to allow reporting of the Note before the court had dealt with the issue to which it was addressed. But that has now been done. The relevant proceedings have now taken place in public. The Note and witness statement have been deployed in the course of those proceedings. Both contain some private and personal information relating to Mr Clayton and his family but Ms Tickle has made clear that she does not wish to report those matters. She has also excluded from the scope of her application the identity of a solicitor who acted as an intermediary in the Disclosure. There is no reason why the remainder of these documents should not be subject to the ordinary principle of open justice. As Mr Clayton has recognised, the same applies to the skeleton argument for this hearing.
Secondly, our conclusions in respect of the Disclosure itself are these. This was a significant breach of the confidentiality regime that exists to safeguard the rights and interests of children in proceedings of this kind. There should have been no such disclosure without the court's permission. Mr Clayton should have realised this. A detailed investigation of the circumstances was necessary. That investigation has led us to the conclusion that there may have been a contempt of court. But in the event the harm was limited; this was a careless breach and not a deliberate one; Mr Clayton made a prompt apology; he will have to bear his own costs of the Application and these proceedings, which have been protracted; in all the circumstances these proceedings and this public judgment represent a proportionate and sufficient response. We do not consider it necessary or appropriate to take any further action.
The essential legal framework
The key statutory provisions are contained in s 12 of the Administration of Justice Act 1960 (“AJA”) and the Family Procedure Rules (“FPR”). We summarised the overall structure of the regime in the Main Judgment at [42]–[43]:
“42. Children Act proceedings are generally conducted in private, on the basis that this is necessary to protect the welfare of the child.
43. Section 12(1) AJA makes provision about the publication of information about such proceedings. This covers the publication of accounts of what has gone on in front of the judge, and the publication of documents such as transcripts of judgments, witness statements, reports, position statements, skeleton arguments or other documents filed in the proceedings. Publication of such information may be a contempt of court. But by virtue of s 12(4) AJA, it will not be punishable as contempt if it is authorised by rules of court. Rule 12.75 of the Family Procedure Rules provides for some kinds of communication to be authorised by default. And the Court can authorise a disclosure that would otherwise be at risk of amounting to a contempt of court.”
Most forms of dissemination whether oral or written amount to “publication” for this purpose: Re B (A Child) (Disclosure) [2004] EWHC 411 (Fam), [2004] 2 FLR 12 [72]–[73] (Munby J). So a disclosure of information that falls within s 12(1) AJA which is not authorised by the FPR or by an order of the court may be a contempt of court. The circumstances in which that will be so are discussed in Arlidge, Eady & Smith on Contempt (5 th ed) at paras 8–179 and following. I shall return to that topic.
The facts
The procedural history of the case is set out fully in the Main Judgment and needs no repetition. What follows may be read in the context of that account.
From 28 June 2021 Mr Clayton represented the father, Mr Griffiths, on the instructions of Geldards LLP. He appeared for Mr Griffiths at the hearing before Lieven J on 15 and 16 July 2021. Lieven J allowed an intervention at that hearing by a civil society organisation called Rights of Women (“RoW”).
On 26 July 2021, Lieven J circulated a draft of her judgment allowing publication of the fact-finding judgment. In doing so she was following the standard practice of circulating draft judgments in confidence under embargo to enable the parties to learn the outcome, prepare a draft order, and notify the court of any typographical errors so that the judgment can be perfected before formal hand-down. It is also an opportunity to embark on preparation of appeal papers. Mr Clayton was instructed to do this, with junior counsel.
On 27 July 2021, before hand-down and accordingly at a time when the draft judgment was confidential and subject to an embargo, Leading Counsel discussed the case over dinner with a senior solicitor with expertise in child care law who was known to him as a friend of his wife. Mr Clayton says the discussion was in very general terms. He outlined that an application had been made to publish a fact-finding judgment in a matter involving a child. He did not reveal the identities of the parties or any information relating to the private proceedings in the Family Court or the High Court. He asked the solicitor
“whether there were any organisations which focused on representing the interests of children and might be interested in intervening on the issue of publication of the judgment from the perspective of the child's right to privacy”.
She told him of the existence of Association of Lawyers for Children (“ALC”), a national association of lawyers working in the field of children law. Mr Clayton says the conversation went no further, and no documents were sent to the solicitor at that time.
On 30 July 2021, Lieven J's judgment was handed down. Publication of the fact-finding judgment was ordered but a stay was granted pending an application for permission to appeal. The appeal papers were filed on 20 August 2021. On 25 August 2021, Geldards ceased to act for Mr Griffiths. From then until 6 October 2021 he was acting as a litigant in person with Mr Clayton and junior Counsel providing him with advice and representation on a public access basis and, as we are told, pro bono.
On 8 September 2021, permission to appeal was granted by Baker LJ. Mr Clayton thereafter set about trying to find new solicitors for his client and, at the same time, exploring whether there might be a third-party intervention in support of the rights and interests of the child. Mr Clayton approached three firms, each of which declined to act for Mr Griffiths.
On or around 13 September 2021, Mr Clayton telephoned the solicitor/intermediary. He reminded her of their earlier conversation, told her that permission to appeal had been granted, and asked if she might consider assisting by forwarding an email to the ALC to see if it might wish to intervene. She agreed to do so.
On 14 September 2021, Mr Clayton sent her two documents. These were the Appellant's skeleton argument seeking permission to appeal, in unredacted form, and the order of Baker LJ granting permission to appeal. He did this by forwarding an email and attachments which he had previously sent to solicitors whom he had tried to interest in representing Mr Griffiths.
On 5 October 2021, solicitors for the ALC alerted the parties to the appeal to the fact that it had received this documentation from a member of the ALC who considered that they may wish to intervene in...
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