G v G
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Roberts |
| Judgment Date | 24 April 2015 |
| Neutral Citation | [2015] EWHC 1512 (Fam) |
| Court | Family Division |
| Date | 24 April 2015 |
| Docket Number | Case No: FD09D05089 |
[2015] EWHC 1512 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Roberts
Case No: FD09D05089
Mr Martin Pointer QC and Mr Simon Webster (instructed by Messrs Farrer and Co) for the Applicant
Mr Andrew Green QC, Mr Tom HickmanandMr Richard Sear (instructed by Messrs Pinsent Masons) for the Respondent
Hearing date: Friday 24th April 2015
A. The applications before me
There are before me two applications made by a former wife in financial remedy proceedings. They were issued on 4 and 25 March 2015. By her applications, she seeks orders which would prevent her former husband's legal team (leading and junior counsel, and solicitors) from continuing to act for him at a forthcoming hearing in July this year before Moor J. She is also seeking redaction of part of his evidence in the proceedings and an injunction to prevent him from relying upon the use in that hearing of material in respect of which she claims legal advice privilege ('LAP').
Her former husband, for his part, has issued his own application dated 15 April 2015. He seeks a declaration that the material which his former wife seeks to exclude is not privileged and can be referred to as evidence within the substantive proceedings.
Before dealing with the merits of these applications and the legal arguments which I heard over the course of a full day, I shall need to set out the background and the circumstances in which the current dispute arises.
Mrs G has been represented in these proceedings by Mr Martin Pointer QC and Mr Simon Webster. Mr Andrew Green QC with Mr Tom Hickman and Mr Richard Sear have appeared on behalf of Mr G. Mr Sear is junior counsel in the ongoing matrimonial proceedings. Until recently, he was being led by Miss Deborah Bangay QC ('DBQC'). She has now withdrawn from the case in circumstances to which I will come. Mr Sear's position remains vulnerable in the context of the injunctive relief which is sought by Mrs G. For present purposes, it will be convenient to refer to the parties as 'H' and 'W'. Each should know that I intend no disrespect to either in adopting this form of shorthand.
B. The background
H and W were married to one another in 1996 after a lengthy period of cohabitation. Their relationship endured for some 22 years during the course of which three children were born to this couple. In the context of divorce proceedings which were issued in 2009, they were able to resolve all issues arising in the context of the pending ancillary relief proceedings (as they were then known). On 1 June 2010, Deputy District Judge Marco approved the terms of a consent order which provided W with a comprehensive financial award on the basis of a clean break between the parties. The global wealth available for distribution between the parties at that time was said to be in the region of £15.7 million. W's settlement was worth slightly less than half of that sum.
Some four years later, on 23 July 2014, W issued a notice seeking permission to appeal out of time against the consent order alleging material non-disclosure on the part of H at the time of the 2010 financial negotiations. In essence, her case in the substantive proceedings (which are due to be heard by Moor J between 6 and 8 July this year) is that she did not know until May 2014 that H (as opposed to their three children) was the primary beneficiary of two family trusts. At the heart of her case in relation to the alleged non-disclosure lie the central allegations that (a) he failed to disclose the existence of two trusts; (b) she was unaware at the time of the agreement which underpinned the consent order that the trusts had recently received payments amounting to just over £4 million; and (c) that he was the primary beneficiary under the terms of both trusts.
H denies the non-disclosure allegations. His case is that there is no substance whatsoever to W's allegations and he has filed detailed written evidence setting out his case in relation to precisely what he disclosed and when. Further, and of central importance to the matters which I have to decide, he says that W has failed to act promptly in bringing her appeal. Her allegedly inexcusable delay in progressing matters is another ground on which he relies in his opposition to any attempt to re-open these matters now. The material which lies at the heart of the application before me is an email which suggests that W was, or may have been, alive to potential issues of non-disclosure as long ago as September 2012 yet she failed to take any action until almost two years later. Leaving aside the factual dispute in relation to his disclosure in the early part of 2010, the delay in itself is another reason why he says her present attempt to overturn the 2010 consent order should fail in limine.
The central issue which I have to decide is whether or not the contents of an email dated 20 September 2012 which was sent by DBQC to Julian Ribet, a partner with Levison Meltzer Pigott LLP (solicitors) ('LMP') were confidential and/or privileged. W's case is that the contents of the email were (and remain) privileged and this court can and should prevent the use of the material at the forthcoming appeal hearing and require H's entire legal team (who are now privy to that information) to withdraw from the case. H says no such privilege exists and he is entitled to use the email and the information within it in support of his case before Moor J in July 2015.
During the course of extensive legal argument, I have been referred to a significant number of authorities on the general principles which I should apply in my determination of the dispute between the parties in relation to the admissibility of this evidence. On behalf of H, Mr Green maintains that W's current application represents an extensive and wholly unwarranted extension of the general law in this area and that I should be cautious before expanding the scope of well-established legal principles. It seems to me that, before turning to consider the law, the first step I must undertake is an examination of the facts and, in particular, those facts which gave rise to the creation of the email in respect of which privilege and/or confidentiality is asserted on behalf of W.
C. What happened during September 2012 ?
In her statement in support of her applications to this court dated 17 March 2015, W states that she only became aware of H's alleged non-disclosure at the end of May 2014 when she saw a letter sent to her matrimonial solicitors (Farrer & Co) by another firm of solicitors acting for the trustees of the settlements (Speechly Bircham LLP). That letter is dated 29 May 2014. She says that in 2012 (she does not say when), some two years or more after the consent order was approved by the court, she wanted legal advice. She does not descend into any more detail than that in relation to the nature of the advice she was seeking or the reasons which had prompted her to seek such advice.
She states that in September 2012 she had spoken to a friend of hers called Debra Spurway. It seems that these two ladies had been friends for some 35 years having known each other from their school days. Miss Spurway had also known H for some 17 years and had introduced him to the accountant he employed after the sale of one of his companies. Thus, whilst a close friend of W's, she was also familiar with the family and knew something about H's business affairs. Miss Spurway's evidence suggests that she had spoken with W 'a few times' during mid-September 2012. She considered her conversations with W to be 'absolutely private and confidential'. She does not provide any further detail as to the substance or subject matter of those conversations but she had been keen to provide W with help 'as her friend'. Miss Spurway appears to have spoken to another friend of hers called Patricia Ledwith who had told her that she knew DBQC (whom she described as 'a top family lawyer'). Having spoken again with W, Miss Spurway asked Miss Ledwith to put her in touch with DBQC.
There is nothing further in the papers to assist me in relation to the substance of the conversation which DBQC and Miss Ledwith must have had within the next 24 hours but it is clear that they did indeed speak. I know that because Miss Spurway tells me that Miss Ledwith arranged for her to speak to DBQC. Miss Spurway's evidence is that the conversation which took place between them was short. It appears to be common ground that DBQC and Miss Spurway did not know one another and had no previous communications prior to the introduction effected by Miss Ledwith. Miss Spurway tells me in her statement dated 1 April 2015 that she considered her conversation with DBQC to be 'wholly private and confidential'. She says that she mentioned during the course of that short conversation the name of the family company and that she 'discussed sensitive and private matters relating to [W] and her family which I understood Miss Bangay QC would not share with anyone else'. Pausing there, and on the assumption that a court were to find this to be an accurate representation of what transpired during the course of that conversation, it would follow that unless she received contrary instructions, DBQC herself would not have been at liberty to divulge to any third party (including any solicitor whom W might subsequently instruct) the factual content of that discussion.
The only details which I know about the short conversation between Miss Spurway and DBQC appear in paragraph 7 of Miss Spurway's statement. It is clear that there was some discussion about the possibility of DBQC representing W because Miss Spurway recollects her saying that she herself did not accept instructions on the basis of the direct...
To continue reading
Request your trial
-
ZS v FS
...Graham & Jones[2006] EWHC 158 (Ch), [2006] 2 All ER 599, [2006] PNLR 23. G v G (financial remedies: privilege: confidentiality)[2015] EWHC 1512 (Fam), [2016] 1 FLR Great Atlantic Insurance Co v Home InsuranceCo [1981] 1 WLR 529, [1981] 2 All ER 485, [1981] 2 Lloyd’s Rep 138. HRH Prince Jefr......
-
KG (Proposed Appellant) v LG (Proposed Respondent)
...Wife sought to exclude the emails from the case. Roberts J rejected the application in a detailed and comprehensive judgment now reported as G v G [2015] EWHC 1512 (Fam). 47 Mrs DS's email said that Miss Bangay had mentioned that Mr Ribet can decide if there is " a case for litigation" and ......