Jean Bernadette Stephenson v Melvyn Douglas Stephenson
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,MR JUSTICE WALL |
| Judgment Date | 09 May 1996 |
| Judgment citation (vLex) | [1996] EWCA Civ J0509-3 |
| Court | Court of Appeal (Civil Division) |
| Date | 09 May 1996 |
| Docket Number | CCFMI 95/1766/F |
[1996] EWCA Civ J0509-3
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM CARLISLE COUNTY COURT
(HIS HONOUR JUDGE BROWN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Beldam
Mr Justice Wall
CCFMI 95/1766/F
MISS B GOODMAN (Instructed by Messrs Burnetts, Carlisle, CA1 1ES) appeared on behalf of the Appellant.
MR G LAZARUS (Instructed by Messrs Bleasedale & Co., Whitehaven CA28 7NQ) appeared on behalf of the Respondent.
( )
Thursday, 9th May 1996
The appellant, Mrs Jean Bernadette Stephenson, appeals with the leave of His Honour Judge Brown against an order for discovery made by the judge on 13th November 1995 in the Carlisle County Court. The judge made the order on appeal from the decision of Deputy District Judge Forrester allowing the appeal and ordering the petitioner to answer certain interrogatories which had been served by the respondent, Mr Melvyn Douglas Stephenson. He had sought discovery by way of interrogatories in proceedings by the appellant for a rehearing of her application for ancillary relief under Order 37, rule 1 of the County Court Rules.
The parties were married in May 1965. They had three children, now all grown up. They separated in January 1993. In June of that year, the appellant petitioned for divorce claiming ancillary relief under the Matrimonial Causes Act 1973. In March 1994, the appellant gave notice of an intention to proceed with an application for payment of a lump sum or property transfer order. The only substantial asset of the family was their home 4 Peck Mill, St Bees in Cumbria.
A decree nisi was pronounced on 13th April and on that day, or shortly after, the respondent made an offer to settle the appellant's claim by payment of £15,000. The appellant's solicitors felt unable to advise her whether this was a sufficient sum until they had seen a full statement of the respondent's means on affidavit. An order was made in the Carlisle County Court on 21st April 1994 for the respondent to file an affidavit of his means within 14 days. A week later, the appellant's solicitors wrote accepting the terms proposed by the respondent provided that payment was made within 14 days. On 17th May and on 23rd May, form N1 was completed by the parties setting out in that form a summary of their means and confirming that the principal family asset was the former family home. This statement was signed by the appellant and by solicitors acting for the respondent on 23rd May.
On 3rd June 1994 the decree became absolute and, on the 14th, a consent order was made by District Judge Holloway giving effect to the agreement between the appellant and respondent that the respondent should pay £15,000 in return for a clean break and that neither party should be entitled to make any further application. There were certain subsidiary aspects of the order but it is unnecessary for the purposes of this judgment to set them out.
In September 1994 it came to the appellant's notice that the respondent had agreed to voluntary redundancy after his 29 years employment with Albright & Wilson Ltd. and that he was due to receive a redundancy payment of nearly £26,000 and a comminuted lump sum from his pension entitlement of £30,000. Precisely when the respondent first appreciated that he might become entitled to these substantial additional resources has not been vouchsafed by him in his affidavit in this case. But from a letter dated 21st June 1994 from his employers it is clear that discussion had taken place prior to that date. Accordingly, it is a reasonable inference that he must have been aware of the likelihood of the receipt of these additional resources before 14th June when the consent order was made. The appellant told her solicitors what she had heard and on 4th January of 1995 she issued an application for a rehearing of her application for ancillary relief in effect seeking to set aside the consent order supported by an affidavit stating that she had been told by a mutual acquaintance that the respondent had received approximately £65,000 on being made redundant from his employment.
In her affidavit, the appellant admits that before accepting the offer of £15,000 she had been told by her solicitor that she would not be able to make any further application for financial provision no matter what happened. She further admits that early in 1994 she had heard that there were likely to be redundancies at the respondent's place of work, that he had been off work following a hip replacement operation but that he intended to return to work. She claims a rehearing of her application for ancillary relief on the ground that the respondent had failed to make full and frank disclosure of his assets and that, in accordance with the observations of Lord Brandon in Jenkins v Livesy [1985] 1 AC 424 at page 443, as the respondent had failed to disclose a material fact the whole basis on which her consent order was agreed was undermined and that the order should be set aside and her application reheard.
The respondent is apparently concerned to show that the appellant must have appreciated the prospect of his receiving such sums as redundancy payment and commutation of his pension rights and presumably, therefore, that his failure to disclose their imminent arrival was not a failure to disclose material facts. In aid of this strategy he sought to administer the interrogatories which are in issue in this appeal.
The first two interrogatories were directed to the appellant's knowledge of the company pension scheme and the possibility that the respondent might have the opportunity of redundancy. These interrogatories the appellant answered, they being matters within her own knowledge. She answered that she was aware that the respondent might benefit from a company pension scheme but not aware that he had or might have the opportunity of taking redundancy. By the remaining four interrogatories, the respondent seeks to discover whether the appellant discussed the possibility of the respondent's pension or redundancy benefits with her solicitor and what advice she was given by him and the instructions which she gave him. These interrogatories the appellant objects to answering on the grounds that her discussions with her solicitor were confidential and protected by legal professional privilege. The District Judge refused the interrogatories but Judge Brown was persuaded to allow them on the grounds that the circumstances of the court's inquiry in deciding whether to allow a rehearing of the appellant's application required an exception to be made to the otherwise strict rule protecting confidential communications between a solicitor and a client from disclosure.
In reaching his decision, the judge was influenced by a note to Order 24, rule 5 appearing in the annual practice and dealing with legal professional privilege and discovery. Under paragraph 24/5/6 Legal Professional Privilege, the note says:
"Legal professional privilege does not protect from production documents by which legal advice is sought or given, if the question whether, and in what terms, advice was sought, and the nature of such advice are themselves material facts, as e.g. upon an application under the Limitation Act 1939, s 2D, as added by the Limitation Act 1975 (see now 1980 Act) Jones v GD Searle & Co. Ltd. [1978] 3 All ER 654 CA."
In my judgment, this note gravely overstates the effect of the decision of Jones v GD Searle & Co. Ltd., a decision which was expressly confined by Roskill LJ, who delivered the leading judgment, to a claim for discovery of the nature of the advice given to a plaintiff who asked the court to extend the period in which an action could be brought and which was given under the provisions of the Limitation Act, allowing the...
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