Quick updates on procedural issues for those dealing with disputes - Winter 2021/22
Read the full articles by clicking on the drop downs below:
- Open Justice Principle – No Right Of Access To Documents In Advance Of Hearing
R. (ON THE APPLICATION OF YAR) V SECRETARY OF STATE FOR DEFENCE  EWHC 3219 (ADMIN)
The open justice principle does not require early disclosure to non-parties of documents prepared for final hearings.
The open justice principle is a key feature of the English civil court system. Courts should allow access to the decision making process, so that confidence in the integrity of the judicial process is maintained. Accordingly, hearings and trials are conducted in public, and documents setting out the claim and defence are publicly available. In some circumstances, the open justice principle may require that non-parties are given access to other sensitive documents that are relied on in court, such as witness statements.
Depending on one's perspective, the open justice principle is either a useful tool for acquiring information that would otherwise be outside the public domain, or a concerning feature of English civil litigation. In R. (on the application of Yar) v Secretary of State for Defence  EWHC 3219 (Admin) (Yar), the High Court provided clarification on the extent of the open justice principle.
The BBC applied to obtain copies of three witness statements filed by the Defendant (D) in proceedings between him and the Claimant (C).
C brought an application for judicial review, in relation to events that took place in February 2011 when four members of his family were killed by British armed forces in Afghanistan. C claims that those deaths should have been the subject of investigation under article 2 of the European Convention on Human Rights, and that no sufficient investigation was undertaken.
The BBC applied for three witness statements to be disclosed, either pursuant to the court's power under CPR 5.4C (2) to order copies of documents be provided to non-parties from the court record, or by an order in exercise of the court's inherent jurisdiction. D opposed the application in respect of two of the three witness statements.
KEY LEGAL POINTS
The court's power to require litigation documents to be provided to non-parties is an expression of the open justice principle. According to the leading authority on the open justice principle, there are two "principal purposes" for it. These are to enable public scrutiny of the way courts decide cases, and to enable the public to understand how the justice system works and why decisions are taken.
Swift J rejected the BBC's submission that an additional purpose is making information available for journalistic activity. The basis of the open justice principle is that ordinarily courts should work in public. Written documents should be publicly accessible if they have been placed before the judge or referred to in open court. However, whether this default position applies will depend on the specific circumstances.
Yar was distinguished from previous cases, where requests for documents had been made after a final hearing. Here, the final hearing was still some months away, and it was held that the court should not generally make witness statements prepared for use at a trial publicly available before the witnesses give evidence. There is no requirement or justification for advance disclosure of evidence in anticipation of a final hearing, even if the non-party is a journalist.
- Drafting "Unless Orders" - Court Of Appeal Guidance
"Unless orders" are a form of court order that requires something to be done within a set timescale and then go on to specify automatic consequences for failing comply. For obvious reasons such orders need to be very clear. In Poule Securities the order was expressed in unusual terms and the party addressed by the order argued that the timescale was not clear. The Court of Appeal disagreed and has given helpful guidance on drafting such orders.
This decision shows that whilst Practice Direction (PD) 40B provides examples of wording for drafting unless orders, if an unless order is drafted differently (as it was in this instance), provided the order is clear and unambiguous, so as not to leave it open to interpretation, the court will not alter its meaning. It is also a reminder that unless orders should generally comply with the relevant CPR provisions.
This case concerned a dispute about the terms on which a property was bought and held. The Defendants (D) occupied the property and the Claimants (C) claimed possession. Following C's failure to disclose the conveyancing file relating to the property pursuant to a disclosure order (Disclosure Order), D applied for an unless order (Order). The Order stated that C's defence to the counterclaim brought by D would be struck out "unless by 7 days of this order" C complied with the Disclosure Order. C issued an application to have the Order set aside. By the time a hearing took place, C had not done what was required by the Order. C's application to have the Order set aside failed and the claim, defence and counterclaim were struck out. C was ordered to pay Ds costs of the claim. C appealed the decision, challenging the interpretation of the words "by 7 days of this order". The appeal was dismissed.
KEY LEGAL POINTS
- An unless order is an order made by the court that, unless a party performs an obligation by a specified date or within a period of time, they will be penalised by the sanction set out in the order (the court's power to do this is contained in CPR rule 3.1(3)).
- The appeal considered the true interpretation of the Order, specifically whether the period for compliance should start from the date of service of the Order, rather than the date when the Order was made. If the former, then C would not have been in breach at the hearing on 10 December 2018. In its decision making, the court considered CPR rule 2.9 and PD 40B paragraphs 8.1 and 8.2.
- CPR rule 2.9 provides that court orders imposing a time limit for performance of an obligation had to express the last date for compliance as a calendar date, where practicable. PD 40B para 8.1 reflects this, and para 8.2 requires that certain wording (albeit "suitably adapted") must be used to set out the consequences for failure to comply. Two examples are given (PD 40B states example 1 should be used wherever possible):
- " (1) Unless the [claimant][defendant] serves his list of documents by 4.00 p.m. on Friday, January 22, 1999 his [claim] [defence] will be struck out and judgment entered for the [defendant][claimant], or
- (2) Unless the [claimant][defendant] serves his list of documents within 14 days of service of this order his [claim] [defence] will be struck out and judgment entered for the [defendant][claimant]."
- In this case, although the Order was not in the form of either of the examples above, the court held that the CPR and PD did not demand that an order drafted differently from the provisions must be interpreted in a particular way. Specifically, it did not mean that the Order could be interpreted to mean the 7-day period for compliance ran from the date of service when the order did not say that. Further, it did not justify altering the clear meaning of the Order to bring it into one of the examples. However, the court did state that why the Order was made on different terms to those set out in the CPR and PD, would be potentially relevant for an application to vary it or to seek an extension of time, but C had not applied for either. The court also reiterated the importance of clarity in unless orders, but did not deem the Order to be ambiguous; therefore it was not open to interpretation as argued by C.
- Recording Proceedings Without The Court's Consent May Have Serious Consequences
A warning to all parties to legal proceedings: a recording of remote court proceedings must not be made without prior consent being obtained from the court. Failure to obtain consent may result in the parties, and their solicitors, being in contempt of court.
Since the start of the Coronavirus pandemic, remote hearings have become prevalent. Although we are starting to see the courts open their doors to more in-person hearings, remote hearings are here to stay with some courts opting for a hybrid approach. Recent case law has provided guidance on the importance for parties of complying with formalities when attending remote hearings. Under no circumstances may the hearing be recorded unless the court has granted specific permission.
CPR 39.9 provides that no one may use unofficial recording equipment in any court or judge's room, without the permission of the judge. Doing so may constitute a contempt of court under Section 9 of the Contempt of Court Act 1981, with potentially serious consequences for those at fault.
In the matter of JR & B Farming Limited v Hewitt  (Hewitt), HH-Davis-White QC issued a clear warning to parties and transcription services that they must follow the correct procedure if a record is to be made of remote hearings. Despite the parties failing to obtain an order from the court for a recording to be made for later transcription, HH-Davis-White QC granted retrospective permission for the recording, but warned in his judgment that others should not expect as much leniency from the court in the future.
Despite this previous judgment, the claimant's external transcribers in Business Mortgage Finance 4 Plc & Ors v Hussain & Ors  (Business Mortgage Finance) had made numerous recordings of various hearings that had taken place. Although the court was aware that a transcript was being taken, the judge was not aware that a recording was also being made and no permission for the recording had been sought. Retrospective permission was granted in this case, despite the judge being surprised that the solicitors had taken no effective steps to seek permission, following the recent judgment in the Hewitt case.
In granting retrospective permission for the recordings, the court took into account that:
- the audio recordings were taken in order to allow the transcriptions to take place and had not been used for any other purpose or published or disseminated in any way;
- had the court been asked for consent, it would have been granted;
- no harm had arisen as far as the other parties to the proceedings were concerned; and
- while it was important that the integrity of the court's process was properly protected, the court was satisfied that the claimant and their solicitors had taken all appropriate steps since finding out about the unauthorised recordings to put the matter right, to make the retrospective application and to put in place protections against a similar breach occurring in the future.
It is also important to note the potential implications that the recording of hearings, without the court's consent, can have for solicitors. Where a party has made a recording of a hearing without permission, the court has jurisdiction to report the solicitors involved to the Solicitors Regulation Authority.
KEY LEGAL AND PRACTICAL POINTS
Parties involved in legal proceedings must not make or publish any visual or audio recording of a hearing without the court's permission. This is so even where the hearing is held in open court. It is important to remember that this prohibition encompasses not only an audio or video recording, but also taking screenshots or photographs of the proceedings and providing live streams or otherwise transmitting/ sharing the proceedings.
If a party is seeking to appoint an external transcriber to produce a live-time transcript, check with the transcriber, prior to the start of the proceedings, whether they will also be seeking to record them. If so, when seeking permission, the applicant party and transcriber will need to complete Form EX107 and send this to the court in order to obtain consent. Given the judgments in the Hewitt and Business Mortgage Finance cases, which have been widely reported amongst the legal community, and in both of which the judges suggested that the courts may reach for sterner sanctions in future, parties should avoid attempting to rely on retrospective permission.
- How (Not) To Deal With An Embargoed Judgment
OPTIS CELLULAR TECHNOLOGY INC & ANOR V APPLE RETAIL UK LTD & ORS  EWHC 2694 (PAT)
Where there has been a suspected unauthorised or accidental disclosure of a draft judgment, parties should raise this with their lawyers in the first instance and ensure all relevant facts are disclosed to the judge. The use of "email exploders" to distribute draft judgments should be avoided.
This case is a lesson about how not to handle matters when it comes to a suspected leak. A dismissive attitude and the lack of proper communication between the suspecting party and his lawyers as to what exactly occurred ultimately led to wasted time and costs and severe disapproval from the judge.
What should have happened is a careful discussion with legal representatives to ascertain all the facts, and appropriate correspondence with the third party and/or other side involved, before then providing a complete account of all relevant details and documents to the judge.
This case concerned the alleged unauthorised disclosure of a draft judgment for a case between Optis Cellular Technology Inc (Optis) and Apple Retail UK Ltd (Apple), and centred around two pieces of evidence – an email from Mr Fogliacco (a third party) to Mr Friedman (from Optis) in which he said he was "keeping his fingers crossed" for the "big day", and a Whatsapp call between Mr Friedman and Mr Fogliacco which occurred after that email was sent.
Mr Friedman's lawyer (Mr Moss) had emailed the judge informing of a breach of confidentiality in relation to the embargoed judgment, after Mr Friedman told Mr Moss that he had been contacted by a third party congratulating him on the outcome of the trial. This initial communication did not name the third party. A subsequent email to the judge from Mr Moss named Mr Fogliacco as the third party, implied that the leak had come from the court, and contained a statement that the call was an inbound call and that to the best of Mr Friedman's knowledge, none of his colleagues at Optis have made any outbound communications in relation to the draft judgment.
However, upon the judge contacting Mr Fogliacco's lawyers, it transpired that in fact, no leak had occurred. Mr Fogliacco had not known the result, but only the date on which the judgment was to be handed down. Furthermore, it emerged that Mr Friedman was the one who made the outgoing call to Mr Fogliacco after receiving his email.
Mr Friedman accepted Mr Fogliacco's evidence that he did not know the result of the judgment, however argued that he had assumed Mr Fogliacco already knew the result as he did not realise it was possible to know the date of hand-down of a judgment without knowing its contents. The judge criticised Mr Friedman's decision to make an outgoing call to Mr Fogliacco and said that regardless of whether he suspected Mr Fogliacco knew the result of the case, it would have been an inappropriate course of action.
KEY LEGAL POINTS
While the content of a draft judgment is subject to confidentiality, the intended date of a public hand-down of a judgment is not confidential information. The date and time for handing down will appear in the "cause list" published by the Court Service.
Breaches of confidentiality relating to draft judgments may attract a sanction of contempt of court under Practice Direction 40E, and should be treated seriously. If an accidental or unauthorised disclosure of a draft judgment is suspected by a party, they should contact their legal representatives in the first instance rather than contacting the person they suspect of breaching the embargo.
The judge also remarked that "email exploders" should be used cautiously, as they could lead to the circulation of draft judgments to an excessive number of people, which is not in the spirit of Practice Direction 40E. Instead, parties should be responsible for communicating to the judges' clerks a concise list of people who really need to receive the draft judgment.
- Settling Claims – Court Declares Effect Of Settlement Using Tomlin Order
GURGUR V REES AND OTHERS  EWHC 2181 (CH)
The Court of Appeal has confirmed that the court has jurisdiction to make a declaration as to the meaning and effect of a settlement agreement contained in the schedule of a Tomlin Order without the need for an application to the court to lift the stay of the original proceedings and to enforce a specific obligation.
A Tomlin Order is a common way of documenting a settlement agreement between parties. It has the effect of placing a stay on (suspending) the original proceedings on terms set out in a schedule to the Order. Tomlin Orders often contain a standard provision that the stay of proceedings can be lifted in order to carry out the terms of settlement into effect. However, the schedule to a Tomlin Order is not directly enforceable, so if the terms of the settlement agreement are not carried out there would usually have to be an application to court to enforce the order. This of course is costly and time consuming.
Ideally the terms of settlement should be clearly expressed and understood by all parties prior to filing a Tomlin Order.
But the decision in Gurgur opens up the possibility of asking the court for a declaration as to the interpretation of the terms of settlement agreement contained in a schedule, without having to apply to the court to lift the stay of the original claim.
A dispute between a landlord and tenant was settled by way of a Tomlin Order. The settlement agreement was recorded in a schedule. The Tomlin Order contained the standard provision that the proceedings would be stayed except for the purpose of effecting the settlement terms. The tenant was to make scheduled payments. The landlord claimed this part of the settlement included a requirement for the tenant to pay mesne profits. The tenant disagreed. The landlord applied to the court seeking a declaration as to the tenant's liability to pay mesne profits following the settlement agreement and was successful. The county court made a declaration that the settlement agreement did not preclude any obligation on the tenant to pay mesne profits independently of the settlement agreement.
The tenant appealed the decision submitting that the court did not have jurisdiction to grant a declaration, the Judge should have refused to grant it as a matter of discretion and the declaration was in any event wrong as a matter of substance. That appeal was dismissed.
KEY LEGAL POINTS
The court had to consider whether it had jurisdiction to make a declaration as to the interpretation of a settlement agreement where the declaration did not concern specific enforcement, but did concern the effect of the terms in the settlement argument. Mrs Justice Bacon determined that the question was not what the effect of the stay was, but the effect of the standard provision in the Tomlin Order. There is an exception to the stay for the purpose of carrying the settlement terms into effect.
In order to give effect to, and enforce, the terms of the settlement agreement, the parties needed to know what those terms meant. Declarations can be sought and given even where no specific enforcement order is being sought.
The county court Judge was therefore correct in granting declaratory relief. Making a declaration regarding the interpretation of a Tomlin Order was not caught by the stay and thus the court had jurisdiction. Mrs Justice Bacon did however confirm that the court could not decide whether the landlord was entitled [under the original lease] to mesne profits as that would be caught by the stay. It remained open for the stay to be lifted and the landlord to pursue an application for mesne profits in the future.