Legal Update
Autumn 2010

Article 1 - A Matter Of Timing... - Simon Lillington

The Court of Appeal decision in Tchenguiz & Ors v Imerman; Imerman v Imerman [2010] EWCA Civ 908 has proved controversial: Hildebrand is no longer "good law" and self-help is disapproved of.

Some people are often tempted, I am told, for a number of reasons to read or even make copies of their spouse's e-mails. This, I suspect, may be even more tempting during ancillary relief proceedings. If those e-mails reveal that the spouse has not been quite as full and frank about their assets as they should have been, are copies of those e-mails able to be used in the ancillary relief proceedings? The Court of Appeal has reiterated that if a person, without authorisation, intentionally obtains information when he or she should have realised that the victim (which includes one's spouse) expected it to be private then that is a breach of confidence. A claim based on confidentiality is an equitable claim. As with all equitable claims the remedies are discretionary. If there is a risk that the offender will repeat his or her breach of confidence then an injunction would lie to prevent such a repetition. If the offender retains the documents obtained in breach of confidence then the remedy would be an application for delivery up of those documents and all copies.

In Imerman, the wife seized her husband's documents in a pre-emptive strike. The husband had not by then filled in a Form E so it could not be said that he had been guilty of any non-disclosure. But, what is the situation if the e-mails seen by a spouse after exchange of Forms E show that the disclosure has not been full and frank? Of course, the victim in such circumstances could still apply for delivery up of the said e-mails and an order to prevent a repetition of the intrusion: As above, a claim based on confidentiality is an equitable claim and the remedies are discretionary. Importantly, in Imerman at paragraph 142 it was said:- "Of course a claim for breach of confidentiality may be defeated by showing that the documents or information revealed unlawful conduct or intended unlawful conduct by the claimant: See Istil. But in the instant appeal it is not suggested that the documents themselves disclose measures taken to defeat the wife's claim."

In ISTIL Group Inc v Zahoor [2003] EWHC 165 (Ch) Lawrence Collins J, held that where a privileged document had been seen by the opposing party through fraud or mistake, the court had power to exercise its equitable confidentiality jurisdiction, and "should ordinarily intervene, unless the case is one where the injunction can properly be refused on the general principles affecting the grant of a discretionary remedy..." On the facts of that case he decided to refuse to grant the injunction sought "on the grounds of the public interest in the disclosure of wrongdoing and the proper administration of justice."

The Court of Appeal emphasised, at paragraph 143, that "...it was not open to her [the wife] to pre-empt consideration of the husband's disclosure in Form E and that the wife acted prematurely and unlawfully" but at paragraph 148, it was recognized that the time may come when the wife may be able to legitimately apply for an order for some of the documents be produced to her or the court, presumably if the husband's subsequent disclosure is not in accordance with the documents she had seen unlawfully and prematurely.

Despite the decision in Imerman there is still plenty of scope to argue for the admissibility of documents obtained improperly where they tend to show a lack of full and frank disclosure. Pre-emptive strikes though are plainly out.

Nothing in this article should be taken as encouraging the obtaining of copies of one's spouse's documents in breach of confidence!

Article 2 - What Shall We Do With A Drunken... Claimant? - Matthew Curtis

The influence of alcohol can be a complicating factor in personal injury cases, with courts having to address the question of who is responsible for the accident and in what proportion.

In cases pleaded at common law where the claimant's alcohol consumption has contributed to the accident occurring a claimant will often still be able to recover, with the issue addressed by a finding of contributory negligence. This can be the case even when the actions of the claimant are rather out of the ordinary, for example a case involving the claimant being run over after lying in the road in a drunken stupor resulted in liability being split 60/40 against the Claimant: Green v Bannister [2003] EWCA Civ 1819.

The position is more difficult when seeking to bring a claim under the Occupier's Liability Act 1957 ("the 1957 Act") as illustrated in the recent case of Harvey v Plymouth City Council [2010] EWCA Civ 860: Harvey tripped over a chain link fence at a point where it had been lowered to about 14 inches above ground level. He then fell down a 5.5 metre drop and sustained serious injuries. On the night in question Harvey was drunk and running away from a taxi (although the judge found that he had not done so illegally). The Court of Appeal addressed whether he was a visitor for the purposes of the 1957 Act, which turned on whether his behaviour went beyond the implied licence the Council had granted to users of the land. In the dicta of Carnwath LJ, the test was not whether his actions were foreseeable by the Council; the correct test was whether the actions of the claimant had been impliedly assented to by the council. At paragraph 27, Carnwath LJ stated:-

"When a council licences the public to use its land for recreational purposes, it is consenting to normal recreational activities, carrying normal risks. An implied licence for general recreational activity cannot, in my view, be stretched to cover any form of activity, however reckless."

The court found that Harvey's behaviour went beyond the implied licence and did not come under the 1957 Act. The first instance decision (judgment for Harvey with a 75% deduction for contributory negligence) was set aside.

The lesson to take from this case is that in cases with drunken claimants or where the claimant's actions may be considered out of the ordinary, one should take particular care when considering whether the claimant comes within the 1957 Act.

Article 3 - The Obdurate Primary Carer - Stephen Cotton

We have all had them: Those clients that quite frankly push us as advocates (and the courts) to the limit. The objective is not contentious is it? To promote a full and proper relationship with the non-resident parent. What then are the consequences for those primary carers who are quite willing to frustrate proceedings? For example, a mother's refusal to even meet the child's guardian? The answer is short and brutal. A change of residence from the primary carer to the non-resident parent will be countenanced: Re A (Residence Order) [2010] 1 FLR 1083. This is clearly a weapon of last resort. If the primary carer is not in breach of an existing contact order then self-evidently the mother's (typically) future response to court orders will be unknown and accordingly is likely to be given a further chance to prove compliance.

There is, however, willingness for bold judicial decisions. Let us say that the resident parent (mother) has agreed that she no longer asserts a history of domestic violence and, furthermore, is prepared to co-operate in the initiation of a contact regime. There then follows a volte-face. The inevitable result; impasse and delay: s1(2), Children Act 1989. What is the court to do? It is likely that delay in facilitating contact would only serve to cause further entrenchment. The message here is clear: Those primary carers who are prepared to argue that it is quite legitimate for the courts to exorcise the nonresident parent from the child's life are at risk of a robust response. If, however, there has been a change of heart from the primary carer's position then it seems the carer will be given the benefit of the doubt. Contact orders are to be rigorously obeyed but the courts will be mindful of acting too soon.

The decision of the court will depend on its analysis of all the factors which bear on the question of what is in the best interests of the child. As they say, parenthood is a lot easier to get into than out of.

Let's make it work!

Article 4 - Is This Client A Patient? - Douglas Taylor

A little warning following the decision in D v R (Deputy of S) and S [2010] EWHC 2405 (COP): You should always investigate the question of capacity whenever there is any reason to suspect that it may be absent, even where the issue does not seem to be contentious. If a problem in proceedings arises associated with your client's capacity, the onus is on you to show that you took all reasonable steps to investigate the same. You might consider:-

  • Taking particularly full notes of any concerns that you may have;
  • Referring the matter to a colleague who can offer a second view or expertise;
  • Consider speaking to the client's relatives (with your client's permission);
  • Ask your client about their medical/mental health history and / or obtain medical reports from GP and / or psychiatrist, however, a GP is not usually qualified to offer an opinion on capacity;
  • Regularly reviewing capacity during your engagement;
  • Checking your professional indemnity insurance: There are horror stories out there!

Here follows a short aide memoir when considering the question of capacity:-

  • A ‘patient' is a person who by reason of mental disorder within the meaning of the Mental Health Act 1983 is incapable of managing and administering his property and affairs; for family proceedings: CPR Part 21, FPR r9.1(1)); Mental Capacity Act 2005: A ‘patient' is now a ‘protected party';
  • Tests of capacity are ‘decision specific', so the test of a client should be read as ‘incapable of managing the proceedings' i.e. giving instructions for the conduct of the proceedings or any part thereof (Masterman- Lister v Brutton & Co and Jewell & anor [2002] EWCA Civ 1889) and further, understanding the proceedings and the consequences thereof, in light of D v R above;
  • The three stage test: (i) Does the party have a mental disorder (the term is widely defined and the threshold not high)? (ii) Was the party incapable? (iii) Was the incapacity due to the mental disorder?
  • Being mentally disordered does not necessarily result in being a ‘patient/protected party' - an assessment of capacity still has to be made;
  • An injunction can be granted against a patient/protected party but only if he understands the proceedings and the nature and requirements of the injunction - Wookey v Wookey [1991] 3 All ER 365;
  • Capacity is a question of fact for the court to decide on the balance of probabilities with a presumption of capacity;
  • The test is based upon understanding and the ability to make and communicate a decision;
  • A patient/protected party must have a litigation friend to conduct proceedings on his behalf - CPR, Part 21, FPR Part IX.

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