Gelber v Griffin

JUDGE PEARL: This is a matter that has come before me by way of a notice to show cause brought by Mr Gelber, who has been involved in proceedings in these courts. The respondent is Miss Griffin. It is said that a number of documents ("Form E") were disclosed to an organisation called Child Support Solutions Limited by Miss Griffin without permission having been granted to her for disclosure by this court.

I have been referred, amongst other papers, to the authority of Clibbery v Allan [2002] EWCA Civ 45. That is a case where other earlier cases were cited, most important of which is a decision of Hobhouse J in Prudential Assurance v Fountain Page [1991] 1 WLR 756. Hobhouse J in that earlier case said:

My understanding on the evidence is that Miss Griffin disclosed Form E to Child Support Solutions Limited, a company operating out of Birmingham, in the context of matters that were going on appeal to the Child Support and Social Security Tribunal from a decision taken by the Child Support Agency.

It is not Mr Burrows' case that the disclosure was to the tribunal itself. It was conceded by Miss Griffin that the documents were disclosed to CSS Limited. Does disclosure amount to contempt? It is clear, as accepted by Miss Griffin, that permission should have been obtained from the court. She has explained that the reason why she did not proceed with such an application was because of the expense involved in bringing a contested application to the court. Nevertheless, the documents were disclosed.

I have to decide whether the disclosure was in contravention of the Family Proceedings Rules. I have been taken to Rule 10.20A, which says:

I have not been given detailed information about CSS, but I do not believe that CSS falls within the definition of "the legal representative"; namely, a barrister or solicitor, solicitor's employee or otherwise authorised litigator who has been instructed to act for a party in relation to the proceedings (Rule 10.20A(5)). "The proceedings" I take to refer to the family proceedings. CSS does not fall into that category

Neither does it fall into the category of "a professional legal adviser" for the same reason. That is defined as "a barrister or a solicitor, solicitor's employee or otherwise authorised litigator who is providing advice to a party but is not instructed to represent that party in the proceedings" (Rule 10.20A(5). CSS is not a barrister or solicitor, solicitor's employee or other authorised litigator who is providing advice to a party in the proceedings.

Rule 10(20)A(3) provides a list of situations where communication of certain specified information may be communicated without the permission of the court to a person listed for certain specified purposes. The first of these is in relation to any information relating to the proceedings which may be disclosed without the permission of the court by a party to a lay adviser or a McKenzie friend, "to enable the party to obtain advice or assistance in relation to the proceedings".

I have heard submissions from Mr Burrows on the appropriate interpretation of this Rule. He concedes that CSS could well fall within the definition of a "lay adviser", and I have to say that I think that must be right, given that it specifically says, "To a lay adviser or a McKenzie friend". If a McKenzie friend is within the definition, then a lay adviser such as the CAB for example, who have a more specialised knowledge, must surely fall within that provision as well. Insofar as it is necessary, I say that the CSS falls within that definition.

However, the purpose is solely to enable the party to obtain advice or assistance in relation to the proceedings. My understanding of the words "the proceedings" is that it relates back to the matter before this court and not to matters before any other tribunal; in this case, of course, the tribunal on appeal from a decision taken by the CSA.

In many cases, permission may be readily granted. If permission has not been granted, then there is a contempt of court. It may be that CSS has obtained this type of information in many cases. It is my opinion that if such information has been obtained without permission of the court, then there has been a contempt of court. Such an unauthorised disclosure is contrary to the Rule 10(20)A and contrary to the approach by the courts as illustrated by the judgements of the President and Thorpe LJ in Clibbery v Allan [2002] EWCA Civ 45 and Hobhouse J in Prudential Assurance Co Limited v Fountain Page Limited & Another [1991] 1 WLR 756.

I have concluded that there has been a breach of Rule 10.20A and that the Miss Griffin is in contempt.

The question then arises as to how to deal with that breach. Mr Burrows, as I understand it, does not wish any response from me other than to express my disapproval.