Civil procedure – Committal orders- Disclosure

Re SC (children) sub nom SC v HC: CA (Civ Div) (Lords Justice Thorpe, Wall): 28 January 2010

The appellant wife (W) appealed against a committal order made against her on the application of the respondent husband (H).

W and H commenced divorce proceedings in Turkey. Proceedings were also started in England in relation to H’s contact with their two children. The children were parties to the proceedings, represented by a guardian who instructed a psychologist to assess the parties and advise the court. The contact proceedings resulted in H being granted indirect contact and the order included a paragraph prohibiting W and H from disclosing documents filed in those proceedings except to certain individuals and the children’s schools. A committal order was later made on the basis that there had been contempt as W had breached the order by disclosing the contents of the psychologist’s report to her Turkish lawyer. W alleged that she had not disclosed the report but had shown the court order to her lawyer and discussed with him the psychologist’s conclusions about H. The judge stated that he did not intend to send W to prison and instead fined her.

Held: The earlier order did not include a penal notice and there was no warning on its face that breach was a contempt capable of being punished by imprisonment. As the disclosure paragraph bound W and H, one of whom was a litigant in person, and neither of whom were English, it was important that it should include a penal notice if an alleged breach was to found an application for committal to prison for contempt. Further, contempt would not be established where the breach was of an order which was ambiguous or did not require or forbid the performance of a particular act within a specified timeframe. The person or persons affected had to know with complete precision what they were required to do or abstain from doing, Federal Bank of the Middle East v Hadkinson (Stay of Action) [2000] 1 WLR 1695 CA (Civ Div), D v D (Access: Contempt: Committal) [1991] 2 FLR 34 CA (Civ Div), and Harris v Harris (2001) 2 FLR 895 Fam Div considered. If the judge had wanted to prevent W from disclosing or discussing the contents of the psychologist’s report with a third party, the order should have said so but it did not. It was also not open to the judge to commit W for discussing the content of the report with her Turkish lawyer. A party had to be entitled, in the exercise of legal professional privilege, to discuss any issue with his or her legal advisers, and it was not a contempt of court for a litigant to disclose information arising from or connected with the proceedings with his or her lawyers. As the judge was plainly of the view that he was dealing with a litigious couple, each of whom was prepared unscrupulously to disclose information for their own ends in the Turkish litigation, it would have been thought that the more the Turkish court knew about the English proceedings the better. Modern good international practice would have also called for cooperation and appropriate discussion between the English and Turkish judges. The committal order therefore had to be set aside.

Appeal allowed.

Dorothy Seddon (instructed by Henry Browne) for the appellant; no appearance or representation for the respondent.