Case No: B4/2012/2433(b) 
Neutral Citation Number: [2013] EWCA Civ 122
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM BASINGSTOKE COUNTY COURT
(MR RECORDER MARTINEAU)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday 22nd January 2013

Before:

LORD JUSTICE McFARLANE
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In the matter of L (a child)

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Mr Mark Maitland‑Jones (instructed by Messrs Brain Chase Coles) appeared on behalf of the Appellant father.

Mr Beresford Kennedy (instructed by Messrs Bonallack and Bishop) appeared on behalf of the Respondent/Applicant mother.

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Judgment
Lord Justice McFarlane:

1.	This is an application made in the run up to a full appeal hearing which is listed next week in connection with a determination made in August of last year by Recorder Martineau in the Basingstoke County Court in relation to the future care and welfare of a young child.  It is not necessary for me to go into any detail in relation to the substance of the proceedings before the lower court in order to deal with this application because it all relates to the relationship between the father of the child, Mr L, and his then solicitors. 

2.	In short terms, much of the substance of the appeal which the father wishes to mount involves criticism of his previous solicitors and gives a detailed account, at some stages day by day, of the build-up to the hearing and the circumstances which led to the father being suddenly put in a position of acting as a self-represented litigant before the Recorder on the first day of the hearing.

3.	In support of his appeal the father prepared, no doubt with the advice of his current solicitors, a witness statement dated 18 September 2012 in which a substantial amount of detail is given by him as to what did or did not happen in the context of his discussions as to case preparation and case management with his then solicitors.  I gave permission for that statement to be relied upon as fresh evidence in the appeal and that inevitably triggered this morning's application made by those acting for the mother for disclosure of the solicitors’ file of the previous firm acting for the father.

4.	The application this morning has been conducted by Mr Kennedy on behalf of the mother and Mr Maitland‑Jones on behalf of the father and the court has been particularly assisted by the fact that Mr Maitland‑Jones at various stages has acted as the father's counsel in the lead up to the proceedings which form the focus of the appeal hearing.

5.	The ball-park point (if I can call it that) as to legal professional privilege is conceded at the outset of this morning's hearing by Mr Maitland‑Jones.  He accepts that the way in which the father seeks to mount his appeal waives legal professional privilege in relation to the file of the previous solicitors but, quite properly, he seeks to oppose a disproportionate degree of disclosure and seeks to argue that only those documents or categories of documents within the file which relate to particular grounds of appeal fall for disclosure.  Mr Kennedy on behalf of the wife seeks a more widely canvassed list of items for disclosure.

6.	I am assisted by a draft order that has been handed in which itemises five categories of document and I propose to deal with each one very shortly in turn.

7.	Paragraph 1(i) relates to "preparation of the case including for the final hearing".  What is now said about that is that no point is going to be taken by Mr Maitland‑Jones on behalf of the father at next week's appeal in relation to any failure on behalf of the solicitors in the preparation of the case leading up to the final hearing.  It is therefore accepted by Mr Kennedy if that is the way the case is being put then that category of documents does not fall for disclosure.  I therefore will not make an order under paragraph 1(i) of the draft but on the basis that nothing to which it would otherwise relate is going to be argued before my Lords next week.

8.	Paragraph 1(ii) and 1(iii) are as follows: (ii) "failing to file the report of Dr Bowskill" and (iii) "the decision not rely upon the evidence of Dr Bowskill".  That relates to the fact that, at a time when he was acting in person, although at the relevant hearing, counsel, Mr Maitland‑Jones, appeared before the court by Direct Access, on 23 April 2012 leave was given to the father to obtain a psychiatric assessment.  He then as a litigant in person made contact with Dr Richard Bowskill, a consultant psychiatrist.  Dr Bowskill accepted the instruction to provide an assessment and in particular interviewed the father for two hours on 25 May 2012.  However, the report of Dr Bowskill was not crystallised and prepared until 20 September 2012, a month or so after the hearing before the Recorder.

9.	In the course of the application before the Court of Appeal the father has sought leave now to rely upon that report as fresh evidence, both as to material, as I understand it, that could have been before the lower court at the time of its hearing but more particularly because of part of the contents of that report which would suggest that because of his psychological or psychiatric make up the father was lacking in capacity to represent himself at that hearing.

10.	Mr Maitland‑Jones submits that no single ground of appeal actually makes any point about the absence of Dr Bowskill's report before the Recorder and that therefore the material relating to these two subparagraphs in the solicitors’ file should not be disclosed.  I do not agree with that approach.  The default position, given the way in which the appeal is to be mounted and the acceptance that that waives legal professional privilege, is that in essence the entirety of the solicitors’ file should be disclosed.  The exercise that I am engaged in this morning is taking out of full disclosure the material which is clearly irrelevant or disproportionately prejudicial or lacking in relevance to justify being removed from the disclosure which would otherwise follow the waiver of legal professional privilege.

11.	In relation to Dr Bowskill, whether or not there is a specific ground of appeal relating to his report, it does seem to me that the way in which the case is put on behalf of the father, and in particular looking at the substance of his statement, he will be saying to the Court of Appeal that this is relevant material which now should be before the court in the process of a retrial of the issues relating to this young child's welfare.  Secondly, in any event ground 7 makes specific reference to Dr Bowskill and makes the point that Dr Bowskill had formed the view that the appellant was unfit to represent himself in court.

12.	It therefore seems to me to be artificial that the material relating to the fact that Dr Bowskill's report was not filed before the Recorder should be in some way now kept out of the disclosure process.  I therefore grant the orders in terms of paragraph 1(ii) and 1(iii).

13.	1(iv) is agreed in the terms of "any difficulties encountered by the solicitors in representing the Appellant and their decision to cease to continue acting".

14.	Subparagraph (v) is in these terms: "the advice to the Appellant concerning alternative representation".

15.	Mr Maitland‑Jones understandably does not resist this subparagraph with any vigour.  It is unlikely to be a case turning point but part of the father's appeal is the fact that he was left in the lurch, as it were, on the morning of the hearing without any plan B that was available to him for his representation.  His statement does refer to various options for representation that were canvassed with him by his solicitors and it does seem to me that it is therefore a topic which justifies disclosure from the file on the basis that I have already described.

16.	That deals with disclosure.  Happily the file has already passed to the solicitors that now represent the father and there is no difficulty in that firm complying with the deadline in the draft order of disclosure of the relevant documents by 4pm on 24 January, which is Thursday of this week.  The appeal bundle is to be filed today.  Counsel have agreed one or two additional documents that need to go into it and plainly part of the appeal bundle will now include the documents that are to be disclosed under this order.  I therefore direct that any additional documents to go into the appeal bundle should be filed and sent to the Court of Appeal by 4pm on Friday 25 January 2013.

17.	The only other matter that falls for consideration, and again it is now effectively agreed, is the need for there to be disclosure of any communications between the appellant and/or those acting for him and Dr Bowskill.  That is an entirely ordinary process required by the Family Procedure Rules.  Normally it would be provided by disclosure of documents on the solicitors’ files and that is agreed.  Because of the period of time in which the father acted in person and/or in any event communicated directly with Dr Bowskill, I am going to add to the directions by requiring the father, by 4pm on Friday 25 January, to file a short statement which sets out any communication of any sort that he personally has had with Dr Bowskill for the purposes of instructing the doctor and thereafter any communication with him save for what passed between them during the course of the assessment interview which took place on 25 May 2012.

18.	That, therefore, I think, deals with each of these matters and I need say nothing more.

Order: Application granted