Bloomsbury Family Law Briefing: February Teaser

Top cases

JH v MF [2020] EWHC 86 (Fam) (22 January 2020), Russell J – Appeal against refusal by circuit judge of a domestic abuse order. Sent back to a High Court judge for further hearing. Severe criticism of the circuit judge’s handling of the rape and consent evidence.

JK v MK & anor [2020] EWFC 2 (20 January 2020), Mostyn J – A consent order application prepared for a couple by one company, in cases of modest means and no children, did not present a conflict of interest.

Christoforou v Christoforou (Alleged Removal of Trees from the Applicant's land) [2020] EWHC 43 (Fam) (14 January 2020), Roberts J – The findings of fraud against the husband justified names being published in this case.

DSM SFG Group Holdings Ltd & Ors v Kelly [2019] EWCA Civ 2256 (19 December 2019) – (1) Confidentiality (or privilege) questions in issue must be set down for trial as a preliminary issue. (2) Undertakings given by parties to the court, can – in principle – be released on application by the party who gave it (Birch v Birch [2017] UKSC 53). Release should only be on a ‘significant change of circumstances’ being found by the court.

Fine Lady Bakeries Ltd v EDF Energy Customers Ltd & anor [2020] EWHC 87 (QB) (24 January 2020), Farbey J – Judges may not simply adopt one party’s skeleton argument as their judgement. They but must say why and why they reject the claimant’s arguments.

Legal professional privilege, confidentiality and the family lawyer

The last few months has been heavy with decisions on legal professional privilege (LPP) and confidentiality (for an introduction on privilege generally see Privilege Privacy and Confidentiality in Family Proceedings by David Burrows, January 2019, Bloomsbury Professional, Chs 5-10).

This article provides a review of recent cases, including:

  • Addlesee & Ors v Dentons Europe LLP [2019] EWCA Civ 1600 (2 October 2019) and its reminder in clear terms of the operation of legal professional privilege in practice; and of why LPP is a fundamental right.
  • But LPP has limits: a conversation overheard in the pub between lawyers, says Curless v Shell International Ltd [2019] EWCA Civ 1710 (22 October 2019), is unlikely to create privilege
  • In DSM SFG Group Holdings Ltd & Ors v Kelly [2019] EWCA Civ 2256 (19 December 2019) one party recorded another’s conversations. The Court of Appeal stated: ‘all of [the recorded conversations] were confidential and many … were privileged and confidential’ (at [4]). If confidentiality (or privilege) remained in issue in a case, the question must be tried as a preliminary issue.
  • In Raiffeisen Bank International AG v Asia Coal Energy Ventures Ltd & anor [2020] EWCA Civ 11 (21 January 2020) the question arose as to the extent of a party’s entitlement – a bank in this case – to see solicitor’s correspondence with their client over the solicitor’s ‘confirmation’: was this a ‘relevant legal context’ (Balabel v Air India [1988] Ch 317, CA)?

The Family Law Briefing is part of the Bloomsbury Law Online Service. The full briefing is available here.

David Burrows

Written by David Burrows

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