Davies v Welch

Documents disclosed in ancillary relief proceedings are subject to an implied obligation of non-disclosure. At the material time, onward disclosure to a third party required the court’s permission unless an applicable rule authorised it. An inadvertent breach by a solicitor acting in good faith may nevertheless amount to contempt. In assessing seriousness, the court may consider whether permission would probably have been granted and whether disclosure served legitimate child-support purposes. A contempt which is technical, promptly admitted and apologised for, and causes no legally attributable loss, may justify no committal order and no order as to costs.

Mr Davies applied under CPR Part 8 for the committal of Mrs Welch, a family solicitor, for contempt of court. While acting for his wife in ancillary relief proceedings, Mrs Welch sent the Child Support Agency copies of financial documents disclosed by Mr Davies. She accepted that the disclosures breached the applicable obligations and Rule 4.23 of the Family Proceedings Rules 1991, although she had acted unwittingly and later apologised.

Mr Davies alleged that the disclosure caused him to withdraw from the ancillary relief proceedings and suffer substantial financial loss. The court had to determine the seriousness of the contempt, whether committal was appropriate, and the proper costs order.

Application dismissed in substance; no order made.

1. There was at least an implied obligation upon a party receiving documents disclosed in ancillary relief proceedings not to disseminate them, or copies of them, to third parties without the court’s leave. That obligation was reinforced at the relevant time by Rule 4.23 of the Family Proceedings Rules 1991. The later replacement by Rule 10.20A did not alter the law applicable when the disclosures occurred.
2. Rule 10.21A and section 49B of the Child Support Act 1991, as introduced by section 39 of the Child Maintenance and Other Payments Act 2008, did not provide a defence. They reflected the law as it later stood, whereas the disclosures were made before the relevant change.
3. Mrs Welch’s oversight amounted to contempt. Her professional experience meant that she ought to have appreciated the need to obtain permission. However, the contempt was unwitting, committed in good faith for a proper purpose, and not directed against the administration of justice. The court would almost certainly have granted permission for most, if not all, of the documents to be disclosed to the CSA to assist a fair maintenance assessment. Those matters substantially reduced the seriousness of the breach.
4. Mr Davies’s decision to withdraw from the ancillary relief proceedings was extraordinary and could not reasonably be attributed to Mrs Welch. His claimed loss was therefore rejected and was left out of account in assessing seriousness. Committal was inappropriate, and the proceedings called for no order on the substantive application.
5. Mr Davies was entitled to bring the proceedings to draw the contempt to the court’s attention and obtain a clear apology. Nevertheless, he pursued misconceived claims concerning financial recompense and the effect of the disclosure on the ancillary relief proceedings. Fairness required the parties to bear their own costs. No order as to costs was made.