P v P

Disclosure of mutual legal assistance material in civil proceedings is not subject to an absolute statutory bar where binding authority establishes that the restriction applies to criminal proceedings. The court has a discretion under [2012] EWHC 1733 (Fam) to order disclosure by a non-party where it is necessary for the fair disposal of the proceedings or to save costs.

The discretion requires a balance between the public interest in preserving effective international criminal cooperation and the public interest in ensuring that relevant evidence is available. Disclosure should be ordered only sparingly and in closely confined circumstances, particularly where the material is already held by a party, has partly entered the public domain, is sought by an alleged victim, and will remain subject to confidentiality undertakings.

The applicant sought disclosure from the Crown Prosecution Service and her former husband's criminal solicitors in proceedings to set aside a 2004 ancillary relief order. She alleged that the order had been procured by material financial non-disclosure, fraud and misrepresentation.

The documents included prosecution material, interview transcripts, restraint-order documents and material obtained from foreign authorities through mutual legal assistance. The Secretary of State and the CPS opposed disclosure, relying on the statutory restrictions governing the use of such material and the public interest in international cooperation.

The central issues were whether disclosure was necessary for the fair disposal of the wife's application and, if so, whether the public interest nevertheless required the court to refuse it.

1. Disclosure granted. The court ordered the CPS to disclose the specified material to the wife's solicitors, for use only in the proceedings to set aside the ancillary relief order and any resulting substantive financial application. The material was to be supplied by 4.00 pm on 12 June 2012, subject to any stay arising from an appeal application.
2. Rule 21.2(3) of the Family Procedure Rules 2010 permits disclosure by a non-party where disclosure is necessary to dispose fairly of the proceedings or to save costs. The material sought was likely to be highly significant in determining whether the husband had concealed financial resources and whether the wife had been deprived of a proper financial award.
3. The court was bound by BOC Ltd v Instrument Technology Ltd [2002] QB 537. That decision established, for present purposes, that the statutory restriction on the use of mutual legal assistance material did not create an absolute bar to its use in civil proceedings. The court therefore retained a discretion.
4. That discretion required a balance between the public interest in effective mutual legal assistance and the public interest in determining the wife's application on all relevant evidence. Mutual legal assistance depended on international trust and undertakings concerning collateral use. Those considerations were powerful, but did not automatically prevail.
5. In the particular circumstances, disclosure was justified. The wife was an alleged victim of the husband's financial deceit; some of the material was already in the hands of the husband and had been deployed in the proceedings; some information had been disclosed in open criminal proceedings; the family proceedings were private; and the wife gave a binding undertaking restricting use. Disclosure was consequently unlikely to damage the mutual legal assistance regime materially.
6. Disclosure compelled by a court order would not place the CPS or its prosecutors in breach of general undertakings that the material would be used only for the purposes stated in the requests. The CPS was ordered to disclose directly because the identity and location of the material among the husband's former criminal solicitors were uncertain.
7. Permission to appeal was refused, although the court recognised the force of the argument that the statutory issue required clarification. No order for costs was made as between the wife, the Secretary of State and the CPS. Costs between the husband and wife were reserved.

First-instance determination of an application for disclosure. Permission to appeal was refused, subject to the possibility of an appeal application and stay being filed.