Kerman v Akhmedova

The Family Division applies the same common-law and equitable principles as the other courts. A solicitor or other professional may be required to provide evidence, including without notice, where disclosure is needed and there is a real risk that notice would defeat the purpose of the proceedings. The judge must consider damage to the professional relationship and possible alternative sources. An anti-tipping-off order must be temporary, specify its duration and end when its purpose is served. Legal advice privilege belongs to the client. It protects confidential communications for legal advice, but not communications with third parties or evidence of their contents. The court left unresolved whether the fraud exception requires dishonesty or extends to broader iniquity, because the appeal failed on the scope of privilege.

Mr Kerman, a solicitor who had acted for the husband, appealed orders requiring him to attend and give evidence in financial remedy proceedings and to produce documents. Haddon-Cave J rejected objections based on legal professional privilege and procedural unfairness in Z v Z and others [2016] EWHC 3349 (Fam). The appeal concerned the use of a solicitor as an evidential source before freezing relief, compliance with statutory and procedural requirements, notice and anti-tipping-off orders, undertakings in damages, and the scope of legal advice privilege. The central issue was whether the orders and privilege rulings should stand.

1. The appeal was dismissed unanimously. The Court of Appeal rejected the general suggestion that the Family Division could adopt different legal principles from other divisions of the High Court.
2. The Family Division applies the same common-law and equitable principles as other courts. The court was entitled to obtain information from Mr Kerman before seeking freezing relief. The judge had to consider the risk of damage to the solicitor-client relationship and possible alternative sources, but Mr Kerman was an obvious source of information, was no longer on the record, and the information could help target subsequent relief. There was no requirement to obtain freezing orders first.
3. Without-notice evidence orders were justified because advance notice created a real risk that assets would be moved or concealed. A witness summons in the prescribed form did not need to identify the precise issues or provide the recipient with the evidence relied upon. The financial remedy proceedings remained on foot while judgment was awaited and, under the clean-break provision, until full compliance with the order. The complaints under section 31 G of the Matrimonial and Family Proceedings Act 1984 and FPR therefore failed.
4. Anti-tipping-off orders are recognised in family and civil practice. They must be short-lived, specify a period and be discharged once their purpose has been served. The order expressed to continue until further order was defective in that respect, but the defect gave no relief on this appeal. A witness summons is not an equitable remedy, and an anti-tipping-off order does not merely by its nature require an undertaking in damages.
5. Legal advice privilege is the client’s absolute and permanent privilege. It protects confidential communications between client and solicitor for legal advice, including advice in a relevant legal context. It does not protect communications between a solicitor and third parties or evidence of their contents. The questioning concerned factual matters and dealings with third parties, not instructions, communications with the clients or legal advice. The appeal therefore failed on privilege.
6. The court did not need to determine whether the fraud exception requires dishonesty rather than broader iniquity. It treated the relevant passage in Gamlen Chemical as obiter and indicated that the statutory decisions in Barclays Bank v Eustice concerning section 423 of the Insolvency Act 1986 and in C v C concerning section 37 of the Matrimonial Causes Act 1973 need not be questioned.

• Court of Appeal (Civil Division): Dismissed Mr Kerman’s appeal from the privilege, witness summons and anti-tipping-off rulings.
• High Court of Justice, Family Division: Haddon-Cave J made the orders and gave reasons in Z v Z and others [2016] EWHC 3349 (Fam).