McFarlane: New material does not change the picture significantly
The president of the family division has rejected a wife’s application to admit the statement of a ‘whistleblower’ inside her former husband’s legal team who sent the court privileged information.
Sir Andrew McFarlane said that, despite the wife’s claims of ‘perjury and perverting the course of justice’ by the husband, the application was “no more than an attempt to reargue the same material” that had already failed in the High Court.
The case was referred to the president last summer by Mr Justice Holman, who said the wife’s application “raises new and grave issues in relation to one of the most cardinal areas of our law, namely legal professional privilege”.
Taking a very different tone, Sir Andrew said the material fell “well short of being capable of establishing fraud or iniquity that would justify overriding or ignoring the legal professional privilege” which would otherwise attach to it.
“These matters have been litigated to the full already, this new material, coming in a different format, arriving in a somewhat sensational manner to the judge, in reality does not change the picture significantly, certainly sufficiently significantly to justify reopening these matters.”
The High Court heard in Saxton v Bruzas [2018] EWHC 3879 (Fam) that Timothy Saxton and Joanne Bruzas were married in 2001 and obtained a decree nisi in November 2013. They have one child.
The couple agreed a clean break the following year, with a consent order making provision for capital redistribution and for the husband to make various payments to the wife. However, the wife later applied for it to be set aside.
Mrs Justice Parker first heard the case in early 2017. She rejected the husband’s strike-out application but adjourned the hearing on the wife’s application.
The day before the ruling was handed down, she received an “unsolicited email sent anonymously to the court”, purporting to be an exchange between the solicitor then acting for the husband and his counsel.
After rejecting the wife’s application in December 2017, Parker J received a “second tranche” of material.
It was in the form of a letter to which was attached a 16-page statement giving an account of substantial concerns as to the conduct of not only the husband and his solicitor in relation to this case, but also another member of the same solicitors’ firm in relation to a wholly different piece of litigation.
Parker J recused herself in February 2018 on the grounds that she had seen the material.
Sir Andrew said: “The author of the document is identified. I am not going to name her; she was a junior employee in the litigation department of the firm of solicitors acting for the husband at the time of the February 2017 hearings before Parker J.”
He said what was needed in cases involving legal professional privilege and the fraud/iniquity exception was a “strong prima facie case established by the wife that has some foundation in fact that there are solid grounds for holding that there has been fraud (in the wide context that I have described) in the conduct of the husband and his legal team”.
He concluded: “I refuse the application for the whistleblower’s statement to be admitted as evidence into these proceedings. As a result, there is no new evidence upon which the wife now relies in support of her application.
“Secondly, as I have indicated, the application itself, is in reality no more than an attempt to reargue the same material as it was before Parker J.”
