Gray v Boreh [2017] EWCA Civ 56 (09 February 2017)

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Re: Gray v Boreh [2017] EWCA Civ 56 (09 February 2017)

intersting this one

1. Lady Justice Gloster:
   Introduction
   
2. This is an application for permission to appeal by a non-party to the proceedings, a Mr Peter Gray ("the applicant" or "Mr Gray"), against certain findings of fact made by Flaux J in the course of a successful application made by the defendant, Mr Boreh, in a Commercial Court action, to set aside a freezing order which had been made against him and for an order for wasted costs against Gibson Dunn & Crutcher LLP ("Gibson Dunn"). The application was made on the ground, amongst others, that the claimants in the action, the Republic of Djibouti and others ("the claimants"), had dishonestly misled the court through their solicitor, Mr Gray, a partner in the Dubai office of Gibson Dunn at the material time, in connection with the application for the freezing order.

but further down, it details this part

1. The judgment in Re W (A Child)
   
2. Necessary background reading to this case is the judgment of this court in Re W (a child), delivered by McFarlane LJ, with whom the President of the Family Division and Christopher Clarke LJ agreed. What happened in that case may be summarised as follows. The original judgment had been given by a circuit judge, sitting as a deputy High Court judge within ongoing care proceedings relating to a number of children. The judgment, which was extensive, related entirely to fact-finding in relation to allegations of sexual abuse made in respect to a number of family members by "C" an older sibling of the children who were the subject of the proceedings. In addition to the children's parents and the children themselves, two male family members had been joined as parties for the fact-finding part of the proceedings as C had made specific allegations of sexual abuse against them. After a lengthy hearing and a very full analysis of all of the relevant material, the judge found that none of C's allegations were proved. In coming to his conclusion he was critical of a range of professionals who, in various ways, were involved with C in the extended period during which C's apparent account of sexual abuse developed. No party to the proceedings had sought to appeal against the judge's conclusion that the sexual abuse allegations were not proved. Within the proceedings the statutory threshold criteria in Children Act l989, s 31 had been met on grounds that were unrelated to the sexual abuse allegations at an earlier hearing. In the event, by the time of the appeal, matters had moved on and all of the children were back at home with their parents, the proceedings had concluded and there were no longer any live public law orders in place with respect to any of the children.
3. In addition to dismissing the sexual abuse allegations, the judge had included in his fact-finding judgment a range of criticisms and findings as to the actions of the local authority, the wider group of professionals involved and, in particular, an individual social worker and an individual police officer, both of whom the judge proposed to name.
4. Permission to appeal was granted by this court to the local authority, the named social worker ("SW") and the named police officer ("PO"). Their appeal sought the removal from the judgment of the passages complained of. Their complaint related to the judge's finding that SW and PO, together with other professionals and the foster carer, were involved in a joint enterprise to obtain evidence to prove the sexual abuse allegations irrespective of any underlying truth and irrespective of the relevant professional guidelines. The judge found that SW was the principal instigator of this joint enterprise and that SW had drawn the other professionals in. The judge found that both SW and PO had lied to the court with respect to an important aspect of the child sexual abuse investigation. The judge found that the local authority and the police generally, but SW and PO in particular, had subjected C to a high level of emotional abuse over a sustained period as a result of their professional interaction with her. In addition to the specific adverse findings made against the local authority, SW and PO also complain that there was no justification for the judge deploying the strong adjectives which he used in describing the scale of his findings in a judgment which, in due course, in its final form, would be made public.
5. The issues canvassed in the appeal related entirely to process. This court was not asked to analyse the evidence underpinning the judge's adverse findings nor to determine whether or not the judge was justified in criticising the professionals as he did. The central point raised by each of the three appellants was that the prospect of them being the subject of such adverse findings was made known to them, for the very first time, when the judge gave an oral "bullet point" judgment at the conclusion of the hearing. It was submitted on their behalf that the individual and collective adverse findings of the type that the judge went on to make in his judgment, did not feature at all in the presentation of the case of any of the parties and were not raised in any manner by the judge during the hearing. It was said that those highly adverse findings "came out of the blue" for the first time in the judgment and that, both in nature and substance, such findings had the potential to impact adversely upon the standing of the local authority and/or the employment prospects and personal life of each of SW and PO, yet none of the three had been given any opportunity to know of or meet the allegations during the course of the trial process. They contended that the trial process had been in breach of their rights under article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention") and, in the case of SW and PO, on the basis that the process was so unfair as to amount to a breach of their rights to respect for their private and family life under article 8 of the Convention. No issue was taken before the court as to the potential applicability of article 8 to the professional lives of SW and PO. They therefore sought a remedy from the Court of Appeal to prevent the inclusion of those adverse and extraneous findings in the final judgment that had yet to be handed down formally and published as the judge intended it to be.
6. The critical issues in the case for present purposes were whether, in circumstances where:i) none of the three appellants had sought to challenge the judge's determination on the sexual abuse allegations themselves;
   ii) nor to challenge any particular court order or determination that had been made by the judge; and
   iii) SW and PO were no more than individual witnesses within the proceedings and neither of them had been made "a full party" or "an intervenor" at the first instance stage;
   any of the three appellants was entitled to bring an appeal and whether the Court of Appeal had jurisdiction to entertain an appeal under section 16 of the Senior Courts Act 1981.
   
7. In relation to these issues McFarlane LJ held, in summary:i) that under the Family Procedure Rules 2010 ("FPC 2010") both SW and PO were each party to the proceedings sufficient to afford them a right to appeal under the Matrimonial and Family Proceedings Act 1984, section 31K^[2]; (I interpose to say that that conclusion is not relevant for the purposes of this case, since neither that act nor the FPC 2010 are relevant);
   ii) that in light of the "clear" interpretation of CPR r 52.1(3)(d) given in MA Holdings Ltd. v George Wimpey UK Ltd. and Tewkesbury Borough Council [2008] EWCA Civ 12 by Dyson LJ at paragraphs 9-22, it was clear that the Court of Appeal might entertain an appeal from SW and/or PO irrespective of whether they were formally made a party (or intervenor) in the lower court^[3]; in particular McFarlane LJ relied upon the following conclusion of Dyson LJ at paragraph 22 as follows:
   "In my view, the question of jurisdiction turns on the true meaning of "appellant" in rule 52.1(3)(d) which, for the reasons I have given, does not require that the person seeking to appeal was a party in the proceedings in the lower court. I do not consider that it is necessary to have regard to CPR 19. Even if an application by MA under rule 19.2 and 19.4 to be added as a party in the proceedings below would have failed, that fact cannot shed any light on the true meaning of "appellant". I accept, however, that the fact that such an application was not made may be relevant to the question whether MA should be given permission to appeal.";
   accordingly, he held that each of the appellants were indeed appellants;