The Family Justice Council (FJC) has published guidance for professionals and litigants who represent themselves on the use of covert recordings in family law proceedings.
The guidance, ‘Covert recordings in Family Law proceedings concerning children: Family Justice Council Guidance’, follows an increased use of covert recordings in family law proceedings and the need for clear guidance, and the protection and privacy of those subject to the recording.
In summary, the guidance:
Outlines considerations undertaken by the court, referencing relevant laws and statutory frameworks involved with covert recordings in legal proceedings – including, the covert recording of children, professionals, and other family members.
Explores the consequences and potential issues that may arise from the use of covert recordings in family law proceedings and provides guidance to promote consistency in the approach to these recordings.
Emphasises the need for more guidance across professional bodies and organisations regarding the use of covert recordings in legal proceedings in the family justice system.
Analyses key considerations of the courts when assessing covert recordings in legal proceedings, such as the authenticity and completeness of the recording, probative value, and relevance to the case.
In the foreword to the guidance, the President of the Family Division of England and Wales and Chair of the Family Justice Council, Sir Andrew McFarlane, said:
“This has been a growing area for the courts to consider with little guidance available to judges or other professionals. This guidance from the Family Justice Council (FJC) explores the issues and examines the consequences arising from the use of covert recordings by private individuals and sets out guidance that we hope will lead to greater consistency in approach.
“Whilst some covert recordings have been found to have evidential value, the secret nature of covert recordings can intrude on the privacy of parents, children and professionals, causing harm and often leading to concerns about the accuracy of the recording. It is hoped that this guidance will encourage professional bodies and organisations in the Family Justice System to consider developing their own guidance on the use of covert and overt recordings.”
New protocol on communications between judges in Scotland, England & Wales, and Northern Ireland in cases involving adults who lack capacity, and accompanying handbook
A new protocol regulating communications between judges in Scotland, England & Wales, and Northern Ireland has been agreed for cases involving adults who lack capacity.
Published on the 7th May, the protocol for cases involving adults who lack capacity was agreed on 4 April 2025 following a series of meetings of members of the judiciary from each jurisdiction between 2021 and 2025.
It sets out that direct judicial communications are to be conducted using a request form sent to the relevant office.
The protocol is supported by supplementary information in the form of a Handbook on law relating to Adults Who Lack Capacity in England & Wales, Scotland, and Northern Ireland.
The protocol regulating communications between judges in Scotland, England & Wales, and Northern Ireland in children’s cases can be found on the judicial website, where updates to the accompanying handbook can also be found.
The protocol, request form and accompanying handbook can be found below:
- Judicial Protocol regulating direct judicial communications between Scotland, England & Wales and Northern Ireland, in cases of adults who lack capacity (PDF)
- Request form – Capacity Cases Protocol (Word doc)
- A handbook on adult capacity law in Scotland, England & Wales, and in Northern Ireland – April 2025 (PDF)
EAT Upholds Tribunal Costs Award in Pandeli Ltd & Gold Panda Ltd v O’Keefe: Scope of “Conduct of Proceedings” Clarified Under Rule 76
In the recent decision of Pandeli Ltd & Gold Panda Ltd v Ms H O’Keefe [2025] EAT 47, the Employment Appeal Tribunal (EAT), presided over by Lord Fairley, has provided a significant clarification on the application of Rule 76(1)(a) of the Employment Tribunal Rules of Procedure 2013, particularly in the context of conduct intended to frustrate or obstruct the progress of a claim.
Background
The underlying employment tribunal proceedings involved Ms O’Keefe, who brought claims against Pandeli Ltd and Gold Panda Ltd. During the course of proceedings, the companies took steps that, if unchallenged, would have led to their removal from the register of companies. Gold Panda applied to be struck-off the register of companies and Pandeli failed to object to a third party’s application that they be struck-off the same register. This would have had the effect of dissolving the legal entities against whom the claims were brought and avoid enforcement of any judgment. The tribunal found that this conduct would have prevented Ms O’Keefe from obtaining a judgment, had she not intervened.
The tribunal inferred that the appellants’ actions were calculated to avoid liability and thus amounted to unreasonable conduct within the meaning of Rule 76(1)(a), which empowers tribunals to consider awarding costs where a party has acted “vexatiously, abusively, disruptively or otherwise unreasonably in either the bringing of the proceedings (or part) or in the way that the proceedings (or part) have been conducted.”
As a result, the tribunal made a costs order against the companies, ordering the two companies, jointly, to pay Ms O’Keefe’s legal costs.
The Appeal
On appeal to the EAT, the appellants accepted that their conduct had been unreasonable but argued that it did not fall within the ambit of “conduct of the proceedings.” They relied on authority from Harvey on Industrial Relations and Employment Law, which distinguishes conduct that is external to proceedings, even if related, from conduct which directly forms part of the litigation process. Their position was that decisions about the corporate status of the company were administrative in nature and external to tribunal proceedings.
Counsel for the appellant also referred to Bolch v. Chipman [2004] IRLR 140, which acknowledged that conduct outside the courtroom can sometimes fall within the ambit of Rule 76 (such as attempting to intimidate a witness) but sought to distinguish that situation from the voluntary dissolution of a company.
Respondent’s Position
Ms O’Keefe’s counsel maintained that the tribunal had properly applied the law and that “conduct of proceedings” should be interpreted broadly. They referred to Leeks v. University College London Hospitals NHS Foundation Trust [2025] ICR 87, where refusal to participate in judicial mediation was deemed capable of constituting unreasonable conduct of the proceedings.
The respondent argued that conduct aimed at thwarting the tribunal’s ability to adjudicate the case, such as the attempted strike-off of the respondent companies, should fall squarely within the scope of Rule 76.
The EAT’s Decision
Lord Fairley upheld the employment tribunal’s costs order, finding that it had not erred in law. The EAT clarified that:
- The tribunal correctly identified and assessed the unreasonable conduct;
- It was entitled to consider both the effect and intention behind that conduct in assessing whether it formed part of the proceedings;
- Actions deliberately aimed at preventing the tribunal from delivering a decision on the merits or frustrating a claimants ability to establish liability (such as dissolving a respondent company mid-proceedings) can constitute conduct of the proceedings.
The EAT did not create an exhaustive definition but held that the concept of “conducting proceedings” under Rule 76 includes also any acts or omissions such as conduct by a respondent intended to influence the course or outcome of such proceedings by making continuance of them impossible for a claimant.
Key Takeaway
The appeal was dismissed. The decision stands as a noteworthy development in employment law considering any evasive behaviour from respondent companies.
This case reinforces the principle that tribunals are empowered to look beyond the courtroom when assessing a party’s conduct. The ruling highlights that if corporate respondents attempt to evade liability through procedural tactics this may not only fail but also result in financial penalties.