FAMILY LAW-- Production appointment (1) -- procedureThe production appointment, under Family Proceedings Rules 1991 2.62(7) (9), was hailed, when introduced, as a great benefit to the applicant for financial relief.

Family practitioners have been slow to realise that the shorter route of a subpoena duces tecum, considered in advance of the final hearing, is a simpler remedy (see Williams v Williams [1988]1 FLR 455, CA followed in Khanna v Lovell White Durrant (a firm) [1994] 4 All ER 267, Sir Donald Nicholls VC.)The correct procedure for obtaining an order for a production appointment was confirmed by Thorpe J in B v B (Production Appointment: Procedure) [1995]1 FLR 913 following the procedure suggested by Family Court Practice.

The application for the order should be made inter partes and supported by affidavit, except where 'there is a legitimate anxiety that notice might lead to the destruction or invasion of a document', when an ex parte application might be justified.-- Production appointment (2) -- disclosure and beyondIn D v D (Production Appointment) [1995] 2 FLR 497, Thorpe J raised evidential and other issues which go beyond the question of production appointments alone.The case concerned a husband who had been employed by the wife's father, a very wealthy man.

Upon the father's death the husband was made redundant.

In ancillary relief proceedings he sought information as to the wife's true financial position from her -- she remained reticent.

Eventually he sought disclosure on a production summons addressed to Mr M, the father's accountant, which Thorpe J granted.The case raises the following points of principle:1.

professional privilege -- in the interests of ensuring full disclosure -- by compulsion of court order; if need be, the court has a discretion to override professional privilege;2.

disclosure -- Thorpe J clearly aligned himself with the non- restricted approach required by the House of Lords Livesey (formerly Jenkins) v Jenkins [1985] AC 424, as against the narrower approach suggested by the Court of Appeal Frary v Frary and another [1993] 2 FLR 696;3.

limits upon disclosure -- in cases where 'manifest evidence .

.

.

of an avoidance of the duty of full and frank disclosure [can be inferred] the exercise of discretion as to the bounds of production should be broad rather than narrow' (499H).

The court should err on the side of ordering more, rather than less, disclosure.-- Another definition of 'parent'?When is a parent not a parent? When, as a father, he is not married to the mother and she and her new husband apply to adopt.

It is then that the judge's discretion, rather than biology, decides whether or not he is to be treated as a parent and, therefore, joined in adoption proceedings (Re C (Adoption: Parties) [1995] 2 FLR 483, CA).CIVIL LITIGATION-- Costs indemnityMcLeod v Royal Bank of ScotlandLightman J recently gave judgment in McLeod v Royal Bank of Scotland.Mrs McLeod and her ex-husband had covenanted in a mortgage to pay on demand, inter alia, the bank's legal costs, charges and expenses in enforcing the security.The bank took various steps to enforce against Mrs McLeod an inter partes orders for costs.

The bank then sought to make Mrs McLeod liable for the whole of their solicitors bill under the indemnity and she obtained an order for taxation under s 71 of the Solicitors Act.The Bill was taxed, applying the provisions of ord 62, r 15, that all items are deemed to be reasonably incurred, if incurred with the express or implied approval of the client.The taxing master specifically held that it was not for him to enquire about the propriety or otherwise of the provision in the mortgage deed or orders made by other courts on other applications.

He had to tax in accordance with ord 62, r 15 and could not remedy any 'absurd consequences' which followed from that.The master certified an amount in excess of £30,000 costs as being due to the solicitors from Mrs McLeod.The judge considered that both parties had conducted the taxation proceedings under an entire misconception and that the taxing master's certificate could not be so worded.

The amount due to solicitors from their own client was to be determined under the provisions of ord 62, r 15 and the Solicitors Act.The question of Mrs McLeod's liabi lity for those costs could not be determined within that taxation as she was prima facie liable only for those costs which she could not show were unreasonable.

The certificate merely fixed the upper limit of the costs for which Mrs McLeod could be held liable because it fixed the amount which would be due from the bank to its own solicitors.There would have to be a second stage (redemption or other similar proceedings) to determine what amount Mrs McLeod would have to pay.The judge relied on two passages from the decision in Gomba Holdings UK Ltd v Minories Finance Ltd (No 2) [1994] 4 All ER 588: 'Where a mortgagee had a contractual right .

.

.

to recover .

.

.

the full amount of his actual costs, charges and expenses .

.

.

on a full indemnity basis, the mortgagor was still entitled to object to any item included in the account .

.

.

on the ground that the item had been unreasonably incurred, or was unreasonable in amount.

The mortgagees contractual entitlements to costs corresponded with the indemnity basis of taxation .

.

.

and therefore the mortgagor was required to show a clear case of unreasonableness if any of the mortgagee's actual costs, charges and expenses were to be disallowed.' Scott LJ judged: 'It is difficult to contemplate that a mortgage deed would ever be construed as entitling a mortgagee to charge against the mortgaged property, or to require the mortgagor to pay all costs, charges and expenses even if improperly or unreasonably incurred or improper or unreasonable in amount, unless the mortgage deed did expressly so provide, the enforceability of such a provision would, in our opinion, be open to serious question on public policy grounds.'The situation is summarised in Gomba in that part of Scott LJ's judgment which sets out the principles and the propositions.In McLeod, the judge ordered an amendment of the taxing master's certificate to read that the amount due was to the solicitors from the Royal Bank of Scotland, even though the bank was not a party to the application for taxation.It is understood that the Supreme Court Taxing Office is considering the implications of this decision.

One of the problems is their inability to go behind the order for taxation (where the parties are only the paying party and the solicitors) in the wording of the certificates.It is also envisaged that this decision could cause a problem for mortgagors and lessors since the full indemnity for costs contained in documents may not be what it seems. -- MCLEOD V ROYAL BANK OF SCOTLAND: CRUCIAL POINTS-- A taxation of a solicitor's bill at the instance of the paying party other than the client serves only to determine what would be payable by the client to the solicitor under that bill.

It does not determine the liability of the third party, but only the upper limit of that liability (if any).The liability itself has to be decided in separate proceedings.Query if there has to be another taxation.-- An indemnity for full costs would need to be very specifically worded to exclude the indemnifier from objecting to items improperly or unreasonably incurred or improper or unreasonable in amount.

Furthermore, even if it did so provide, its enforceability must be doubtful on public policy grounds.-- The indemnifier would not necessarily be bound by ord 62, r 15(a) and (b) if he could show the item was nevertheless unreasonable or unreasonable in amount.