CLARITY IN LAW: PRECEDENT LAW

Citation in family cases

In my ‘A Luther for family law’ (https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/ ) I wrote of the need for clarity and demystification in law. This remains a priority. (A similar point in relation to judgements is made by http://transparencyproject.org.uk/accessible-judgments/ and ‘Transparency’.) The law should not be made more complex than it need be. The increasing number of unrepresented parties, and family lawyers, believe they must read the burgeoning variety of family court judgements. Buy why?

There are two neutral citation sources below the Supreme Court and Court of Appeal (which each have their own variety of family cases); and BAILII have further subdivided the second into two:

• Family Division cases: EWHC (Fam)
• Family court cases (High Court judge): EWFC
• Family court cases (other judges) also EWFC

There are three sets of reports at first instance (or on appeal from district judges) where we now have to look for that Re B case – always assuming it was definitely not dealt with in the Court of Appeal or Supreme Court after all….

The question which any reader, adviser and, preferably, any publisher of law reports must answer is: does the particular case create any sort of precedent? If not it should not be cited and – though there is no control of this – it would be preferable if it were not published. (In 1990 Booth J, in the Family Division, could be heard complaining of over-reporting of cases then: what would she think of the state of affairs today?)

Precedent law

A summary of what courts treat as precedent can be found in Practice Direction of 9 April 2001: Citation of Authorities [2001] 1 WLR 1001 where it is directed – and this remains formal good practice in all courts – that save where a judgement clearly indicates that ‘it purports to establish a new principle or to extend the present law’ (para 6.1) certain categories of case may not be cited at all in court (para 6.2) (ie according to the Practice Direction it is unlawful so to do):

• Applications attended by one party only
• Applications for permission to appeal
• Decisions which establish only that a case is arguable
• All county court cases (there was no family court then) save to deal with an issue not decided at higher level which affects decisions at county court level

The recently reported Family Division case of AB v CB [2014] EWHC 2998 (Fam), Mostyn J is a case in point. In 94 paragraphs the judge refused permission to appeal. He made further comments which found their way into the press (there can be no objection to that; though a press report does not confer precedent status). As a precedent the case is of no value: the judge refused permission to appeal. The case represents no more than the musings of one High Court judge in the course of his refusal. Had Mostyn J given permission to appeal and then refused to allow the appeal that would represent a quite different state of affairs.

According to the Practice Direction – signed off by Lord Woolf LCJ not only is the case of no precedent value; but it is positively contrary to court practice to cite it (para 6.2).

Real law

So what is precedent? In his book Rule of Law Tom Bingham (Lord Bingham of Cornhill to you and me) wrote of the role of High Court judges moving the law ‘along a line’; and that most judges are reticent about doing this other than incrementally. A new point comes up and a judge must decide it. That I would suggest is the main criterion for precedent: do cases ‘move the law along’? Do they establish a new principle by which others may be bound?

Many family cases depend entirely on their facts: for example, did a particular set of facts amount to significant harm? Or they are decided as a matter of judicial discretion according to how a judge considers particular assets and income should be distributed. Fact- or discretion-based decisions, if that is the extent of what they decide, by definition are not precedent; and there is limited value in citing such cases, however high the level of judge.

A good judgement will set out early on what the issues are for trial. The reader can see if these involve fact, discretion or law; and only if it is the last should consideration be given to citing the case. It would be wonderful if law reporters would exercise their own discretion by not reporting cases which establish no precedent; but when the President of the Family Division is so keen to see so many cases reported there is probably little the law reporter can do. Another publisher might yet come forward to publish only real law.