Some ‘protean’ power…

In Mostyn J condones non-disclosure ( ) I explained why the judge’s guidance in UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam) could be regarded as a ‘cheats charter’. The same case and the judge’s comments on inherent jurisdiction injunction orders now merit review.

UL v BK was a case of a return date freezing order application in the High Court in which Mostyn J refused to make the order applied for; and for present purposes I do not query that decision. However, in so doing the judge felt it necessary to review the history of the statutory provisions which preceded Senior Courts Act 1981 s 37 (powers of the High Court to grant injunctions) and thus to review what he considered to be his jurisdiction to make an injunction order in the context of the wife’s application.

SCA 1981 s 37(1) provides that ‘The High Court may by order (whether interlocutory or final) grant an injunction…in all cases in which it appears to the court to be just and convenient to do so’. This statutory provision – as Mostyn J asserts – restates earlier statutory sources. In origin it derives from Parliament’s definition of a pre-existing state of affairs in law (well, strictly speaking, in equity): ie for centuries the High Court had had an inherent jurisdiction to make injunction orders.

High Court’s ‘hybrid’ powers

Mostyn J however, found that his powers were ‘hybrid’; and that such powers could only be exercised by reference to ‘the authorities decided under it’. Use of some ‘wider protean inherent power’ was therefore not permissible to a judge:

[14] It can therefore be seen that the power to grant an injunction, while placed on a statutory footing by [SCA 1981] s 37, does not derive solely from the legislature. Rather, it is a hybrid creation of the old equitable power and 19th century statutory intervention. Therefore, I do not consider that it is a solecism to refer to the power deriving from the inherent jurisdiction of the court. That said, the power is clearly defined and regulated by s37 of the 1981 Act alone, and therefore its exercise can only be effected under that section and the authorities decided under it. There is no scope for the use of some other wider protean inherent power (even if such exists, which I doubt) whether in the Family Division or the other Divisions. And the principles concerning the exercise of the power must be identical in whichever Division the relief is sought (italics added).

If this passage alone were to be followed it would seem to sound the death-knell for any form of High Court inherent jurisdiction. Search orders (Anton Piller KG v Manufacturing Processes Ltd & Ors [1975] EWCA Civ 12, [1976] Ch 55 now in Civil Procedure Act 1997 s 7(1)) and freezing (Mareva) injunctions insofar as they were made alongside the predecessor sections of s 37(1) would not be permitted.

Form this stand-point Mostyn J went on to consider the sources of the jurisdiction he was being asked to operate. Though there was no need for him to make any findings on the point, since he intended to exercise his discretion against UL, he explained why he considered he was entitled to find that the Court of Appeal and Anthony Lincoln J were wrong: that he – a puisne judge – was entitled to find that the Court of Appeal had made a decision per incuriam.

Stare decisis and the single judge

Before looking at Mostyn J’s findings two legal principles need to be clarified. The first is that of stare decisis and the extent to which a court can disagree with another’s decision; or the extent to which a puisne judge may flatly disagree with the Court of Appeal.

In general the Court of Appeal cannot review its own decisions: if it did the law would be uncertain. A finding that an earlier court had failed to consider a statutory provision might justify, as happened recently in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, that an earlier decision be reversed; for that decision had been made per incuriam (ie in error). An overlooked statute must provide higher authority which is binding on the later Court of Appeal (see per Lord Greene MR in Young v Bristol Aeroplane Co Ltd [1944] KB 718) and would avoid the party against whom it had been overlooked having needlessly to go to the Supreme Court to establish the point. However, this does not mean a High Court judge can try do the same of the Court of Appeal.

Secondly, in relation to ‘financial relief’ proceedings under Matrimonial Causes Act 1973, s 37(2)(a) provides as follows

(2) Where proceedings for financial relief [ie under MCA 1973] are brought by [A] against [B], the court may, on the application of [A] – (a) if it is satisfied that [B] is, with the intention of defeating the claim for financial relief [of A], about to make any disposition or to transfer out of the jurisdiction or otherwise deal with any property, make such order as it thinks fit for restraining the other party from so doing or otherwise for protecting the claim;…

In UL v BK Mostyn J considered a number of statutory sources for the jurisdiction he regarded himself as being asked to apply. He failed to consider one or two sources: he makes no mention of the modern codification of the freezing injunction in Civil Procedure Act 1997 s 7(1) (codifies the freezing orde (formerly named after Mareva Compania Naviera SA v International Bulk Carriers SA, The Mareva [1980] 1 All ER 213; [1975] 2 Lloyd’s Rep. 509, CA).

He summarised the statutory position as he saw it thus:

[15] I now turn to the question whether there is a difference in the test to be applied when ruling on an application for a freezing injunction depending on whether the application is made under s 37 Supreme Court Act 1981 or s 37 Matrimonial Causes Act 1973.…
[16] [Counsel for the wife] argues that my view that the two tests are congruent “does not accord with the test within the inherent jurisdiction (balance of convenience)” and is contrary to earlier authorities. The authorities are Roche v Roche (1981) Fam Law 243, Shipman v Shipman [1991] 1 FLR 250 and the speech of Lord Mustill in Harrow LBC v Johnstone [1997] 1 FLR 887.

He continued by finding that Roche v Roche had been decided per incuriam because, in his opinion (it is not part of the ratio of his decision in UL v BK), the judges had not referred to a variety of case law – ‘the Mareva jurisprudence’ – which he would have expected them to mention.

He finds that Shipman was ‘wrong’. Of this he says:

[27] It is noteworthy that in Roche none of the Mareva jurisprudence was referred to by the Court of Appeal in its judgments. With some trepidation I conclude that the judgment was per incuriam the many principles governing Mareva injunctions, which even by then had been developed.
[28] In Shipman v Shipman [1991] 1 FLR 250 the wife sought an order under s 37 Matrimonial Causes Act 1973 restraining the husband in divorce proceedings from disposing of or dealing with $300,000, or one half of his severance pay, whichever was the greater, pending determination of the ancillary relief proceedings. Lincoln J held that the terms of s37 had not been satisfied. But he went on hold, expressly relying on Roche, that it was wrong to believe that “there is no longer any inherent jurisdiction to freeze assets which may be put beyond the reach of the applicant.” He further went on to hold that:
“Counsel for the husband urges me to have regard to the many restrictions and safeguards surrounding the use of worldwide Mareva injunctions, and to assimilate the use of, and procedure for, injunctions in the Family Division to those in commercial Law. In my view the matrimonial field calls for a different approach. To my mind the circumstances here call for the injunction to continue. If it were discharged, the husband could well change his intentions, however genuine and well-disposed to the wife his present state of mind may be. Both he and the assets are out of the jurisdiction. Left without a job, and with new responsibilities, he will be faced with a temptation to eat into the whole of the fund.”
[29] I have to say, with great respect, that inasmuch as this decision follows Roche it too was per incuriam. Further, I do not shrink from saying that to the extent that it suggests that the restrictions and safeguards developed in the Mareva jurisprudence do not apply in family proceedings then the decision is wrong (emphasis added).

This article cannot ‘shrink from saying’, respectfully, that Mostyn J has misunderstood the bases for the jurisdictions considered in Roche and Shipman. He finds to be wrong what it must be assumed – and can indeed quite reasonably be assumed – that the judges plainly do understand what Mostyn J says they have got wrong. They find in accordance with the law and in the separate exercise of their discretion, that there are separate aspects of this jurisdiction. These separate aspects are well illustrated by the two cases. The making of an injunction orders is a matter for the court’s discretion. Secondly, there is a difference between a statutorily created remedy (eg MCA 1973 s 37(2)(b)); and a remedy which is part of the inherent jurisdiction, but which may later have been declared or codified by statute (CPA 1997 s 7(1))

‘The injunction must continue’: Shipman

Shipman illustrates the jurisdiction point very simply. A husband was to go to live in the US before completion of the couple’s ancillary relief proceedings; and he proposed to take with him his redundancy fund. Of this situation Anthony Lincoln J said, in effect: ‘I cannot find that Mr Shipman is ‘about to…’ breach s 37(2)(a). However, I feel uncomfortable about his plans (as quoted above). I am a High Court judge. I have inherent jurisdiction to make an order – not a Mareva order, freezing world-wide assets – but just this fund, in this country till the ancillary relief issues are resolved.’

This was not an order defined – or confined – by statute; nor could it be. Anthony Lincoln J was exercising a discretion vested in a High Court judge (just as did the Court of Appeal when they developed the Mareva and the Anton Piller jurisdictions). And such a jurisdiction may well be called upon increasingly in the 21st century to freeze electronic information and cyber assets of a form or forms which no statutory drafting could possibly predict at this stage.

Prerogative jurisdiction: judicial discretion

In both cases the judges exercised their discretion, within bounds accepted by the law at the time (and in relation to matrimonial property, much as it is now). A recent example of a fresh injunction jurisdiction created by Keehan J, a child sex abuse case in Birmingham – Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) in December 2014 – provides an excellent example of the use of by a High Court of his inherent jurisdiction. In that case, Keehan J – controversially, it must be said – made an order against 10 men who had been sexually involved in a variety of ways with a seventeen year old girl. Of his power to do this Keehan J first cited Waite LJ:

[45] In Re M and N (Minors) [1990] 1 All ER 205 at 537 Waite LJ said:
‘the prerogative jurisdiction has shown striking versatility throughout its long history in adapting its powers to the protective needs of children, encompassing all kinds of different situations. Although the jurisdiction is theoretically boundless, the courts have, nevertheless, found it necessary to set self-imposed limits upon its exercise, for the sake of clarity and consistency and of avoiding conflict between child welfare and other public advantages’.

He took this as a basis for finding the otherwise novel orders he intended to make, could be made within the limits asserted by Waite LJ:

[46] I am of the firm view that the use of the inherent jurisdiction to make injunctive orders to prevent [child sexual abuse] strikes at the heart of the parens patriae jurisdiction of the High Court. I am satisfied that none of the statutory or the “self-imposed limits” on the exercise of the jurisdiction prevent the court from making the orders sought by the local authority in this case.

SCA 1981 s 37 creates the modern reference point for the jurisdiction. Its roots – in this case, the parens patriae jurisdiction (ie powers of the court also in wardship) – lie centuries earlier. It is those roots which provide the reference point for the inherent powers of the High Court, not the most recent attempt by Parliament (where such attempt exists: in Keehan J’s instance it did not) to codify a much older equitable or common law jurisdiction.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s