Common law and statute law: the hierarchy of law-making

English and Welsh law is made up of common law and statute law – what I shall call, together, primary law; and, of the two, statute law will always trump common law. Common law is made for the most part by judges of the High Court, Upper Tribunal, Court of Appeal and Supreme Court. Statute law is made by Parliament (strictly speaking by the queen in Parliament).

Many modern statutes, of necessity, delegate law-making to government departments or to other statutory bodies. These bodies are then responsible for making subsidiary (or delegated) legislation, subject only to parliamentary approval. Much of the legal aid scheme depends on various levels of subsidiary legislation, as does the child support scheme; and family law could not work without Family Procedure Rules 2010 which are delegated to Family Procedure Rules Committee by Courts Act 2003 ss 75 and 76.

Subsidiary to this delegated legislation, and not even subject to direct parliamentary approval, are certain murky powers – some statutory and some less so – to issue guidance and make practice directions. Thus under Legal Aid Sentencing and Punishment of Offenders Act 2012 s 4 the Lord Chancellor has be given power by Parliament to issue guidance as to the operation of the exceptional case funding provisions of LASPOA s10. President of Family Division is able (nominally with the approval of the Lord Chief Justice) to issue practice directions for the guidance of litigants in family proceedings; and Family Procedure Rules Committee (see below) has powers to make such directions also.

The Lord Chancellor’s guidance  on exceptional case funding (https://www.gov.uk/government/publications/legal-aid-exceptional-case-funding-form-and-guidance) has been twice successfully shown in certain important respects to be unlawful (R (ota Gudanaviciene & Ors) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622; and again in IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin), Collins J). Twice this year already practice directions have been shown by Supreme Court to be outside the powers – ultra vires – the body with power to make them; and Family Procedure Rules Committee have consigned most aspects of care proceedings in a way which is of such detail and which avoids legitimate statutory or delegated legislation, such that it is, in many respects, of dubious lawfulness. (Children lawyers are such a supine bunch that they do not trouble to take the Lord Chancellor or FPRC (his committee) to task for this).

Subsidiary legislation: within bounds defined by Parliament

The critical feature of all this is to appreciate that delegated legislation can only exist, lawfully, if it comes within the bounds defined by Parliament; and, as Collins J explained in IS, guidance – even more so – must come within the intent of the statutory scheme as set out by Parliament (that is the point of democratic direction to ministers: and see Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997).

And thus the law comes full circle. Judge-made common law comes back into play to explain what a particular statutory provision means (including delegated legislation and guidance, as with the Gudanaviciene and IS cases); or to say that subsidiary legislation is not within the powers delegated by Parliament.

An excellent example of the creation of law by the judges is the Gillick case. Family Law Reform Act 1969 s 8 says that a child over 16 can consent to medical treatment as if the ‘child were an adult’; but under that age the question of a child’s consent depends on their age and understanding as defined or explained by Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112, [1985] UKHL 7, [1986] 1 FLR 224. The first period – 16-17 is entirely statutory; but to understand the rights of a child up to his/her sixteenth birthday we are dependent entirely on the common law.

As Lord Scarman explained it:

The law has, therefore, to be found by a search in the judge-made law for the true principle. The legal difficulty is that in our search we find ourselves in a field of medical practice where parental right and a doctor’s duty may point us in different directions. This is not surprising. Three features have emerged in today’s society which were not known to our predecessors: (1) contraception as a subject for medical advice and treatment; (2) the increasing independence of young people; and (3) the changed status of woman. In times past contraception was rarely a matter for the doctor:…, women have obtained by the availability of the pill a choice of life-style with a degree of independence and of opportunity undreamed of until this generation and greater, I would add, than any law of equal opportunity could by itself effect.

And thus is a balance held and a symbiosis maintained: first is the common law, save where – secondly – the law is developed, altered or codified by Parliament. Subsidiary to statute law are the forests of delegated legislation and guidance. And then, finally, the judge’s sweep up: watching over laws set out by Parliament and searching out Lord Scarman’s ‘true principle’ where none has yet been defined.


Children Act 1989 and declarations

In Re JM (A Child) [2015] EWHC 2832 (Fam) (07 October 2015) Mostyn J dealt with a ten year old child who needed urgent medical treatment, and who seemed to have been returned to Poland by his parents. The judge made the order sought on application by ‘A NHS Trust’ (‘the Trust’) supported by ‘A local authority’ and the child’s guardian. Save for a possible issue over jurisdiction between England and Poland all that was uncontroversial.

As far as I can tell from the report, the issue of procedure for such applications was not raised before Mostyn J. If that is right then Mostyn J’s comments (at §§[20]-[29]) are obiter – ie not binding.  That said the rest of this note goes to those comments. They will be hard to follow in the absence of clear procedural rules (which I deal with later).

Mostyn J’s view is that the Trust should proceed by seeking an order in the Family Court as a ‘Children Act 1989 s 8’ application (see §[26]). However if ‘final binding declarations’ are sought – as here – then application must under CA 1989 s 8 with an application for ‘declaratory relief under the inherent jurisdiction’ (§[27]). (At this point Mostyn J had already given the trust permission to apply under Children Act 1989 s 10(2)(b) (§[20])). He reasons that the inherent jurisdiction route is better for the parents since, he asserts, they will be entitled to legal aid (he does not reflect on the legal aid merits issue if they seek to defend a case so medically sound as this one).

There is no power under the Children Act 1989 to proceed by declaration.

Practical questions

Two immediate practitioner problems arise from this:

  • The source of a court’s power to make declarations
  • How to apply for declaratory relief under Family Procedure Rules 2010

The source of the courts power to grant a declaration is common law. It is explained by Lord Scarman in Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112 at 177 etseq, [1985] UKHL 7, [1986] 1 FLR 224 and, more recently, by the Court of Appeal in Rolls-Royce plc v Unite the Union [2009] EWCA Civ 387. Insofar as the High Court has an inherent jurisdiction to make a declaration so too does the Family Court (Matrimonial and Family Proceedings Act 1984 s 31E(1)).

And how to apply? FPR 2010 sets up its range of application as did the mediaeval civilian lawyers: as actions on the case which must be moulded by the pleader to fit his case. There is no specific rule which provides an originating summons procedure, save a combination or FPR 2010 Pts 8 and 19; and that is the route the practitioner must take.

The applicant seeks relief under the inherent jurisdiction of the court over children. Once that threshold is achieved Mostyn J’s analysis becomes muddled: the relief is covered by the inherent jurisdiction. Children Act 1989 s 8 may help to provide the form; but as he says (§[25]) ‘the architects’ of CA 1989 did not have in mind an application by a NHS Trust. I suspect they did; and they left it – as Mostyn J should have done – to the inherent jurisdiction. (I am afraid I have not checked those Law Commission booklets written by Commissioner Brenda Hoggett (now Lady Hale), to make sure what the Law Commissioners did have in mind on this.)

Generalia specialibus etc

Oh and I checked the generalia specialibus non derogant [the general cannot derogate from the special] point Mostyn J picks up at §[22] from Effort Shipping Co Ltd v Linden Management SA [1998] AC 605 per Lord Cooke at 627. He was talking about rules in relation to shipping contracts… No wait, it’s a nice point. If Parliament has made specific provision, a general principle cannot override it:

If, however, there were any prima facie conflict between the general provisions of article IV, r. 3 [of the Hague Rules] and the special provisions of article IV, r. 6, it would seem to be almost a classic case for applying the maxim generalia specialibus non derogant [the general cannot derogate from the special]. This would not be to treat article IV, r. 6 as free-standing: quite the reverse. It would be to conclude that on a fair reading of the Rules as a whole article IV, r. 6 must take priority over article IV, r. 3. Further reasons supporting that conclusion as representing the likely intention of the drafters have been given by my noble and learned friends, and it would be superfluous to repeat them. I would add only that the generalia specialibus maxim, as its traditional expression in Latin indeed suggests, is not a technical rule peculiar to English statutory interpretation. Rather it represents simple common sense and ordinary usage. It falls within the category explained as follows in Bennion’s Statutory Interpretation, 2nd ed. (1992), at p. 805:

‘A linguistic canon of construction reflects the nature or use of language generally. It does not depend on the legislative character of the enactment in question, nor indeed on its quality as a legal pronouncement. It applies in much the same way to all forms of language … Linguistic canons of construction are not confined to statutes, or even to the field of law. They are based on the rules of logic, grammar, syntax and punctuation; and the use of language as a medium of communication generally.’

The problem with Mostyn J’s citation of Effort Shipping is that he cannot himself make up his mind (see §§[24]-[26]) whether the statutory, or the common law, route is correct. I say common law; but Mostyn is muddled on that too. And the passage he cites from Family Court Practice 2015 (page 1762 cited in §[20]) is only looking at the issue in the context of care proceedings.

Where a High Court judge expresses a half-formed opinion on a subject where he has not – I suspect – heard argument, it is surely unhelpful? This is so especially where he does not finish the job by giving clear procedural guidance to those who must issue these applications often at very short notice indeed.

The diffidence and good humour with which Lord Scarman traversed the procedural territory in Gillick ([1986] 1 AC 112 at 177) is in contrast with that of Mostyn J; and Lord Scarman’s words still merit attention as to the private rights to use the common law declaratory powers of the High Court. A hospital may be the applicant; but the private rights of a child – ie private law – are in issue.


Fraud and the set aside jurisdiction

Sharland v Sharland [2015] UKSC 60 (14 October 2015) has reminded lawyers of the importance of fraud in family proceedings, especially in the non-disclosure set aside area. The subject must recall for any lawyer the dangers inherent in pleading fraud or other serious misconduct. Family proceedings rules on the set aside jurisdiction do not exist. Family Procedure Rules Committee have been trying to sort them out for three years and more; and that now have some tips from Lord Wilson as to what to do (Gohil v Gohil [2015] UKSC 61 (14 October 2015) at §[18]). The subject of pleading is not part of Lord Wilson’s §[18] suggestions.

I have suggested elsewhere (see guide to procedure at https://dbfamilylaw.wordpress.com/2015/10/17/application-to-set-aside-a-family-proceedings-order-a-procedural-guide/) that to get properly off the ground a claim must surely be properly pleaded alongside a Family Procedure Rules 2010 Part 18 application in the cause in which the alleged non-disclosure, or other grounds for set aside, occurred. On Lord Wilson’s recommendation (§[18](c)) that claim will then go to the same level of judge as dealt with the impugned order.

This, and a following, note will be addressed specifically to two controversial areas implied by any set aside procedure:

  • Allegations of fraud or other wrong-doing in a pleaded set aside (or any other) case; and
  • Aspects of legal professional privilege (‘LPP’) which impinge on the process.

The first of these will be addressed now. The second will be dealt with in a separate article.

Guidance on pleading

The bar Guidance on Pleading Fraud in the light of Medcalf v Mardell and others [2002] UKHL 27 and its own Conduct Code para 704(c) records first that the paragraph

‘states that a barrister should not draft a document containing any allegation of fraud “unless he has clear instructions to make such an allegation and has before him reasonably credible material which as it stands establishes a prima facie case of fraud” [emphasis added]….Lord Bingham of Cornhill, with whom the other law lords agreed, said that:

‘“… the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel to conclude that serious allegations should properly be based upon it”’.

The Professional Standards Committee (PSC), the Guidance records, believes that ‘there is no litmus test for determining whether it is proper to allege fraud.’ In Medcalf Lord Bingham said: ‘Counsel is bound to exercise an objective professional judgment whether it is in all circumstances proper to lend his name to the allegation’. So, says PSC, the pleader’s ‘decision will depend on the individual facts of each case;’ and this will in practice ‘apply to any other allegation of serious misconduct’.

This guidance is likely to apply to any lawyer pleading a case of fraud or other serious misconduct.

Medcalf v Mardell

What had happened in Medcalf was that during the course of an appeal by the unsuccessful defendants to a High Court action, leading and junior counsel who represented the defendants – on instructions – made serious allegations of fraud against the claimant in a draft amended notice of appeal, in a supplementary skeleton argument and at the hearing of the appeal. An application to amend the notice of appeal and the substantive appeal were disallowed. The claimant applied for a wasted costs order against the barristers saying they had acted in contravention of paragraph 606 of the Code of Conduct of the Bar (as it then was) in that they could not have had before them ‘reasonably credible material’ which established a prima facie case of fraud.

The defendants themselves refused to waive privilege. The barristers could not therefore put before the court confidential material relating to their instructions so as to demonstrate that they had ‘reasonably credible material’ to justify the allegations. A majority of the Court of Appeal (Wilson J dissenting) held that the barristers’ conduct had been improper: counsel, they said could not have had before them sufficient material (per paragraph 606) to justify the allegations; that their inability to reveal privileged or confidential material did not make the hearing unfair; and that, making every assumption favourable to counsel on points where the court did not have evidence before it, it was nevertheless just to exercise its discretion in favour of making the order to compensate the claimant for wasted costs.

Fraud and the set aside jurisdiction

For the pleader the most difficult aspect of the non-disclosure jurisdiction will be that in many cases – Sharland was a cinch in this respect – by definition there will not be evidence. The allegation that a spouse has not disclosed will remain hidden. It must be teased out from circumstantial evidence and, for example, accidental references to parties’ children or family friends. To that extent Lord Bingham’s insistence on ‘reasonably credible’ evidence is a great help. It must always be recalled, if this all goes wrong, the pleader may end up on the wrong end of a wasted costs order application at the suit of the offended spouse; and as with Mardell’s lawyers LPP may not be waived by the pleader’s clients.

This point was emphasised by Lord Steyn, in typically economic style, in Medcalf:

[35] This particular professional duty sometimes poses difficult problems for practitioners. Making allegations of dishonesty without adequate grounds for doing so may be improper conduct. Not making allegation of dishonesty where it is proper to make such allegations may amount to dereliction of duty. The barrister must promote and protect fearlessly and by all proper and lawful means his lay client’s interests…. Often the decision will depend on circumstantial evidence. It may sometimes be finely balanced. What the decision should be may be a difficult matter of judgment on which reasonable minds may differ.

Credible evidence in an admissible form

The final say for this stage of the enquiry goes to Lord Bingham:

[22] Paragraph [704(c)] lays down an important and salutary principle. The parties to contested actions are often at daggers drawn, and the litigious process serves to exacerbate the hostility between them. Such clients are only too ready to make allegations of the most damaging kind against each other. While counsel should never lend his name to such allegations unless instructed to do so, the receipt of instructions is not of itself enough.…

The pleader lawyer must exercise objective judgement, and not simply follow his or her instructions (perhaps the most difficult bit of all this):

[22] … Counsel is bound to exercise an objective professional judgment whether it is in all the circumstances proper to lend his name to the allegation. As the rule recognises, counsel could not properly judge it proper to make such an allegation unless he had material before him which he judged to be reasonably credible and which appeared to justify the allegation…. I would however agree with Wilson J that at the preparatory stage the requirement is not that counsel should necessarily have before him evidence in admissible form but that he should have material of such a character as to lead responsible counsel [or other lawyer pleading the case]  to conclude that serious allegations could properly be based upon it. On this point I would accept the judgment of Wilson J.

Lord Bingham was still operating at a time when it was probably inconceivable that anyone other than learned counsel pleaded cases. I assume what he, and paragraph 704(c), says applies equally to any lawyer – or even lay – pleader; though the wasted cost jurisdiction is not designed for the lay adviser or, plainly, for litigants in person.

Carefully check your sources, is best advice to any lawyer, I would suggest; minute your conclusions and set them out in an advice to the client; and plead in each case what level of credibility of evidence leads to the fraud allegation.


Johnny’s the only one in step

We’ve all heard the story about the parent who is watching a parade of young soldiers and who remarks, with great pride, that only his/her Johnny is in step. Mostyn J is that parent, no he is Johnny. The Supreme Court has made a decision, which everyone thinks is binding upon us, lawyer and lay-person alike. Mostyn J does not agree. He made a decision disagreeing with the Supreme Court and with the parties themselves. The parties appealled, in agreement with one another (almost unique in itself). The Court of Appeal agreed with them, sent it back to Mostyn J, who still disagreed – yes really…

And so, in KW & Ors v Rochdale Metropolitan Borough Council [2015] EWCA Civ 1054 (20 October 2015) http://www.bailii.org/ew/cases/EWCA/Civ/2015/1054.html the Court of Appeal had another go – incredibly – at Mostyn J. For a third first instance decision, the case must go to another judge. I assume Mostyn J will keep his job; though this is yet another case where the Court of Appeal have said that, because of his judicial behaviour, he must not have the case back (see ‘Not to be listed before Mr Justice Mostyn’  https://dbfamilylaw.wordpress.com/2015/02/09/not-to-be-listed-before-mr-justice-mostyn/).

Oh and, by the way, real people and real legal fees and real delay are involved with this case. Mostyn J and his behaviour affects the lives of real people.

A Court of Appeal order is binding

A lot was said by the Court of Appeal in criticism of the judge’s failure to deal with a case in line with ordinary precedent law. Beyond that the court were critical of his being critical of them for allowing the first appeal by consent; and – how dare they? – for not telling him, in a full judgment, exactly why.

All that said, the central paragraph of the judgement is surely the following:

[22] An order of any court is binding until it is set aside or varied. This is consistent with principles of finality and certainty which are necessary for the administration of justice: R (on the application of Lunn) v Governor of Moorland Prison [2006] EWCA Civ 700[2006] 1 WLR 2870, at [22]; Serious Organised Crime Agency v O’Docherty (also known as Mark Eric Gibbons) and another [2013] EWCA Civ 518 at [69]. Such an order would still be binding even if there were doubt as to the court’s jurisdiction to make the order: M v Home Office [1993] UKHL 5[1994] 1 AC 377 at 423; Isaacs v Robertson [1985] AC 97 at 101-103. It is futile and, in our view, inappropriate for a judge, who is called upon to give effect to an order of a higher court which is binding on him, to seek to undermine that order by complaining that it was ultra vires or wrong for any other reason.

Mostyn J and the inherent jurisdiction, precedent law, the rule of law

The lamentable fact is that, though he may be an able mathematician and a master of rhetorical flashes, Mostyn J is a weak lawyer. The two KW appeals show this perfectly. UL v BK (below) show how undeveloped is his understanding of the inherent jurisdiction of the High Court and of the doctrine of stare decisis (Court of Appeal following their own decisions; whilst lesser judges follow the Court of Appeal) with its matching doctrine of a decision being per incuriam (wrong, because the deciding court was not directed to a relevant piece of law).

In UL v BK (Freezing Orders: Safeguards: Standard Examples) [2013] UKHC 1735 (Fam). In UL v BK he starts with one of the more unusual High Court judge passages in existence. He brazenly confuses, on the one hand, the common law and the equitable jurisdiction of a judge to grant injunctions (especially in the Mareva jurisdiction), with the purely declaratory Senior Courts Act 1981 s 37 on the other. (All of what he says is obiter – ie not part of the judicial decision-making – so it is capable of being ignored. As an analysis of judicial thinking it may be relevant is Mostyn J’s court on another day.) Plainly the older ‘protean power’ – his quaint term for the inherent jurisdiction and its creation, the common law – remains (see analysis of Keehan J in Birmingham City Council v Riaz & Ors [2014] EWHC 4247 (Fam) (15 December 2014). However, Mostyn J says this:

[14] It can therefore be seen that the power to grant an injunction, while placed on a statutory footing by s37, 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.

He goes on, speaking of this still existing family law jurisprudence, telling the Court of Appeal it has made a decision per incuriam:

[27] It is noteworthy that in Roche [which he finds wrong: see [29] below] 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 s37 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.

In Shipman Anthony Lincoln J was scrupulous to say he could not make an order under Matrimonial Causes Act 1973 s 37(2) (which defines an injunction which is, pure and simple, a creature of statute). He was not making an order under the Mareva jurisdiction, he said. He was using his power to make a yet third type of order – sensible you might think: I call it a ‘Shipman’ order – to freeze a particular asset. And the Court of Appeal did much the same – entirely within their powers – in Roche. Mostyn J just does not seem to understand all this.

It can confidently be said that despite Mostyn J the inherent jurisdiction, and Roche/Shipman orders, live on. And as Keehan J will confirm a judge’s inherent jurisdiction – properly understood – is eminently capable of ‘child-bearing’ (Lord Denning MR of equity in Eves v Eves [1975] 1 WLR 1338, CA).

‘Move the law a little further along a line’

The problem for Mostyn J is that he lacks judgment, in the sense that he is sometimes unable to understand the consequences of some of the things he says and does. He wants to change the law. That is not his job, save where a problem may require a development of the law for its just resolution.

I leave the last word to one of the finest judges of my lifetime, Lord Bingham – or under the name in which he is published, Tom Bingham. I fear his toes would curl at some of Mostyn J’s comments. In his The Rule of Law Penguin 2010 at p 45 he makes the point that judges must answer the questions which cases put to them; and thereby law, in appropriate cases, can be created. But, he says:

…it is one thing to move the law a little further along a line on which it is already moving… it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable…

And unpredictability, says Tom Bingham, is to impose ‘features which are the antithesis of the rule of law’. I therefore raise the question of Mostyn J: how near has he become to being a feature which is antithetic to the rule of law?


Some preliminary thoughts in the form of a rough procedural guide on setting aside a financial order in family proceedings after

  • Sharland v Sharland [2015] UKSC 60 (14 October 2015); and
  • Gohil v Gohil [2015] UKSC 61 (14 October 2015)

(1)        Money proceedings

Who may apply Either party to ancillary relief order, whether it was made (1) by consent or (2) following a court hearing Most of this jurisdiction is based on common law principles: in the medieval pleadings forms family proceedings is reduced to there is no obvious way in which a set aside application should be pleaded. CPR 1998 principles apply by analogy
The application The application is to set aside a court order so that – as far as possible, given the passage of time – the position reverts to the way it was prior to the order being made Matrimonial and Family Proceedings Act 1984 s 31F(6); ‘at level the order was made’: Sharland v Sharland [2015] UKSC 60 at §41; Gohil v Gohil [2015] UKSC 61 §18(c) (recommended course)

Note comment on what to revert to of Lady Hale in Sharland at §43

Form of application Application notice in existing cause/case FPR 2010 Part 18
When to apply As soon as possible after the grounds for application (see below) come to light For delay of seven years see . The greater or more sure is the materiality (see grounds) the greater is likely to be the tolerance of delay
Grounds Summarised the grounds are:

(1) Non-disclosure: which is material and which is (i) accidental or negligent (applicant to prove materiality); or (ii) fraudulent (materiality presumed)

(2) Mistake by the court as to law or fact

(3) Unlawfulness (eg the order was made without jurisdiction)

(4) Procedural irregularity

Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813

Gohil (above) esp §44

Pleading the Part 18 application (1) Plead on or more of the grounds (above)

(2) As ever, plead facts: evidence will follow

(3) If non-disclosure state

(i) whether accidental etc, in which case say why material; or

(ii) fraud in which case bear in mind rules about pleading fraud: ie that evince thereof must be available to the pleader

(4) If other plead accordingly

Note follow Part 18 on the assumption that and early directions/case management appointment before the level of judge who will try the application

Case management Particular matters:

(1) Disclosure and production – this may be critical; and depending on what turns up (or still does not turn up) pleading may need to be amended

(2) Transcript of original hearing: needed?

(3) Marshalling of evidence: what evidence to be heard live and what on paper or on submissions only

(4) Bundle from court below: how much needed?

Note: any HRA 1998 issues on a fair trial; must be pleaded and Government Legal Department joined (see PG##)

(1) Common law: treat CPR 1998 Part 31 as representing the common law; apply to amend per CPR 1998
Legal services order If periodical payments still live: seek LSO (see PG##)

If periodical payments disposed of on the order under review, seek A v A order interim to the issue before the court

Note the court may refuse to deal with this till the set aside issue is resolved

Matrimonial Causes Act 1973 s 22ZA(1)

A v A (Maintenance Pending Suit: Provision for Legal Fees) [2001] 1 FLR 377 and powers to make interim orders MFPA 1984 s 31F(2)(b)

Hearing, form of Fraud may have to be the subject of a full viva voce hearing; many other hearing may be based on submissions only

Sharland, Gohil – set aside: Lord Neuberger sums it up

In the second paragraph of his short judgment (agreeing with Lord Wilson and the other five SCJJ with whom they sat) Lord Neuberger – in Gohil v Gohil [2015] UKSC 61 (14 October 2015) – summed up Gohil and Sharland v Sharland [2015] UKSC 60 (14 October 2015)) thus:

[44] … where a party’s non-disclosure was inadvertent, there is no presumption that it was material and the onus is on the other party to show that proper disclosure would, on the balance of probabilities, have led to a different order; whereas where a party’s non-disclosure was intentional, it is deemed to be material, so that it is presumed that proper disclosure would have led to a different order, unless that party can show, on the balance of probabilities, that it would not have done so.

If you didn’t disclose because you didn’t know (like the wife in Livesey (formerly Jenkins) v Jenkins [1985] AC 424, [1985] FLR 813 who didn’t know she had to tell everyone she was about to remarry), then it is for the spouse who seeks to set aside the order to prove it. (Mr Jenkins successfully did prove his point.) If you deliberately hide facts then the order will be set aside when you are found out, unless you can show that the hidden facts would have made no difference: ‘see per Lady Hale in Sharland v Sharland [2015] UKSC 60, paras 29-33’ said Lord Neuberger.

I think Lady Hale was a bit stronger than that; but for most of us Lord N’s §[44] is a fair summary of the two cases. There is some procedural stuff I need to write up; and it is said that Family Procedure Rules Committee are looking at re-writing the rules – but then they’ve been doing that for three years and more. I’ll keep you posted on any movement there.

I am pleased that Briggs LJ was right (as I said I thought he was: https://dbfamilylaw.wordpress.com/2014/02/11/sharland-a-failure-of-legal-principle/). If people tell lies, it’s much better if they are not allowed to get away with it. And if a party gets it wrong, but not because it was a lie, you may have more of a struggle to set aside an order. Either way it’s an application to set aside (ie not an appeal): the applicant is not saying the judge who made the original order got it wrong on the facts at the time (Peek v Peek [1948] 2 AllER 297, Lord Merriman P).

…and a small voice in me wept for justice

Open justice principle and ECHR

The most recent addition to the Family Division bench McDonald J could be heard uttering – in H v A (No2) [2015] EWHC 2630 (Fam), McDonald J (17 September 2015) – the following (and, as I read it, a small voice in me wept for justice):

[26] Thus, outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights under the ECHR rather than the inherent jurisdiction of the High Court and (italics added), accordingly, applications for orders restraining publication are determined by balancing the competing human rights engaged (Re S (Identification: Restrictions on Publication) at [23]). In the majority of cases concerning the publicity of family proceedings the competing rights to be balanced will include those enshrined in Art 8 (right to respect for private and family life) and Art 10 (right to freedom of expression) of the European Convention. In some cases other rights will also fall to be placed in the balance.

McDonald J had just quoted this ‘succinct’ summary from a judgment of Sir James Munby P in on the subject of privacy in family proceedings in Re J (A Child) [2013] EWHC 2694 (Fam), [2014] 1 FLR 523 as follows:

[21] What may be called the ‘automatic restraints’ on the publication of information relating to proceedings under the Children Act 1989 are to be found in s 97 of that Act and s 12 of the Administration of Justice Act 1960. Section 97 prohibits the publication of ‘material which is intended, or likely, to identify’ the child. But this prohibition comes to an end once the proceedings have been concluded: Clayton v Clayton [2006] EWCA Civ 878. Section 12 does not protect the identity of anyone involved in the proceedings, not even the child… So, just as in the case of experts, there is no statutory protection for the identity of either a local authority or its social workers.

[22] The court has power both to relax and to add to the ‘automatic restraints’. In exercising this jurisdiction the court must conduct the ‘balancing exercise’ described in Re S (Identification: Restrictions on Publication) [2004] UKHL 47… This necessitates what Lord Steyn in Re S, para [17], called ‘an intense focus on the comparative importance of the specific rights being claimed in the individual case’. There are, typically, a number of competing interests engaged, protected by Arts 6, 8 and 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950 (the European Convention)…. As Lord Steyn pointed out in Re S (Identification: Restrictions on Publication), para [25], it is ‘necessary to measure the nature of the impact … on the child’ of what is in prospect. Indeed, the interests of the child, although not paramount, must be a primary consideration, that is, they must be considered first though they can, of course, be outweighed by the cumulative effect of other considerations: ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 para [33].

Common law and exceptions to the OJP

Look at the italicised passage above, again. According to Toulson LJ (in a passage not cited in either of the above two Family Division citations) the roots of the open justice principle (‘OJP’: and we are talking children law here, so it is exceptions to the OJP we are concerned with) are the common law, simple and pure:

[1] … Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well-known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 417, 477:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

[2] This is a constitutional principle which has been recognised by the common law since the fall of the Stuart dynasty, as Lord Shaw explained. It is not only the individual judge who is open to scrutiny but the process of justice…

Though only three years old that passage has been approved at least three times in the Supreme Court: Kennedy v The Charity Commission [2014] UKSC 20, A v British Broadcasting Corporation [2014] UKSC 25 and Bank Mellat v Her Majesty’s Treasury (No. 2) [2013] UKSC 39, [2014] 1 AC 700. The common law roots of the principle can be seen from way before European Convention 1950 jurisprudence; and were stressed in such cases as Scott itself and Attorney General v Leveller Magazine Ltd [1979] AC 440.

Toulson LJ concluded his judgment as follows:

[69] The open justice principle is a constitutional principle to be found not in a written text but in the common law. It is for the courts to determine its requirements, subject to any statutory provision. It follows that the courts have an inherent jurisdiction to determine how the principle should be applied.

[70] Broadly speaking, the requirements of open justice apply to all tribunals exercising the judicial power of the state. The fact that Magistrates Courts were created by an Act of Parliament is neither here nor there. So for that matter was the Supreme Court, but the Supreme Court does not require statutory authority to determine how the principle of open justice should apply to its procedures.

He allowed the Guardian’s application to be permitted to read documents read by the district judge (magistrates’) before making her decision.

[88] I base my decision on the common law principle of open justice. In reaching it I am fortified by the common theme of the judgments in other common law countries to which I have referred. Collectively they are strong persuasive authority. The courts are used to citation of Strasbourg decisions in abundance, but citation of decisions of senior courts in other common law jurisdictions is now less common. I regret the imbalance. The development of the common law did not come to an end on the passing of the Human Rights Act. It is in vigorous health and flourishing in many parts of the world which share a common legal tradition. This case provides a good example of the benefit which can be gained from knowledge of the development of the common law elsewhere.

In Attorney-General v Leveller Lord Scarman stresses the common law point that it is for the judges in their inherent jurisdiction to determine exceptions to the rule, save where it is determined by statute (the point made by Munby P above). The child law jurisdiction has been treated, at common law (largely derived from wardship), as an exception; just as equity dictates that there should be an exception, if to publicise the subject matter of the dispute (eg patents) would destroy it; and national security can dictate privacy to proceedings (discussed fully in Leveller). These principles are noted in Administration of Justice Act 1960 and Civil Procedure Rules 1998 r 39.2(3); but they are not defined by them – any more than they are by European Convention 1950 jurisprudence.

A common law root: does it matter?

This matters – as it matters in the difference of view between Holman J (Fields v Fields (Rev 1) [2015] EWHC 1670 (Fam) (04 June 2015)) and Mostyn J in Appleton & Anor v News Group Newspapers Ltd & Anor [2015] EWHC 2689 (Fam) (28 September 2015). Reading Fields I would say Holman J has the hang of the problem. It is not just a question of publicising judgement. It is a question of the public being able to see what a ‘shambles’ – I quote from Re K-L (Children) [2015] EWCA Civ 992 (12 August 2015) – the family courts can be.

Only when people really begin to understand, and start to make a fuss, will fairness begin to creep in to wear down some of the whackier decisions made in the Family Division and Family Court (and Mostyn J is one for the shakier concept of what is a fair procedure on occasion: anyone who wants chapter and verse on that is welcome to ask me).

So yes, McDonald J’s was plainly the correct decision; but I do urge him and all his brothers and sisters on the bench to be aware of the source of their powers. A simple and sound introduction is Scott tempered by Scarman (especially) in Leveller. (He cites a nice case of a ward whose details were publicised – Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA including Scarman LJ – and William Deedes of the Daily Telegraph (orse ‘Dear Bill’) was not sent to prison, nor even was he in contempt. Nicholas Wilson (now Lord Wilson etc) was in it, being led by Waite QC (later LJ).

Re F is a live piece of law, though rarely cited, on the issue of whether Administration of Justice Act 1960 created new law, or declared the old. In effect the Court of Appeal held it declared the old; and that remains the case today; which brings this note full circle.

I would say, respectfully, that McDonald J should have said:

[26] …outside the jurisdiction conferred by statute, the foundation of the Court’s jurisdiction to control publication is derived from rights defined by the common law, rather than under ECHR…

…. But then, who am I to say?