MOSTYN J: ‘ANTITHETIC TO THE RULE OF LAW’?

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?

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