COMMON LAW DEMANDS REASONS FOR A JUDGE’S DECSION

Reasons required in a judicial decision

 

I had always thought it axiomatic that, in giving judgment, a judge must include reasons for his/her decision. When a district judge in the Family Court in Exeter recently turned down an application for costs in a financial relief case in two lines of text in the pre-amble to her one line order, and insisted on a formal application if more reasons were to be given, I was forced to justify my assumptions.

 

In general an order for costs in matrimonial finance cases cannot be made (FPR 2010 r 28.3(5)), save where ‘conduct’ is alleged (r 28.3(6)). What is to be taken into account as conduct is defined by r 28.3(7). The district judge merely said r 28.3(5) was ‘relevant’ – well obviously that was the case since it was a finance case – and that there was no conduct ‘having regard to FPR 2010 sec (sic) 28.3(7)’. That was that.

 

So why is it that a court – if such be the case – must give reasons for its decision? The main reason for reasons (other than good manners, it might be thought, where a party has gone to the trouble of putting a reasoned argument before the judge) was considered by the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Lord Phillips MR gave the judgment of the court, sitting with with Latham and Arden LJJ. The Court’s main bases for holding that a reasoned judgement should always be provided by the judge is that it is a component of justice to know how your arguments have been answered by the judge and to know whether you have a basis for appeal.

 

In English Lord Phillips’s starting point (at §6) was another decision of the Court of Appeal in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 where Henry LJ (at 381) had stressed that the giving of reasons was a component of justice:

 

The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties especially the losing party should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.

 

Henry LJ went on, in Flannery, to stress the importance of balancing the parties’ respective arguments:

 

… Where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where, as here, there is disputed expert evidence, but it is not necessarily limited to such cases.

 

A fair trial; reasons at common law

 

Lord Phillips MR went on to show how the Strasbourg jurisprudence has found that the requirement for a fair trial (European Convention 1950 Art 6(1)) ‘normally carries with it an obligation that the judgment should be a reasoned judgment’. And, pointed out Lord Phillips, ‘in response to this requirement, Magistrates Courts now give reasons for their decisions’ (§7).

 

The court held that at common law there is a ‘general recognition’ at common law that reasons should be provided. In addition to the reasons in Flannery (above) Lord Phillips also stressed the components of justice, as well as practicality on appeals, implied by giving reasons:

 

[15] … While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery observed that the requirement to give reasons concentrates the mind of the Judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power.

 

On appeals the court commented, in relation that the appeal process required reasons if it was to ‘work satisfactorily’:

 

[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained….

 

So what is to be done if no adequate reasons are provided? At §§[22]-[25] the Court of Appeal says how the lack of reasons should be remedied. Normally a party must seek permission to appeal from the judge, who should then consider giving reasons. A second bite at the carry was not the ideal means, but if reasons were inadequate it was the least worst means to resolve the short-comings of the judge.

 

So my suggestion to the Exeter judge would be that, on an application to her for permission to appeal, she provide a full reasoned judgment. If she still thinks her order should stand, the client will be able to consider whether he has a basis to appeal.

Advertisements

A FAMILY COURT FOR THE FUTURE

Sir James Munby and plans for family courts reform

 

Sir James Munby, President of the Family Division, has courted some controversy – and beyond family law legal circles – with his announcement, at a bar lawyer’s dinner at Middle Temple Hall on 26 February 2016, of the next phase of his reform plans for family courts (http://www.familylaw.co.uk/system/froala_assets/documents/471/munby-president-speech-family-law-bar-association-flba-2016.pdf). Continued reforms are needed. This note summarises the President’s ideas, and proposes other priorities for family law.

 

Sir James outlined his plans in four main areas. First he emphasised his concern for children’s involvement in the court process: both as to their ‘jig-saw’ identification where law reports about their family have been published in his push for ‘transparency’; and also as to how they might be involved in the process itself. He highlighted the fact that the proposed reforms for vulnerable individuals in family proceedings – joined with proposals for children’s involvement in proceedings – are stalled on a spoke of ‘decisions by officials and ministers on various funding and other resources issues’.

 

Secondly, there is a real need – for litigants in person and parties generally – for administrators (which includes the President) to ‘strive constantly to improve, to streamline and to simplify the system’. To emphasise this point he says ‘we need an entirely new set of rules’. The present rules are ‘fit only for the bon fire’, he say (he seems to overlook that Family Procedure Rules Committee is responsible for drafting the rules, and is chaired by him, though its minutes show he rarely attends the Committee’s meetings).

 

‘Settlement conferences’ – broadly formal attempts at in-court mediation – are to be developed for children proceedings (many would say, not before time). And then judges might become involved at a ‘pre-proceedings’ stage. Will judges become social workers and attend case conferences? I wonder how many of Sir James’s fellow judges were involved in a discussion of that idea?

 

Finally, what is the ‘function and purpose of the family courts’? Sir James answers the ‘function’ question by saying the court must move to a digital future with much of its work being done on-line and thus outside the court arena. Part of this would be re-writing of the rules – so far as ‘we still need them’ – in ‘plain English’. But of ‘purpose’: save for judges involved at a ‘pre-proceedings’ stage, Sir James says little; and I must touch on this below.

 

A family court for the 21st century

 

If I had been drafting Sir James’s speech I would have included: mediation; the purpose of a family court; clarity of drafting; dealing with children and vulnerable individuals; and IT.

 

Mediation, as a topic, does not feature in Sir James’s speech; yet as a priority over litigation, or as a parallel means of resolving disputes by agreement, mediation is essential to any contested process of family breakdown. It must be a firm part of any family law reform process.

 

The first purpose of courts is adjudication on contested issues: without an issue there would be no need to go to court (except the administrative throw back in family courts of divorce). Thus, where mediation leaves unresolved issues, the court will be involved in adjudication on facts or law or both; but it is important to be clear (1) that that is what judges do; and (2) that they only become involved when someone – an applicant – asks them; not, for example, as part of some social work, or other therapeutic, process relating to children or separating couples.

 

A fair means of adjudication which is accessible must be the first purpose of a court system. This demands clarity in law drafting. Procedural rules must be developed which can be understood by any averagely intelligent lay person; though the law can be complex and cannot always be reduced to a lowest common denominator linguistic factor. Judges, like Sir James, must always recall that rules are there as much to regulate judges and case management as to regulate the way that the parties’ dispute proceeds to judgment. Rules will always be an essential component of fairness and of the rule of law.

 

Vulnerable individuals and hearing children are two separate aspects of reform, but are coupled here for economy of space. Some effective rules must be developed (family law is 16 years behind criminal law); but the present draft (Family Procedure Rules (Amendment No X) 2015 https://consult.justice.gov.uk/digital-communications/draft-amendments-to-family-procedure-rules/supporting_documents/annexachildrenvulnerablewitnessesfprcdraftrule.pdf) must be clearer. For its main consumers (children and abused individuals) it will be a poor advertisement for clarity in law drafting. What are they to make of, for example, ‘special measures’ which apply to them where their evidence may be ‘diminished’? If they understand what that means, how then are they to secure payment for the measures?

 

Many ideas are at large for involving information technology in forms of court process. What has happened to the online dispute resolution (‘ODR’) report (https://www.judiciary.gov.uk/reviews/online-dispute-resolution/odr-report-february-2015/) of February 2015? ODR ideas need development within the family courts system. Their importance for mediation and resolution of disputes cannot be put too high. But the role for personal involvement – especially in family breakdown – remains. Technology cannot replace individual mediators, legal advice and the role of judges where discretion and legal principle must be balanced.

BURN FAMILY PROCEDURE RULES 2010

President of Family Division says family proceedings rules ‘not fit for purpose’  

 

In an address to Family Law Bar Association (their annual dinner) on 26 February 2016 Sir James Munby President of the Family Division, included the following comment:

 

The Family Procedure Rules, like their civil counterparts, are a masterpiece of traditional, if absurdly over-elaborate, drafting. But they are unreadable by litigants in person and, truth be told, largely unread by lawyers. They are simply not fit for purpose. The Red Book, like the White Book, is a remarkable 5 monument of legal publishing, but, I fear, fit only for the bonfire. Rules, to the extent that we still need them, must be short and written in simple, plain English. But in reality, much that is currently embodied in rules will in future simply be embedded in the software of the digital court.

 

Sir James chairs the committee (Family Procedure Rules Committee: ‘FPRC’) which is responsible for the rules (Courts Act 2003 s 75). He is uniquely placed to do something about what he says is the state of the rules. He can oversee the ‘fitness for purpose’ of the rules. He confuses the rules with the book – Family Court Practice (the ‘Red Book’) – which includes amongst various sources for family procedural rules, commentary on Family Procedure Rules 2010 (‘FPR 2010’). It is this commentary and accompanying procedural guides which separates the statutory sources for the rules, from the book he wants to commit to a bon-fire.

 

This last confusion by the President raises three important points overlooked in his brief comments: first, what is the present source of family courts procedural rules; secondly, what is the ‘need’ (his word) for any rules at all in his digital court; and, thirdly, the necessity for the rules to be written in clear language?

 

Source of family courts procedural rules

 

The rules which define family courts procedure will not be destroyed simply by burning FPR 2010. As we found when we first set up the Red Book the source of procedure for family courts is partly statute (eg parts of Matrimonial Causes Act 1973, Matrimonial and Family Proceedings Act 1984, Senior Courts Act 1981 – and so on); partly the rules themselves (including Civil Procedure Rules 1998 (‘CPR 1998’)); partly practice directions and guidance; and partly common law. We have done what we can in the Red Book to reflect this (statutes in Part II, rules in Part III and practice guides in Part IV), save in the case of the common law.

 

Take the common law, for example, as a source for procedure. Procedure for setting aside matrimonial finance orders was before the Supreme Court (Sharland v Sharland [2015] UKSC 60 and Gohil v Gohil [2015] UKSC 61; and see https://dbfamilylaw.wordpress.com/2015/10/17/application-to-set-aside-a-family-proceedings-order-a-procedural-guide/ ) last October (and touched upon by Mostyn J last month in DB v DLJ [2016] EWHC 324 (Fam)); yet as matters now stand procedure for an application to set aside is governed by common law only (reflected we hope in Guide E6 in the Red Book: the law on which the application is based is common law also). Disclosure in family proceedings is governed almost entirely by common law – the extensive rules on disclosure in civil proceedings (CPR 1998 Part 31) are excluded almost entirely from FPR 2010 (as explained by Moylan J in Tchenguiz-Imerman v Imerman (Rev 1) [2013] EWHC 3627 (Fam)). The whole subject of ‘use of disclosed documents’ (documents covered by the ‘implied undertaking’) must be worked out from the common law (probably best summarised in CPR 1998 r 31.22).

 

If you are going to replace the family proceedings rule-book there is a lot more than just FPR 2010 which must be replaced and redefined to cover all the needs of family proceedings. Burning a set of rules will not get rid of the statutory or the common law sources of procedure.

 

Need for rules

 

Procedure defines how a course to justice is achieved (eg defining the law and marshalling the evidence). Procedural rules regulate that course. They protect the litigant from the judges – mostly in relation to case management – who may wish to hasten or impede the fairness of a fair outcome.

 

Protection for the litigant from the judges and the court administration which is provided by the rules cannot be stressed too often. Without rules, judges as court administrators can run cases as they wish. Case management becomes a source of unpredictable outcomes. I know that is not what Sir James wants; but the logic of what he urges may be to encourage unfair outcomes and unpredictable proceeding to justice.

 

However, to be effective and if they are to achieve what they are designed for, rules must be clear to all those who use them, judges, lawyers and lay-people alike; for otherwise, like the pre-Reformation bible they will exist only for the legally qualified initiates (see https://dbfamilylaw.wordpress.com/2014/04/18/a-luther-for-family-law/). However, it must be understood that not all concepts which the law seeks to cover and define are simple. Fairness reduced to a lowest common denominator may risk impeding fairness; and that would defeat the primary object of the process.

 

Clarity of language

 

If indeed the rules are ‘absurdly over-elaborate [and] unreadable by litigants in person’ then it could be said that the rules as a whole are unlawful (not what Sir James intends at all, I am sure). The law which empowers the drafting of FPR 2010 defines the intended readability of the rules. In drafting rules (as required by Courts Act 2003 s 75(2)) FPRC must exercise their powers to make rules (s 75(5)):

 

(5) …with a view to securing that—

(a)the family justice system is accessible, fair and efficient, and

(b)the rules are both simple and simply expressed.

 

So, well before FPR 2010 were in place, the committee already had a statutory duty to produce rules which were simple and clear, the better – it might be said – to secure access to a fair and efficient system of family proceedings. Has this been achieved?

 

Probably some rules are not clear. There are bits covered only by statute. There are gaps (remedied by the common law as mentioned above). But Sir James is perhaps harsh on the authors of the rules – for whom, be it remembered, he is responsible. Various styles are at work in FPR 2010: some from the 1980s (part 9 and wardship in part 12); some more or less direct from the 1990s (derived from Civil Procedure Rules 1998 about whose style which Sir James is also harsh); and some from Acts of Parliament going back to the 1970s and before.

 

The criterion must surely be that rules be clear – clear, so far as possible, as to what they seek to achieve; and clear in the way they are written (as s 75(5) requires). They should incorporate all sources – rules, statute and common law, with practice directions added in a way which is consistent and democratic (ie not just random additions from the President’s office and form High Court judges). This would be the procedural basis for the variety of sets of proceedings covered by family law procedural rules.

 

‘Simple and simply expressed’

 

Sir James demands: ‘Rules, to the extent that we still need them, must be short and written in simple, plain English.’ Indeed, that must be the object of drafting, as Crime and Courts Act 2013 s 75(5) demands. All sources of the procedural rules must be comprised; and fairness must please not be lost in digitalisation and in seeking to reduce everything to a lowest common denominator.

 

David Burrows

St David’s day, 2016