Common law and law reports
The prompt for this article came from the fact that increasing numbers of judgements are being published by BAILII which can be published; but some of them cannot be cited in court. That is not to blame BAILII: they perform a brilliant public service in making so many judgments available online. They are not to know – if they are sent a judgement by a judge it is likely to be published – whether it can be cited or not; and therefore whether (perhaps) it should be published. (I have dealt with this before.)
The problem is compounded by the variety of set of family reports. Rather than – as with eg Chancery, Commercial, QB and so on – family law have three sets of reports: one for the Family Division (High Court judges), one for Family Court with a High Court judge sitting and one for the rest of the Family Court (mostly circuit judges). Of those the last – if the 2001 practice direction referred to is treated as law – may not be cited unless they have a 6.1 certificate (as explained below).
And to that three must be added family cases in Court of Appeal and Supreme Court (plus Upper Tribunal child support cases for the very conscientious). It is these and the High Court cases which, in reality, create the law; or move the law along a gradual path, as Lord Bingham described it. So
- How does the law of precedent work (in outline); and
- What may a party, or their advocate, cite in court?
Common law: English and Welsh law and lawyers
First, English and Welsh law (called ‘English law’ here): this consists of common law and statute law (Acts of Parliament) which can create fresh law (and override common law); or it can set out the common law in an Act of parliament (for clarity’s sake). Common law is what judges over the years – sometime the centuries – have said is the law.
For example, the rule that English court proceedings are always in open court is a common law rule, now confirmed by the European Convention 1950 on human rights (Article 6.1), but its origin and its operation and when privacy exceptions apply remain common law. The common law position is further explained by court rules for civil and (separately) for family proceedings. The rule that a person can discuss his or her legal problem with a lawyer in complete privacy is entirely a matter for common law. You’ll not find a definition of the rule – legal professional privilege – in any statute.
So how, in a little more detail, is the common law made up? Most cases at High Court (including the administrative Upper Tribunals) and higher (ie Court of Appeal and Supreme Court) levels make up the common law, when they deal with a question of law. They become precedents to which reference may then be made in appropriate cases. They help to make up the substantial patchwork which is the English common law.
Cases below that level are not precedents. Nor are cases where the decision turns only on the facts or which show a judge exercising discretion (that is deciding a case where the judge him- or herself must decide as a matter of preference – not of law – which way to resolve the case).
Citations practice direction
Decisions which turn on a question of law and explain what is the law can be precedents at the appropriate level of judge. This is set out in a practice direction issued by the then Lord Chief Justice, Lord Woolf: Practice Direction 9 April 2001 Citation of Authorities. The practice direction stated that, in the case of certain lesser judgments they could be cited only ‘if they fulfil specified requirements’ – ie that, in the opinion of the judge who made the judgment, they made law. The practice direction, in para 6, listed the lesser judgments as:
- Applications attended by one party only;
- Applications for permission to appeal;
- Decisions on applications that only decide that the application is arguable;
- Cases in county courts and the Family Court.
Any cases in these categories cannot ‘be cited before any court’ (even though, for example, the case was in the Court of Appeal) save if the case ‘clearly indicates’ that it sets out ‘to establish a new principle or to extend the present law’; and that it says so in the judgment. I shall call this a ‘6.1 certificate’ (ie based on para 6.1 in the practice direction).
An immediate problem with this is that the relevant judges do not all seem to know about para 6.1 certificates. A judge may make an interesting legal point but does not know that for it to be cited to a higher judge they have to include a 6.1 certificate. By contrast Court of Appeal judges – if reminded – may remember to pick up the point where they refuse permission to appeal, but on grounds which may usefully be cited another day.
Thus in Norman v Norman (No 2) Practice Note [2017] EWCA Civ 120, [2017] 1 WLR 2554 a wife asked the court, long after an original order had been made to permit her to appeal against a judge’s order which refused to set aside the original order. The specialist family law reports have not so far published the judgment. ICLR have done, since it concludes, in class 6.1 certificate style, where King LJ says:
Mr Glaser submits that the matters dealt with in this judgment establish a new principle or otherwise extend the present law and seeks permission for it to be cited pursuant to the Practice Direction of 9 April 2001, notwithstanding it is a judgment refusing permission to appeal. I grant that application.
Judicial hierarchy
The system of precedent and of a more senior judge overriding a lesser is driven largely – and, to an extent, understandably – by the advocate’s obsession with rank. At the bottom of the pile are solicitors and legal executives. Next are rank-and-file barristers, then Queens’ Counsel (QCs), also barristers (and all of whom wear operatic fancy dress – wigs and gowns – in open court). Judges – the people who make the decisions which determine cases – start with magistrates who, though advised by a lawyer, are lay people. In precedent terms district judges (and tribunal judges) and circuit judges can only be cited where they attach a 6.1 certificate (which is rare).
High court judge judgments (with those of Upper Tribunal judges) create the common law, with those of the Court of Appeal and Supreme Court. The only way any of their decisions can be changed is by a higher court (eg Court of Appeal overrides a High Court judge). In theory a High Court judge can disagree with another High Court judge; but it is regarded as not in accordance with High Court judicial comity to do so.
The Court of Appeal must follow the decision of another Court of Appeal (stare decisis as explained the House of Lords in eg Davis v Johnson [1978] UKHL 1, [1979] AC 264) unless the earlier court overlooked a point of law (per incuriam) which, if taken into account by the later court would make the later court wrong also (a recent example of this happened in a family case in Crown Prosecution Service & Anor v Gohil [2012] EWCA Civ 1550, [2013] 1 FLR 1095). In rare cases the Supreme Court can alter one of its earlier decisions; and Parliament by new primary legislation – but not delegated legislation (regulations, court rules etc) – can alter any of the decisions and thus revise and reform the common law.
It should be rare, therefore, that decisions are cited in family proceedings in the part of the BAILII reports entitled ‘England and Wales Family Court (Other Judges)’ – indicated by a ‘B’ added, thus [2017] EWFC B49. A 6.1 certificate will be rare, perhaps, as many circuit judges do not know of the citation practice direction. The last point adds to the confusion: if the judges do not know of para 6.1, they probably do not know they should not be referring to, or relying upon, the excepted cases in their decision-making. They fail to shorten their judgements (and perhaps save themselves time), by refusing to be referred to circuit judge cases. One of the objects of Lord Woolf’s practice direction is thereby lost.
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