Precedent, or just a law report?

20170722_161644Common 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.

Advertisements

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?

INHERENT INJUNCTION JURISDICTION OF HIGH COURT

Some ‘protean’ power…

In Mostyn J condones non-disclosure (https://dbfamilylaw.wordpress.com/2014/02/02/mostyn-j-condones-non-disclosure-imerman-documents-and-ul-v-bk/ ) 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.