Family law no island (5): Precedent — a search for certainty in law
Posted on 3rd Feb 2017 in Family Law
David Burrows continues his series discussing the impact on family law and practice of legal developments in other areas, with the first of two articles on the common law doctrine of precedent.
1. Precedent: a search for certainty in law
Certainty and the law
In his Sir David Williams lecture The Rule of Law 2016 (PDF) Lord Bingham nominated as his first ‘sub rule’ for his definition of rule of law, that the law must be clear and accessible:
First, the law must be accessible and so far as possible intelligible, clear and predictable. This seems obvious: if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice (as it usually will), and the answer when given should be sufficiently clear that a course of action can be based on it.”
He said this, not because of any innate or judicial conservatism, but because he considered that a person must know when litigation starts where the goal-posts stand. As he said in the book which he wrote in development of his lecture (The rule of law Tom Bingham, Penguin (2010) at 46): ‘It is also, of course, very tough on the loser in the particular case, who has lost because the goal-posts have been moved during the course of the litigation.’
Committal to prison in civil proceedings
In a critical area of law for those affected, commitment to prison in civil proceedings, a difference of view has developed where there should, if possible, be none: between the Court of Appeal and a High Court judge, Mostyn J. The question at issue between the Court of Appeal and the judge is: what evidence does a spouse need to produce (or in similar circumstance in child support cases does the Child Support Agency have to adduce: Child Support Act 1991 s 39A) to have her non-paying spouse (or non-resident parent) committed for failure to pay money under a financial order?
And yes, as Waite J observed in R v Luton Magistrates’ Courts, ex p Sullivan  2 FLR 196 of magistrates similar powers under Magistrates’ Courts Act 1980 s 76:
“… it might be argued that the existence of [a power to commit to prison] in a society which long ago closed the Marshalsea prison and abandoned imprisonment as a remedy for the enforcement of debts, is anomalous. Certainly, Parliament has made it plain that the power is to be exercised sparingly and only as a last resort.”
A power remains for spouses (Debtors Act 1869 s 5 per Family Procedure Rules 2010 rr 33.13 and 33.14) and CSA (Child Support Act 1991 s 39A) to commit to prison for wilful non-payment of financial provision. But the issue goes much wider, to any case where application is made to commit for an individual’s alleged failure to comply with a court order. It is not restricted to family cases.
On what terms as to evidence, and onus and standard of proof, should any application to commit be made? And once the law is defined by the Court of Appeal, to what extent may a High Court judge or below diverge from that? The first question will be answered in Part 2, since in this context it is logically preceded by the law on precedent.
Doctrine of precedent: hierarchy of judges
The rules of precedent developed by the English common law are touched on in the passage from Lord Bingham, above. To be fair the law must, generally speaking, be predictable. There are careful judge-made rules as to when a judge may deviate from previously decided cases; and this includes judges in the Supreme Court. The concept of ‘precedent’ in English common law was recently explained in a blog on child care law (‘Presedent’ Revisited – Section 20 may not require consent) as follows:
… Something is not binding precedent just because a judge has said it: it needs to form part of the ratio of the case, which means that it is only that part of the judge’s reasoning that was necessary to decide the issue in the case that is binding.
The hierarchy of judges is the first stage in the process of defining precedent: some judges, if they deal with law or procedure, create precedent, some – because of their lower judicial rank – almost invariably do not. In Willers v Joyce (No 2)  UKSC 44 ;  3 WLR 534, the Supreme Court considered to what extent they were entitled to disagree with one of their own earlier decisions. Subject to that, and to the hierarchy of judges, the higher court’s earlier decisions are binding on later judges further down in the precedent pecking order.
In a short judgment in Willers v Joyce Lord Neuberger explained that only in strictly prescribed circumstances could even Supreme Court judges diverge from one of their own previous decisions:
 In a common law system, where the law is in some areas made, and the law is in virtually all areas developed, by judges, the doctrine of precedent, or as it is sometimes known stare decisis, is fundamental. Decisions on points of law by more senior courts have to be accepted by more junior courts. Otherwise, the law becomes anarchic, and it loses coherence clarity and predictability. Cross and Harris in in their instructive Precedent in English Law, 4th ed (1991), p 11, rightly refer to the “highly centralised nature of the hierarchy” of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy. The doctrine is, of course, seen in its simplest and most familiar form when applied to the hierarchy of courts. On issues of law, (i) circuit judges are bound by decisions of High Court judges, the Court of Appeal and the Supreme Court, (ii) High Court judges are bound by decisions of the Court of Appeal and the Supreme Court, and (iii) the Court of Appeal is bound by decisions of the Supreme Court.
What this may mean is that a judge may find him/herself in the position of making decisions with which they do not themselves agree. Unless they can find that the earlier decision they are forced to adopt is wrong for a reason outside it (decided per incuriam) or they can “distinguish” it, they will have to accept the position and find against what they believe to be correct.
Stare decisis: keep to earlier court decisions
Precedent leads to the doctrine of stare decisis, that is to say the rule that courts of equivalent level should keep to earlier decisions of the same court. This was explained by the Court of Appeal in Young v Bristol Aeroplane Co Ltd  KB 718, 730 where Lord Greene MR said:
On a careful examination of the whole matter we have come to the clear conclusion that this court is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule [are]:
(1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow.
(2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords.
(3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam.”
The principle of stare decisis was repeated, for example, in Davis v Johnson  UKHL 1,  AC 264, 326F, where Lord Diplock affirmed the need for the law to be certain by quoting his brother Law Lord, then Scarman LJ, in Tiverton Estates Ltd v Wearwell Ltd  Ch 146, 172–173:
If, therefore, throwing aside the restraints of Young v Bristol Aeroplane Co Ltd, one division of the [Court of Appeal] should refuse to follow another because it believed the other division of the court to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal’s errors is the House of Lords, where the decision will at least have the merit of being final and binding …”
If, therefore, throwing aside the restraints of Young v Bristol Aeroplane Co Ltd, one division of the [Court of Appeal] should refuse to follow another because it believed the other division of the court to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal’s errors is the House of Lords, where the decision will at least have the merit of being final and binding …
Case law as law
In principle there is only any point in citing a case if it establishes a relevant point of law or legal principle, or a point of procedure. Individual cases which depend on the discretion of the judge are not precedents to be followed. Certain of the more important are routinely cited even though reliant on discretion: White v White  UKHL 54 ;  1 AC 596 is one of the most obvious. Whereas a case like Livesey (formerly Jenkins) v Jenkins  AC 424,  FLR 813 (where the principle of full and frank disclosure is set out for financial remedy cases) deals with law, practice and procedure and is frequently cited as a result.
A decision which turns on a question of discretion is not law. This point was explained in Martin (BH) v Martin (D)  Fam 12, in the early days of the new legislation for matrimonial finances; and in comments which are as valid today as when made. Martin was a case where needs exceeded resources. An appeal against Purchas J had been dismissed by the Court of Appeal. The husband’s counsel said he was concerned – this was only some five years after the coming into force of Matrimonial Causes Act 1973 (MCA) – that the new legislation made it difficult to advise clients on the outcome of their cases. Ormrod LJ (who was very much involved with the cases under the new legislation) replied (italics added):
I appreciate the point [counsel] has made, namely, that it is difficult for practitioners to advise clients in these cases because the rules are not very firm. That is inevitable when the courts are working out the exercise of the wide powers given by a statute like the Matrimonial Causes Act 1973. It is the essence of such a discretionary situation that the court should preserve, so far as it can, the utmost elasticity to deal with each case on its own facts. Therefore, it is a matter of trial and error and imagination on the part of those advising clients. It equally means that decisions of this court can never be better than guidelines. They are not precedents in the strict sense of the word. There is bound to be an element of uncertainty in the use of the wide discretionary powers given to the court under the 1973 Act, and no doubt there always will be, because as social circumstances change so the court will have to adapt the ways in which it exercises discretion.”
Reasons for a decision
A later court is bound by what is regarded as the reasoning of the judge (or judges, in appeal courts) who made a decision. This is the ratio decidendi which must be distinguished from the judge’s obiter dicta (things said by the way). Obiter comments are not binding; though they may be persuasive on other courts, especially if they are the comments of a senior or well-respected judge (eg White v White (above): Lord Nicholls in the House of Lords). The question is: how does the reader disentangle what is the ratio and discard, or relegate to persuasive authority (obiter dicta), what is not?
Judges must give reasons for any decision. In a passage which applies to any judgment in civil or family proceedings Lord Phillips MR said in English v Emery Reimbold & Strick Ltd  EWCA Civ 605 ;  1 WLR 2409, at :
while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the Judge to produce a judgment that gives a clear explanation for his or her order”,
and for the following reasons:
- So that parties may be clear as to whether they have grounds of appeal;
- If an appeal is pursued, an appellate court knows how a judge has reached his/her decision;
- Justice may be seen to be done;
- If decisions are to be acceptable to the parties and to members of the public;
- A requirement to give reasons may help to concentrate a judges mind; and
- Reasons may also provide an important means under the common law for setting precedents for the future.
English v Emery and the principles set out in it were recently referred to in Iqbal v Iqbal  EWCA Civ 19 (to be considered more fully in Part 2). The Court of Appeal dealt with an appeal by a husband who had been committed to prison on evidence which they felt was inadequate. Basic procedural rules were not followed. The husband had not been present when an ancillary relief order was made and on the wife applicant’s evidence only. A committal order was made on a judgment summons application involving just under £4M, as was explained by the Sir Ernest Ryder, Senior President of Tribunals in the Court of Appeal. On the later application to commit the husband to prison for failure to make payments under the order, the judge had provided no judgment, nor any reasons, for what he had decided:
 The judge failed to give a formal judgment with the consequence that this court has had to analyse the transcript to ascertain whether there is a clear thread within the discussion which identifies the conclusions to which the judge came and sufficient reasoning for the same…. It should not be taken as read that this court will undertake that process lightly given the clear strictures of this court which apply as much to family proceedings as any other civil process: see English v Emery Reimbold & Strick Ltd  EWCA Civ 605,  1 WLR 2409. Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.”
And so, the appellate court was unable to understand why the judge had decided what he did, what evidence he had considered and the basis on which he had dealt with any unclear evidence (ie made inferences). The husband’s appeal was allowed, the committal orders set aside and the case sent back to another judge to deal with afresh.
Judicial reasoning: the ratio decidendi and obiter dicta
Many modern judgments, especially in the Court of Appeal, will start (A) with a statement of what is in issue and conclude (B) with what the court, or the majority, have decided on the point. The ratio will be the steps in legal reasoning which enabled the court to proceed from (A) to (B). Facts are the pegs on which the legal conclusions are hung, they are not part of the ratio; though without the facts there would be no case from which to develop the legal principle. A finding on facts alone cannot be a precedent.
Obiter dicta are things said by the way, in passing – or not so passing, since they may have been carefully crafted – comments. It is the reason for the decision which is binding. The rest in varying degrees is obiter. As long ago as 1673 a judge, Vaughan CJ, said: “An opinion given in court, if not necessary to the judgement given of record… is no judicial opinion, but a mere gratis dictum”. The main feature of obiter dicta is that they are not “necessary” to the decision; and, as such – though persuasive – they are not binding on another court. Guidelines are not part of the decision; but where expressed by a High Court (or higher) judge with care and after submissions, they may well be important in later cases or for practice.
And what are obiter dicta and what the ratio of the case, and how this impacts on any civil committal proceedings, brings this short series back to the recent Court of Appeal cases of Prest v Prest (No 2)  EWCA Civ 714;  1 FLR 773;  WLR (D) 295 and Iqbal above (and a line of earlier Court of Appeal starting with Mubarak v Mubarak  1 FLR 698); and of Migliaccio v Migliaccio [ EWHC 1055 (Fam) ;  4 WLR 90 with Mostyn J in reply (as it were). What is the final position on evidence and European Convention 1950 Art 6.3(c) in such cases? This will be considered in Part 2.
David Burrows is a solicitor advocate, trainer and writer. His book Evidence in Family Proceedings was published by LexisNexis/Family Law last year.
He writes a blog at DB Family Law