Judicial comity and the common law
David Burrows on the conventional respect shown by judges towards each others’ decisions, even when not strictly bound by the rules of precedent, and how it applies in particular to the subject of anonymity in family cases. … Continue reading
Law reports and the common law
Substantive law in the United Kingdom is made up of statute law and common law, and – not relevant here – the overarching European law. The common law (precedent) can only be overridden by statute (ie an Act of Parliament), by a later decision of the Supreme Court, by the Court of Appeal overriding the decision of a lower court, and, in extremis (as explained later), by a High Court (puisne) judge of a judge of co-ordinate level and below. Mostly the object of the judges at all higher levels is to keep the law on a basis that is certain and, as far as possible, predictable. As a body of law which is judge-made, the common law can only be deduced from reading and piecing together what is in law reports, “the books”.
Certainty in the development of the common law is explained by Tom Bingham (orse Lord Bingham of Cornhill) in his Rule of Law (Penguin 2010) at p 45: “It is one thing to move the law a little along a line on which it is already moving,” he said. “It is quite another to seek to recast the law in a radically innovative way… That is to make it uncertain and unpredictable.” Further, said Lord Bingham, it was also “very tough on the loser in the particular case [where] the goal posts have been moved during the course of the litigation.”
Certainty in the common law is a pre-eminent reason for comity of High Court judge’s decisions, the subject of this post, especially on the subject of anonymity and amongst family judges. The common law on what is intended by anonymity is codified in the Civil Procedure Rules 1998 (CPR 1998) r 39.2(4) as: “The court may order that the identity of any person must not be disclosed if it considers non-disclosure necessary in order to protect the interests of that person.” This is applied also in cases under the Family Procedure Rules 2010 (FPR 2010).
However, there is no real consistency on publication of parties’ names (ie anonymity) between Family Division puisne judges. As matters stand in family proceedings at the outset of a case, or as a final hearing approaches, a party does not know which judge will try their case; and therefore that party does not know whether their name will be included in any judgment, or how that will affect the privacy of their children.
Comity and the Family Division puisne judge
Recently, for example, in Tsvetkov v Khayrova  EWFC 130 (4 August 2023) Peel J refused anonymisation to the parties with the comment that:
“ I am conscious that in making some comments on [anonymity] I am treading on ground which is not entirely solid, as a result of a number of judgments of Mostyn J which have cast doubt upon the long established practice pursuant to which the starting point (and usually the end point) has been that financial remedy proceedings are not reportable, save with permission of the court.”
Judgments are mostly anonymised, Peel J went on to point out. He and Mostyn J had failed to take account of common law rules as to comity. With respect to Peel J, it should not be open to a High Court judge to make a comment such as this. He and Mostyn J are bound by principles of comity between judges of equivalent level. Comity applies not only to judges in the Family Division, but also to puisne judges those across all divisions and at Upper Tribunal level.
Puisne judges are bound by each other’s decisions, unless they consider – for clear reason – that the earlier judge is wrong. This was explained by Lord Goddard in the King’s Bench Divisional Court as long ago as 1947 in Police Authority for Huddersfield v Watson  KB 842. He said (at 848), in a passage which is relied on still at High Court level in 2023:
“I can only say for myself that I think the modern practice, and the modern view of the subject, is that a judge of first instance, though he would always follow the decision of another judge of first instance, unless he is convinced the judgment is wrong, would follow it as a matter of judicial comity.”
Comity is part of the law’s concern to maintain continuity in the common law and operates on a unified basis across all divisions; and it involves consideration of what judges in other divisions (eg KBD) are saying on the subject.
Comity at common law: a hierarchical system of precedent
Comity means respecting the decisions of other judges of a co-ordinate level; and of course, of being bound by the decisions of judges at a higher level. With the subject of anonymity, comity between all puisne judges is a matter of common law. Operation of precedent – of which adherence to judicial comity is part – is an aspect of the hierarchical system of English and Welsh (and many other common law) courts. That system depends on lesser courts following the decisions of higher courts (precedents), save in the case of the Supreme Court (as successor to the House of Lords), which can review and replace its earlier decisions (Practice Statement (Judicial Precedent)  1 WLR 1234; and see Davis v Johnson  UKHL 1,  AC 264).
Puisne judges are bound by each other’s decisions across all divisions of the High Court, unless they consider – for clear reason – that the earlier judge is wrong. Huddersfield v Watson (above) explains this. Comity was explained by Lord Neuberger in Willers v Joyce (No 2)  UKSC 44,  AC 843:
“ So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so.”
And coming up to date: in Etihad Airways PJSC v Flöther  EWHC 3107 (Comm),  QB 793, for example, Jacob J at  cited Huddersfield with approval and Lord Neuberger’s above comment upon it. In Lancashire County Council v PX, ZX and YX  EWHC 2379,  1 FLR 776 Judge Burrows (sitting as a High Court judge) at  relied upon the Huddersfield case.
What cannot – surely? – be the law is that a judge can, without notice to anyone, change his or her mind. That would mean that a judge must have comity with all other, save his own, previous decisions. In Gallagher v Gallagher  EWFC 52,  1 WLR 4370, Mostyn J said at  that he had “disavowed” his earlier position on anonymity, and:
“I reject any suggestion that I violated the rule of stare decisis in changing my mind. I was not bound by my previous view. High Court judges are not formally bound by decisions of other High Court judges, but they should generally follow their decisions unless there is a powerful reason for not doing so).”
He cited the above passage from Willers v Joyce. This view of comity cannot – surely? – have been what Lords Goddard or Neuberger had in mind?
Mostyn J’s previous position (as expressed in L v L (Ancillary Relief Proceedings: Anonymity)  EWHC 2621,  1 WLR 1259) was that financial proceedings are private business and are therefore protected by anonymity principle, entitling the parties to anonymity as well as to the preservation of the confidentiality of their financial affairs. That was clearly the ratio of his decision (reported as a point of practice). This is probably also the view of most other Family Division judges.
He explained in Gallagher that his preeminent reason for disavowal was that:
“I now acknowledge my previous view as fundamentally erroneous, in that it failed to recognise and follow the binding decision of the House of Lords in Scott v Scott  UKHL 2;  AC 417. I would contend that far from failing to adhere to the rule of stare decisis, I have now applied it unwaveringly. I have not sought to state the law as I want it to be, but rather to state it, without deviation, as laid down by the House of Lords.”
A problem with this is that in so finding Mostyn J does not identify the ratio of Scott as explained later. He conflates too many aspects of the open justice principle in his definition only of anonymity.
Common law: application in family proceedings
Why should all this apply to family proceedings? In Prest v Petrodel Resources Ltd  UKSC 34,  2 AC 415 at  Lord Sumption made the point: “Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different.” Munby LJ made the same point in Richardson v Richardson  EWCA Civ 79,  2 FLR 244: “ … The Family Division is part of the High Court. It is not some legal Alsatia where the common law and equity do not apply.” (“Alsatia” was the name of a lawless area by Blackfriars – not far from King’s Bench Walk, today – where alleged criminals could seek sanctuary in the seventeenth century.)
Principles of comity, stare decisis (decisions stand) and of anonymity apply in the same way across all divisions. A judge of the Family Division must define “anonymity” in the same way as one in (say) the King’s Bench Division (see eg Lupu v Rakoff  EWHC 2525 (QB) (30 September 2019), Nicklin J; Sicri v Associated Newspapers Ltd  4 WLR 9,  EWHC 3541 (QB) (6 December 2021) Warby J). The common law means the same thing in civil (including family) proceedings and in criminal cases (some of the most important anonymity/confidentiality cases arise from the police breaching a person’s privacy (eg Richard v BBC  EWHC 1837 (Ch),  Ch 169 (18 July 2018), Mann J). And privacy for parents may also import privacy for children of their family (PJS v News Group Newspapers Ltd  UKSC 26,  AC 1081,  2 FLR 251). None of these civil proceedings cases are referred to by Mostyn J.
Anonymity as viewed by Family Division judges
So what in summary do the recent anonymity decisions of Mostyn J and Peel J in the Family Division say is the ratio of what they are differing from other judges on the subject of anonymity? By what principle do they say they are bound? A summary of what confidentiality principles apply to anonymity means in court proceedings will be offered in another post; but what do these two puisne judges say are the bases of the law they are dealing with in the recent cases (all since 12 April 2022) and where naming of parties has been ordered, notably Xanthopoulos v Rakshina  EWFC 30,  1 FLR 388, Gallagher v Gallagher (above); Augousti v Matharu  EWHC 1900 (and Tsvetkov v Khayrova (above)).
The outcomes of each case (the decisis) are clear enough: the names of parties to financial relief proceedings shall be published (and in Re PP (A Child: Anonymisation)  EWHC 330,  4 WLR 48 per Mostyn J, the names of the hospital trust and of the geographical area of the local authority in the case). It is the reasoning (or rationes) which is in question to define how comity should operate.
Open justice and anonymity
Four different, albeit related, open justice principles are in issue:
(1) Hearing: in open court or in private?
(2) Should court documents be released to non-parties (such as journalists) before or after judgment?
(3) Anonymisation: should the names of the parties or others in the proceedings (hospital trusts, local authorities, witnesses) be publicised?
(4) Publication of the judgment (albeit redacted as to the names of children)?
In Xanthopoulos v Rakshina (above) Mostyn J dealt with an application that the parties be anonymised; but no more than that. He accepted ( EWFC 30 at ) that CPR 1998 r 39.2(4) (general rule: hearings to be in public) codifies the common law, and thus applies to family proceedings. He treated Clibbery v Allan  EWCA Civ 45,  Fam 261 as obiter (at ), though in law it dealt with release of documents which is not a subject directly in issue here (see (2) above). At , the judge holds wrongly (it is submitted) that a rule (ie not a statute or judgment) letting in journalists to family proceedings “has the effect of completely overturning the reasoning of the Court of Appeal” in Clibbery. As Baroness Hale in Supreme Court has affirmed (see Dunhill v Burgin (Nos 1 and 2)  UKSC 18,  1 WLR 933 at ): “rules cannot change substantive law unless expressly permitted so to do by statute”. Clibbery continues to define the common law.
Mostyn J conflates the four subjects above where he considers Scott v Scott  UKHL 2,  AC 417 and how it affects his decision on anonymity. The issue for decision (and to lead to the ratio) of the House of Lords in Scott is stated very simply in the ICLR headnote; or by Viscount Haldane LC  AC 417 at 432:
“The question which we have now to decide necessitates consideration of the jurisdiction to hear in camera in nullity proceedings, and of the power of the judge to make an order which not only excludes the public from the hearing, but restrains the parties from afterwards making public the details of what took place.”
Nothing is said in that statement by the Lord Chancellor about the naming of parties. It was not an issue before the House. Because a case is heard in open court does not mean parties necessarily are named (see eg XW v XH  EWCA Civ 549,  1 WLR 3757,  2 FLR 431). Scott deals only with hearings in open court and release of information afterwards ((1) and (2) above). Indeed the headnote – probably correctly – is more economical: “The Probate, Divorce and Admiralty Division [now Family Division] has no power, either with or without the consent of the parties, to hear a nullity suit or other matrimonial suit in camera [ie in private]…”
The recent family proceedings judgments considered here deal only with anonymisation. Mostyn J accepts that the subject is defined by the common law and as codified not only in CPR 1998 r 39.2(4) but also in FPR 2010 r 7.30(5) (for disputed dissolution cases: per Gallagher above).
In the context of the Family Division as a whole there is no overarching judicial or other definition of anonymity and of its European Convention implications (see eg Murray v Big Pictures (UK) Ltd  EWCA Civ 446,  Ch 481,  2 FLR 599). That is a task family lawyers must confront before they take their anonymity jurisprudential journey any further, bearing in mind that the term applies across all courts. That is, they must take account of the substantial recent jurisprudence of, for example, the KBD and Court of Appeal, and of the Supreme Court and House of Lords since Campbell v MGN Ltd  UKHL 22,  2 AC 457.