Family courts do not occupy a desert island where common law concepts are suspended

My series of blog posts for ICLR started with a reference – supplied by the editor – to Lord Sumption’s comment in Prest v Petrodel Resources Ltd [2013] UKSC 34, [2013] 2 AC 415, [2013] 2 FLR 732. On the subject of piercing the ‘corporate veil’ in the context of Matrimonial Causes Act 1973 (MCA 1973) s 24(1)(a) (which deals with the powers of the family courts to adjust property as between spouses where one was “entitled, either in possession or reversion”) Lord Sumption said:

“[37] … An ‘entitlement’ is a legal right in respect of the property in question. The words ‘in possession or reversion’ show that the right in question is a proprietary right, legal or equitable. This section is invoking concepts with an established legal meaning and recognised legal incidents under the general law. Courts exercising family jurisdiction do not occupy a desert island in which general legal concepts are suspended or mean something different. If a right of property exists, it exists in every division of the High Court and in every jurisdiction of the county courts. If it does not exist, it does not exist anywhere.”

Over the past few weeks a variety of cases in proceedings under Civil Procedure Rules 1998 (CPR 1998) (which specifically excludes family proceedings: CPR 1998 r 2.1(2)) are illustrated here from a general and family proceedings perspective. The intent here is to show the extent to which these civil proceedings cases rescue family proceedings from any “desert island” in which any lawyers or parties think family proceedings may languish.

A second post will look alternative dispute resolution (ADR) in proceedings generally after the Court of Appeal decision in Churchill v Merthyr Tydfil County BC [2023] EWCA Civ 1416 (29 November 2023). Mediation or ADR was an area which till twenty-five years ago – with the introduction of CPR 1998 – most family lawyers would have regarded as uniquely their territory and that of their clients. The subject – as “conciliation” – was developed by family lawyers and academics in Bristol in the mid-1970s after the “Finer Report” (Report of the Committee on One-Parent Families (July 1974) (Cmnd 5629) chaired by Sir Morris Finer).

Three of these cases (at least) raises issues of precedent: what is and is not a precedent as the ratio of a decision (see Churchill v Merthyr Tydfil in Part 2); what of the Privy Council’s view in Finzi (below) of what Lord Sumption says in Takhar; and how does judicial failure to follow parties agreed or established issues (as considered in this post) leave the development of precedent? These precedent points will be considered in Part 3.

Evidence and its acceptance by the court

In TUI UK Ltd v Griffiths [2023] UKSC 48; [2023] 3 WLR 1204 (29 November 2023), (on appeal from [2021] EWCA Civ 1442; [2022] 1 WLR 973) the Supreme Court considered the way in which evidence – in this case expert evidence – should be treated by the court where it has not been challenged by a party opposing the party for whom the evidence is called. The defendant (TUI) had not challenged expert evidence in cross examination; but the first instance judge accepted TUI’s subsequent submission which impugned the claimant’s witness’s evidence. The judge held the expert evidence did not establish causation of the claimant’s claim.

Lord Hodge (with whom Lord Lloyd-Jones, Lord Briggs, Lord Burrows and Lord Stephens agreed) based his decision on the rule in Browne v Dunn (1893) 6 R 67. He held (TUI at [70(i)]) that

“the general rule in civil cases [including family cases]… is that a party is required to challenge by cross-examination the evidence of any witness of the opposing party on a material point which he or she wishes to submit to the court should not be accepted”.

Lord Hodge summarised the court’s view at [70]. He began at [70(ii) and (iii)] by stressing that in an adversarial system of justice “the purpose of the rule is to make sure that the trial is fair” which includes “fairness to the party who has adduced the evidence of the impugned witness”. Maintaining the fairness of the trial includes fairness to the witness whose evidence is being impugned, whether on the basis of dishonesty, inaccuracy or other inadequacy: see [70(iv)].

“Cross-examination gives the witness the opportunity to explain or clarify his or her evidence. That opportunity is particularly important when the opposing party intends to accuse the witness of dishonesty, but there is no principled basis for confining the rule to cases of dishonesty” (at [70](vi)]).

The Court stressed that rule in Browne v Dunn, as set out by the Court at [70(i)], applies to witnesses of fact just as it does to expert witnesses.

Issues in adversarial litigation

A similar instance of a judge accepting a defendant’s submissions to the detriment of the claimant’s case where a defendant had not challenged a claimant’s case arose in Clements-Siddall v Dunbobbin Hotels Ltd [2023] EWCA Civ 1300 (7 November 2023). In that case the defendant relied on a factual issue not challenged by him in the course of the hearing. The judge permitted this in the absence of any clear challenge to the defendant’s submissions by the claimant’s own advocate.

One of the duties of the parties to litigation, or of their advisers, is “clearly to identify the issues that arise in [their] litigation, so that each has the opportunity of responding to the points raised by the other” (said the Court of Appeal in Clements-Siddall at [77(i)]). In that case the court even found itself in the unusual position of allowing an appeal on a reversal of the judge’s findings of facts.

The case turned on a fall which caused serious injury to the claimant and her then unborn child said by the claimant to have been caused by the defendants. The claim was on behalf of the child. The judge had permitted himself to make findings against the claimant on evidence not in reality in issue before him (see [88]). Stuart-Smith LJ (with whom Moylan and Lewis LJJ agreed) found, in consequence, that “to admit and decide the issue [as the judge had done] was procedurally unfair and wrong” (at [97]).

In his review of how parties should deal with trial issues, Stuart-Smith LJ reflected (at [77]) on “general principles about the formulation of issues in adversarial litigation”, including the following:

  • First Stuart-Smith LJ recited the point made earlier on the need for parties’ clearly to define of issues (and see Al-Medeni v Mars UK Ltd [2005] EWCA Civ 1041 at [21] per Dyson LJ).
  • The function of the judge is to adjudicate upon the issues as identified by the parties alone: Al-Medeni (at [21]). In mostly civil proceedings this will be by defining issues on the basis of pleadings.
  • Adherence to the issues that have been identified by the parties (in particular by the pleadings) prevents the trial from becoming a disorderly free-for-all: Dhillon v Barclays Bank[2020] EWCA Civ 619 per Coulson LJ. The point about a party pleading a case and the court retaining sight of the issues for trial was so that at any hearing “the parties could properly marshal their arguments… and so that, in due course, the court would know what issues it was being asked to decide…”. (at [19]).
  • The task of the courts is to do justice between the parties in relation to the way in which they have framed and prosecuted their respective cases, rather than to carry out some wider inquisitorial function as a searcher after truth: Sainsbury’s Supermarkets Ltd v MasterCard Inc [2020] UKSC 24; [2020] Bus LR 1196, at [242].

What is not permitted is for a judge to air his own views or to depart from established precedent authority (see eg per Peter Jackson LJ in Re J (Children) [2023] EWCA Civ 465, [2023] 1 WLR 3348 (28 April 2023) of the approach of Mostyn J in RL v Nottinghamshire County Council [2022] EWFC 13, [2022] 4 WLR 103, [2022] 2 FLR 1012 (8 March 2022) where the judge had decided a case on the basis of his own views not on Court of Appeal authority).

As anticipated in the case of most civil proceedings (see (2) above), family proceedings pleadings are not clearly defined by FPR 2010. Definition of issues is not therefore generally possible from pleadings alone. That said, the case management judge or the parties must be in a position to define issues – that is to say the matters on which the parties do not agree – and to open their case at a final hearing or a represented party, so that from the outset everyone agrees on what they are disputing. In that way the four features Stuart-Smith LJ identified can govern the way in which any hearing proceeds. FPR 2010 specifically requires only that the parties define issues at the first financial relief directions appointment: only then and only in financial order proceedings. For no other types of family proceedings (eg children, domestic abuse, declarations of parentage, validity of marriage or ‘disputed’ dissolution proceedings etc) are the rules clearly prescriptive about definition of issues.

Fresh points on appeal

Another pleading point arose in Azhar v All Money Matters t/a TFC Home Loans [2023] EWCA Civ 1341 (16 November 2023) the Court of Appeal was concerned with the extent to which a party was entitled to raise a fresh issue on appeal. A circuit judge on appeal from a deputy district judge refused to permit this. The Court of Appeal said he was right. The fresh point should have been pleaded in the original hearing.

Lewison LJ (sitting with Nugee and Falk LJJ) cited with approval (at [19] and [20]) the comments of Snowden J in Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337, [2019] 4 WLR 146 where fresh points are sought to be taken on appeal:

“[27] At one end of the spectrum are cases such as the Jones case in which there has been a full trial involving live evidence and cross-examination in the lower court, and there is an attempt to raise a new point on appeal which, had it been taken at the trial, might have changed the course of the evidence given at trial, and/or which would require further factual inquiry. In such a case, the potential prejudice to the opposing party is likely to be significant, and the policy arguments in favour of finality in litigation carry great weight.

[28] At the other end of the spectrum are cases where the point sought to be taken on appeal is a pure point of law which can be run on the basis of the facts as found by the judge in the lower court… In such a case, it is far more likely that the appeal court will permit the point to be taken, provided that the other party has time to meet the new argument and has not suffered any irremediable prejudice in the meantime.”

Fresh evidence on a set aside application

Though cases of an application to set aside an order may not be common, they raise a number of points on jurisdiction (Matrimonial and Family Proceedings Act 1984 s 31F(6), FPR 2010 r 4.1(6) or not); and in what circumstances. In Finzi v Jamaican Redevelopment Foundation Inc and others [2023] UKPC 29, [2023] WLR(D) 445 (27 July 2023) (on appeal from the Court of Appeal of Jamaica) the Privy Council disallowed an appeal by a person who had failed to bring forward alleged evidence of fraud which was available to him when the hearing which lead to the court order sought to be set aside.

The purpose of a settlement agreement, said the Board, was to put an end to further disputation in the same way as a judgment. As such it engaged the principle of finality in litigation. There was no justification for exempting from the scope of that protection actions alleging that a settlement or judgment had been obtained by fraud where the evidence relied on had already been known to the claimant at the time of the settlement or judgment. Any such claim to override was likely to be regarded as abusive unless the claimant was able to show a good reason which had prevented or significantly impeded the use of the evidence in the original action.

The ICLR case summary (at [2023] WLR(D) 445) cites verbatim the extract from the Board’s opinion italicised below:

“[59] … In the opinion of the Board, the statements of Lord Sumption in [Takhar v Gracefield Developments Ltd [2019] UKSC 13, [2020] AC 450 (20 March 2019)] on which the Court of Appeal relied in [Park v CNH Industrial Capital Europe Ltd (trading as CNH Capital) [2021] EWCA Civ 1766; [2022] 1 WLR 860] do not bear the weight put on them.

[60] It is important not to lose sight of the basic tenets of common law reasoning that every judgment must be read in context, by reference to what was in issue in the case, and that it is only the ratio of the decision which establishes a precedent and not obiter dicta. All too often advocates treat the analysis of cases as if it were simply an exercise in looking at the language used by judges, forgetting that it is not particular verbal formulations that make the common law but the principles on which the actual decisions in cases are based.”

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