Citation of authority: what to be cited?
The anticipated storage of all judgments by the National Archives is described as ‘massive’ by our editor , and by the government website as a ‘Boost for open justice as court judgments get new home’. But how massive is it, in the absence of self-denying ordnances from all lawyers, whether in court or in correspondence with one another?
The critical question for lawyers is what can reasonably be cited. What – properly so called – is precedent? What forms the common law (ie judge-made law)? For present purposes let it be agreed that the decisions of the High Court and higher (Court of Appeal and Supreme Court) and of Upper Tribunals are binding on all courts below them; and the higher courts bind the courts below them and each other. In this context only the Supreme Court can change the law.
What, then, is a decision of these courts and of the Upper Tribunal? It is the judge’s reasoning which leads to the order which the court makes (the judges ratio decidendi) on the issue before the court. What is not the judge’s ratio is not law. It is said ‘by the way’ (obiter). It may be of interest depending on the level of judge. An example of the obiter principle is the public policy rule in Calderbank v Calderbank  Fam 93;  3 WLR 586; (1975) FLR Rep 113 (CA), namely that parties can negotiate behind a without-prejudice screen which can only be lifted, and only on issues of costs, if parties – in a variety of jurisdictions – head their letters ‘without prejudice save as to costs’ (see discussion in Sternberg Reed Solicitors v Harrison  EWHC 2065 (Ch),  Ch 223 (HHJ Hodge QC sitting as a High Court judge). Calderbank on the costs point is obiter; but most civil litigation lawyers would agree that it is highly persuasive.
So a High Court judge’s decision on a case is precedent if it ‘moves the law along’, as Lord Bingham terms it (The Rule of Law (Penguin, 2010). On the other hand, if it is merely an exercise of a judge’s discretion – however important to the parties themselves – it is of no precedent value. If the assertion of practice or procedure is in a rule or a practice direction, it is not the law unless backed by statute or common law.
Arbiter of precedent
Pausing there: I do not know how ICLR decide what to put in their reports  ; but if all reports are to be stored in some archive – even if only virtual – there must be an arbiter as to what is of value, what may be of interest (persuasive), and what is near to rubbish. I remember Booth J (Dame Margaret Booth who died on 1 January this year), sitting in the Family Division in the 1980s complaining then – long before BAILII – of ‘over-reporting’. I was trying to cite to her a report which I had seen in the Legal Action Group bulletin, which she did not recognise as an adequate source. Later – too late – I found the case reported in the Family Law Reports as Prow (formerly Brown) v Brown (1983) 4 FLR 352, CA.
The problem is especially acute in family proceedings. For example, in the financial relief field the case of OG v AG (Financial Remedies: Conduct)  EWFC 52,  1 FLR 1105 (29 July 2020), Mostyn J (be it noted, not reported – at least not yet – in ICLR) has been cited frequently by financial relief lawyers. It is said to be the latest word on the need for realistic negotiation between parties. In it Mostyn J (who is a member of the Family Procedure Rule Committee (FPRC) which drafts practice directions) said
“ The revised para 4.4 of FPR 2010 PD 28A is extremely important. It requires the parties to negotiate openly in a reasonable way. To take advantage of the husband’s delinquency to justify such an unequal division is not a reasonable way of conducting litigation. And so, the wife will herself suffer a penalty in costs for adopting such an unreasonable approach.
“ It is important that I enunciate this principle loud and clear: if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will likely suffer a penalty in costs. This applies whether the case is big or small, or whether it is being decided by reference to needs or sharing.”
FPR Practice Direction 28A para 4.4 says:
“In considering the conduct of the parties for the purposes of rule 28.3(6) and (7) (including any open offers to settle), the court will have regard to the obligation of the parties to help the court to further the overriding objective (see rules 1.1 and 1.3) and will take into account the nature, importance and complexity of the issues in the case. This may be of particular significance in applications for variation orders and interim variation orders or other cases where there is a risk of the costs becoming disproportionate to the amounts in dispute. The court will take a broad view of conduct for the purposes of this rule and will generally conclude that to refuse openly to negotiate reasonably and responsibly will amount to conduct in respect of which the court will consider making an order for costs. This includes in a ‘needs’ case where the applicant litigates unreasonably resulting in the costs incurred by each party becoming disproportionate to the award made by the court. Where an order for costs is made at an interim stage the court will not usually allow any resulting liability to be reckoned as a debt in the computation of the assets.”
Let us unpick those two: a statement from Mostyn J and a practice direction. What Mostyn J says is obiter. It is not part of the ratio of his decision, which related to in what proportions a couple should divide up their money; and, how much either should pay for the other’s costs. Both those decisions for the court are entirely matters for a judge’s discretion: money, per Matrimonial Causes Act 1973 ss 23, 24 etc; and costs per Senior Courts Act 1981 s 51(7) and Civil Procedure Rules 1998 r 44.2. The case thus far is strictly of no precedent value.
And what of the practice direction which the judge says is “extremely important”. The first thing is to work out what the convoluted language of para 4.4 means. That means – it sounds basic to say it – analysing the words used, not trying to parse what FPRC thought they were saying. For a layperson: what do such terms as “variation order” (Matrimonial Causes Act 1973 s 31; or Matrimonial and Family Proceedings Act 1984 s 31F(6), for example); or what is a “needs” case?
Clear “financial landscape”
The remarkable point, taking both passages together, is that Mostyn J should say that “once the financial landscape is clear, [if] you do not openly negotiate reasonably, then you will likely suffer a penalty in costs” (my emphasis added). That is not the law. As English and Welsh law now stands no-one can tell a party to litigation or intended litigation “openly [to] negotiate”. For good or ill, that is why we have the without prejudice rule. It may be wise to negotiate; but unless privilege is waived by both parties (a point made by Nicholas Mostyn QC, then a deputy High Court judge in Le Foe v Le Foe and Woolwich plc  2 FLR 970) such negotiation cannot be “open”, as a matter of law.
Many would say that that was trite law: see such cases as Calderbank v Calderbank  Fam 93, CA; Chocoladefabriken Lindt & Sprungli AG v The Nestlé Co Ltd  RPC 287, Sir Robert Megarry V-C (any negotiation is privileged even if you do not mark correspondence “without prejudice”; Rush & Tompkins Ltd v Greater London Council  AC 1280 per Lord Griffiths at 1299 (WP privilege is founded on the public policy of encouraging litigants to settle their differences rather than litigate them to a finish); Unilever plc v The Procter & Gamble Co  1 WLR 2436 (where Robert Walker LJ sets out his list of eight circumstances in which negotiation privilege (ie WP privilege) can be overridden); Ofulue v Bossert  UKHL 16,  1 AC 990; and Oceanbulk Shipping & Trading SA v TMT Asia Ltd  UKSC 44,  1 AC 662. And most of those cases are in House of Lords or Supreme Court, which are certainly binding on all of us.
Perhaps para 4.4 is evidence of the FPRC trying to find a fig-leaf to cover their jettisoning in 2006 of the discipline of Calderbank letters (now in Family Procedure Rules 2010 r 28.3(8)). But that is a substantial subject, for another day….
Citation of authority: lawyer’s self-restraint
Back to law reports and citation of authority: that in itself may need more than the various citation of authorities practice directions we now have (eg Practice Direction (Citation of Authorities)  1 WLR 1001, Lord Woolf LCJ). It must be a matter of common law not statute. And in the meantime all of us, as practising lawyers (advocates and advisers alike), should surely exercise self-restraint as to what we cite? And we – and law reporters, please – must ensure that we distinguish between binding precedent, persuasive comment (obiter and lower courts’ judgments) and mere exercise of judicial discretion. The first must be reported, the second only with caution, and the third very rarely indeed.
 Per @maggotlaw on Twitter.
 See The ICLR guide to reportability
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