To what extent do we apply precedent in financial remedies? Now that cases are routinely ‘reported’ on Bailii, what even counts as precedent? Can a case be cited even though it isn’t in the Official Reports or the Family Law Reports? Is there any difference nowadays between an ‘authority’ and what amounts to no more than an example of a judge’s decision in a given case on different facts?
Precedent and Family Law
As any law student knows, England and Wales has a common law legal system. Central to this is the concept of precedent, under which decisions of the higher courts are binding on the lower courts. In Willers v Joyce (re Gubay)  UKSC 44, Lord Neuberger summarised the doctrine of precedent as follows:
”  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”
To what extent does this apply in family law (and more particularly, financial remedies) where the law is discretionary and a more flexible approach is taken to precedent? In B v B (Ancillary Relief)  EWCA Civ 284, Wall LJ reflected that
 … the essence of any judicial discretion lies in its application to particular facts, and since each case requires its own particular resolution, the concept of fairness becomes, essentially a matter of judgment. In this context I am reminded of the wise words of Ormrod LJ, in Martin (BH) v Martin (D)  Fam 12… spoken more than 30 years ago on 10 March 1977, but still, in my judgment, as applicable today as when they were first uttered:
‘…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 Act of 1973, 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. If property suddenly became available all over the country many of the rationes decidendi of the past would be quite inappropriate.’
Authorities v Examples
What this often leads to is a Cole Porter approach to the citation of case law: anything goes. Where equal weight is attached to a decision of (say) Mr Justice Mostyn as the Court of Appeal (or higher), or where any decision is relied upon, regardless of whether it is in any way authoritative (i.e. setting out new law or summarising existing principles).
Bailii is a tremendous resource, which freely makes available a huge corpus of case law. However, one downside of the availability of e even mundane High Court decisions (where even a decision to adjourn is ‘reported’) leads us to chaos where law cited in scattergun approach. A distinction is rarely drawn between a case which sets out to develop or condense the law
So, are there any rules? And if so, what are they?
At the risk of what Basil Fawlty would describe as stating the bleeding obvious, at the apex of the judicial pyramid is the Supreme Court, then the Court of Appeal, High Court, circuit judge, district judge and finally magistrates.
Mrs Justice Baron, whose early death was a tragedy as much for the Family Division as it was a personal one, put it best at first instance in Radmacher. (Some would argue that her decision in Radmacher was a good deal fairer than the outcome finally achieved in the Supreme Court, but that falls outside the compass of this blog). In Radmacher (which at first instance was anonymised as NG v KR  EWHC 1532 (Fam), Baron J commented:
 At the outset I remind myself that I decide this case in accordance with English Law and tradition. In terms of financial relief upon divorce I am bound by the terms of the Matrimonial Causes Act 1973 (“the Act”) as it has been interpreted in the House of Lords and the Court of Appeal. Decisions of my fellow 1st Instance judges may also be persuasive and/or illuminating. Under statute my first consideration is the two children of the family whilst they are minors. I must also take account of all the circumstances of the case and the factors set out in Section 25 of the Act to produce a result which is fair, just and does not discriminate against either party on the grounds of gender or for any other reason. Although fairness has been stated to be in the “eye of the beholder” and I am conscious that I must apply the Law carefully and clearly.
Accordingly, a High Court judge must yield to the Court of Appeal or Supreme Court (which The House of Lords morphed into on 30 July 2009) unless the decision of the higher court was reached through not being properly appraised of the law (i.e. per incuriam, see Mostyn J in UL v BK  EWHC 1735 (Fam) at § 27-29)
What is citable as an authority?
The key Practice Direction which is often overlooked in the family court is the Practice Direction of 9 April 2001: Citation of Authorities. For reasons best known to the law reports, this appears in the Weekly Law Reports (the enjoyably binary  1 WLR 1001) but not in the Family Law Reports.
While this is directed to civil cases, there is no question that it also applies to the family court, as made clear in a recent amendment to the FPR Practice Direction 27A (emphasis added)
[4.3A.2] Attention is drawn to paragraph 6 of Practice Direction (Citation of Authorities)  1 WLR 1001 and to Practice Direction (Citation of Authorities)  1 WLR 780 (both set out in The Family Court Practice) which must be complied with. The reference to “county court cases” in para 6.1 of the first practice direction should be read as including family court cases decided by a judge other than a judge of High Court judge level. Therefore, a judgment on an application attended by one party only, or on an application for permission to appeal, or that only decides that the application is arguable, or by the county court, or in the family court of a judge other than a judge of High Court judge level, may not be cited or included in the bundle of authorities unless either (i) the judgment clearly indicates that it purports to establish a new principle or to extend the present law or (ii) the court for good reason has specifically directed otherwise.
What cannot be cited:
The key provisions of the 2001 guidance are set out from § 6. In particular, § 6.2 provides that the following cannot be cited as authority “…unless it clearly indicates that it purports to establish a new principle or to extend the present law… that indication must take the form of an express statement to that effect.”
- “Applications attended by one party only;
- Applications for permission to appeal;
- Decisions on applications that only decide that the application is arguable;
- county court cases [extended to CJ and DJ decisions in the county court] unless: (b) cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available.”
Does the judgment purport to create new law?
7.1 Courts will in future pay particular attention, when it is sought to cite other categories of judgment, to any indication given by the court delivering the judgment that it was seen by that court as only applying decided law to the facts of the particular case; or otherwise as not extending or adding to the existing law.
7.2 Advocates who seek to cite a judgment that contains indications of the type referred to in paragraph 7.1 will be required to justify their decision to cite the case.
State your proposition
[8.1] Advocates will in future be required to state, in respect of each authority that they wish to cite, the proposition of law that the authority demonstrates, and the parts of the judgment that support that proposition. If it is sought to cite more than one authority in support of a given proposition, advocates must state the reason for taking that course.
8.4 The statements referred to in paragraph 8.1 should not materially add to the length of submissions or of skeleton arguments, but should be sufficient to demonstrate, in the context of the advocate’s argument, the relevance of the authority or authorities to that argument and that the citation is necessary for a proper presentation of that argument.
Accordingly, applications for permission to appeal are not citeable. Decisions of a CJ or DJ are not citeable unless they arise in relation to an issue in respect of which no authority of a higher level is available. For the best, most flagrant breach of this Practice Direction, look no further than the “authority” of the “meal ticket for life” case of Wright v Wright  EWCA Civ 201 which in truth was authority for nothing at all.
Alexander Chandler, 28 June 2020