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Mostyn J in CB v EB: Practice Directions etc.

You know you’ve lost a case when the judgment begins with a compliment.

When a judge describes your argument as ‘elegant’, you’re in trouble. In CB v EB [2020] EWFC 72, an interesting recent decision of Mostyn J, the judgment starts by describing the argument of H’s leading counsel as “bold but eloquent”. To the lay client this seems like a judicial thumbs-up; to a lawyer, it’s time to bookmark the costs rules.

In CB v EB the husband sought to set aside two consent orders made in 2010. He put forward two main arguments: the first (that the orders remained executory/ Thwaite v Thwaite [1982] Fam 1) was abandoned before the hearing; the second involved the argument (the ‘bold’ one) that the family court exercised an almost unfettered power to set aside any order.  

This argument was based on Section 31F(6) of the Matrimonial and Family Proceedings Act 1984, which was amended by the Crime and Courts Act 2013, as part of the legislation that paved the way for the family court which came into existence on 22 April 2014.

H argued that the language of S.31F(6) was framed more widely than the old Order 37 r.1 of the County Court Rules (remember them, older lawyers?), and amounted to break from the past, whereby previous case law did not apply. In support of the contention that the family court’s powers were new, wider and more flexible, H prayed in aid the following passage from FPR PD9A para 13.5:

“An application to set aside a financial remedy order should only be made where no error of the court is alleged. If an error of the court is alleged, an application for permission to appeal under Part 30 should be considered. The grounds on which a financial remedy order may be set aside are and will remain a matter for decisions by judges. The grounds include (i) fraud; (ii) material non-disclosure; (iii) certain limited types of mistake; (iv) a subsequent event, unforeseen and unforeseeable at the time the order was made, which invalidates the basis on which the order was made.” 

Mr Justice Mostyn disagreed:  

[54] I do not agree with Mr Feehan QC. Unsurprisingly, I agree with the editors (of whom I am one) of Financial Remedies Practice 2020/21 (Class Publishing 2020) who wrote at para 4.32:

“The terms of rule 4.1(6) or rule 9.9A or section 17(2) of the Senior Courts Act 1981 or section 31F(6) of the Matrimonial and Family Proceedings Act 1984 do no more than to enable an application to set aside to be made under a ground of challenge recognised by the law as capable of being made at first instance rather than by way of appeal”

The status of a Practice Direction

An interesting part of the judgment is the court’s reflection of the status of a Practice Direction. Mostyn J asked rhetorically:

[59] What is the status of practice directions? In Godwin v Swindon Borough Council [2002] 1 WLR 997, decided before the changes made by the 2005 Act, May LJ stated at [11]:

“Practice directions are subordinate to the rules: see paragraph 6 of Schedule 1 to the 1997 Act. They are, in my view, at best a weak aid to the interpretation of the rules themselves.”

Similarly, in U v Liverpool City Council (Practice Note) [2005] EWCA Civ 475, [2005] 1 WLR 2657, again decided before the changes made by the 2005 Act took effect, Brooke LJ stated at [48]:

“Practice directions provide invaluable guidance to matters of practice in the civil courts, but in so far as they contain statements of the law which are wrong they carry no authority at all.”

[60] In my judgment the changes made in 2005 do not alter the status of practice directions. U v Liverpool City Council was cited with approval by Lord Wilson in Re NY (A Child) [2019] UKSC 49, [2020] AC 665 at [38]. He found that the practice direction in question in that case (FPR PD 12D para 1.1) went too far and was therefore wrong. In CS v ACS Sir James Munby P referred to section 81 of the 2003 Act but concluded at [36] that where there is a conflict between, on the one hand, the statute and the rule and, on the other hand, the practice direction, the latter is required to yield to the former. He found that the practice direction in question in that case (FPR PD 30A para 14.1) was wrong in law and had been made ultra vires the powers of its maker.

[61] So here. The language of para 13.5 of FPR PD 9A must yield to the limitations set by the law to the scope of the set aside grounds.  

In summary, a Practice Direction has no legislative force but provides guidance as to practice. On occasion the Family Procedure Rule Committee oversteps the mark and a higher court calls no ball, leading to the revision of the PD: as happened notably in Wyatt v Vince [2015] UKSC 14 in relation to PD 4A § 2.4 (striking out), Sharland v Sharland [2015] UKSC 60 on PD 30A § 14.1 (appeals) and which may now happen in CB v EB in relation to PD 9A § 13.5 and setting aside.

The Judicial Pyramid

Mostyn J’s review of the status of a Practice Direction calls to mind earlier guidance which reminded practitioners of things we all once knew but which may over the years have faded in the fog of battle.

The late Mrs Justice Baron heard Radmacher at first instance, except at that stage it was anonymised as NG v KR [2008] EWHC 1532. Some might say that Baron J’s decision in Radmacher (awarding £5.56m to H from W’s fortune of £100m) was a far fairer decision than that which was ultimately imposed by the Supreme Court. Others might say that the outcome in Radmacher would never happened in a million years if the genders of the parties had been reversed; I couldn’t possibly comment. In any event that is a matter for a different article. In NG v KR, Baron J gave the following pithy summary of the law, including reference to the judicial pyramid, at para 82:

“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 first 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 s 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.”  (My italics)

The difference between the decision (ratio) and guidance (obiter)

Finally, there is the difference between ratio and obiter which we all remember from law school but which in practice is often difficult to separate out. Here, we have the magisterial judgment of Moore-Bick LJ sitting in the Court of Appeal in K v K (Children: Permanent Removal from Jurisdiction) [2011] EWCA Civ 793:

86.  I accept, of course, that the decision in Payne v Payne [2001] Fam 473 is binding on this court, as it is on all courts apart from the Supreme Court, but it is binding in the true sense only for its ratio decidendi. Nonetheless, I would also accept that where this court gives guidance on the proper approach to take in resolving any particular kind of dispute, judges at all levels must pay heed to that guidance and depart from it only after careful deliberation and when it is clear that the particular circumstances of the case require them to do so in order to give effect to fundamental principles. I am conscious that any views I express on this subject will be seen as coming from one who has little familiarity with family law and practice. None the less, having considered Payne v Payne itself and the authorities in which it has been discussed, I cannot help thinking that the controversy which now surrounds it is the result of a failure to distinguish clearly between legal principle and guidance. In my view Wilson LJ was, with respect, quite right to warn against endorsing a parody of the decision. As I read it, the only principle of law enunciated in Payne v Payne is that the welfare of the child is paramount; all the rest is guidance. Such difficulty as has arisen is the result of treating that guidance as if it contained principles of law from which no departure is permitted. Guidance of the kind provided in Payne v Payne is, of course, very valuable both in ensuring that judges identify what are likely to be the most important factors to be taken into account and the weight that should generally be attached to them. It also plays a valuable role in promoting consistency in decision-making. However, the circumstances in which these difficult decisions have to be made vary infinitely and the judge in each case must be free to weigh up the individual factors and make whatever decision he or she considers to be in the best interests of the child. As Hedley J said in In re Y (Leave to Remove from Jurisdiction) [2004] 2 FLR 330 , the welfare of the child overbears all other considerations, however powerful and reasonable they may be. I do not think that the court in Payne v Payne intended to suggest otherwise. 

Conclusion

In summary, when citing the law, bear in mind the natural order of things, and separate out the decision from the guidance, bear in mind the judicial pyramid and keep practice directions in their proper place.

Alexander Chandler

29 December 2020

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