Once a court order is sealed, is a judge entitled to change his or her mind?

Once a case is determined and a court order in that case sealed, is a judge entitled to change his or her mind in a later case raising similar facts and the same legal principles? This question arises from an exchange between the Pink Tape blog (Lucy Reed KC, who also chairs the Transparency Project), Sir James Munby (a former President of the Family Division) and a series of judgments of Sir Nicholas Mostyn when he was still a Family Division judge (retired September 2023).

The context in which the question was raised was the anonymity of parties to proceedings. Despite their eminence, these lawyers confessed not to have an answer. This post seeks to provide three answers as a start (I am sure there are more). In summary these three answers are:

  • A judge should read carefully Re L (Children) (Preliminary Hearing: Power to Reverse) [2013] UKSC 8, [2013] 1 WLR 634, [2013] 2 FLR 859 in which the Supreme Court says that a judge can change his mind but only before an order is drawn and sealed.
  • The judge could – I would say must – recuse himself from dealing with a new case if his view of the law has changed. Mostyn J seems to have already made up his mind before most of the applications – in relation to anonymity of parties – were made.
  • The judge could make a decision and then give permission to appeal to the Court of Appeal.

And a judge must surely reflect on the extent to which the common law – ‘the books’ – is designed to permit individual judges to change their mind? There are other judges who can make a decision on the case. Or is a judge entitled, as it were, to set the law off in a different direction from which it was moving at the beginning of the day?

Anonymity and the Family Division

What follows is concerned only with the subject of anonymity for parties to family proceedings; and not to all family proceedings, but mostly in financial relief only. Most people – unless it is your name being bandied about by the courts administration and the press – would say it is very narrow issue. In law it is indeed narrow, and entirely dependent on the facts of the individual case (as will be shown); though it has attracted 316 paragraphs of judgments from Sir Nicholas; and Sir James’s article which I touch on below is around 18,000 words.

Of open justice as a whole in family proceedings Lord Sumption is quoted by The final report of the financial remedies sub-group of the Transparency Implementation Group (April 2023) (the TIG report) at para 12.122 as saying, in the Financial Remedies Journal, of family courts: “I would make [such courts] an exception to the principle that courts transact the public business of the state”.

Open justice is a much wider question than naming of parties. For example in Lupu v Rakoff  [2019] EWHC 2525 (QB);  [2020] EMLR 6 – anonymity for a group of pole-dancers – Nicklin J explained the variety comprised in the aspects of open justice:

“[25] The principle of open justice can be engaged in different ways: e.g. a decision by a court to sit in private, the imposition of reporting restriction orders, anonymisation of parties or witnesses and restrictions of access to documents on the court file by non-parties. In each of these areas, derogations from open justice must be justified by clear and cogent evidence and any restriction imposed must be the least restrictive form justified by the particular circumstances that justify the derogation.”

Open justice is not a free-for-all. It has quite different, albeit related, aspects as the common law recognises:

  • Open justice and when it applies (Scott v Scott [1913] UKHL 2, [1913] AC 417: that and release of documents is all that Scott dealt with);
  • Concerns over children and their rights in their parents’ proceedings (especially in a proposed financial remedy pilot scheme) (PJS v News Group Newspapers Ltd [2016] UKSC 26, [2016] AC 1081, [2016] 2 FLR 251);
  • The naming of parties, and where this may be avoided; and
  • Privacy and confidentiality in family proceedings, and what the law says about this and how it applies in family proceedings other than children cases (especially in financial proceedings: the ‘collateral undertaking’ per Civil Procedure Rules 1998 (CPR 1998) r 31.22).

It is important, therefore, to appreciate that the case of Scott v Scott (above) engages only the open justice aspect of this. As the ICLR headnote says: “The [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 in the interest of public decency.” The ratio decidendi of the case is limited to that.

In the context of anonymity this post looks at: why the fuss over a fact-specific issue (ie naming of the parties and involving little law). And then on this as with any other subject: what does a judge do when he (the judge in question here is male) wants to change his mind?

A judge and his damascene conversion

In his Some Sunlight Seeps in (Transparency Project, 2 May 2022) Sir James Munby, at about one-sixth of the way into his 18,000 post, and on the subject of Sir Nicholas Mostyn’s damascene conversion on anonymity, says:

“It has been suggested by the commentariat that Mostyn J violated the rule of stare decisis in changing his mind. This is not so. He was not bound by his previous view. High Court 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: Willers v Joyce & Anor (as executors of Albert Gubay deceased) (No 2) [2016] UKSC 44, [2016] 3 WLR 534 at [9]. Mostyn J clearly articulates powerful reasons for not adhering to his previous view, of which the foremost is that he now acknowledges it as fundamentally erroneous.”

In her blog post, Very much ancillary, Pink Tape comments:

“Since the chunkiest of the Mostyn 2 oeuvre [Xanthopoulos v Rakshina [2022] EWFC 30, [2023] 1 FLR 388 (12 April 2022)], has been published great minds have expounded their views on its correctness or not. Firstly, Sir James Munby, former President of the Family Division set out at length why Mostyn 2 was right, and why he too, just like Mostyn 1, had been in error in some respects in the past (see Some sunlight seeps in). He threw down a gauntlet asking for views on why he and Mostyn were wrong. The gauntlet was swiftly picked up by barrister, Christopher Wagstaffe, writing in the Financial Remedies Journal. ICLR have also published two of a promised three linked blog posts from David Burrows on the topic (Open justice and family proceedings: Part 1, anonymity, and Part 2, Stare Decisis).”

(The third post related to Drawing the threads together).

Pink Tape continues on the subject of Sir James’s views (I think he may treat me as one of the “commentariat”):

“Firstly, whilst some, including David Burrows (above), take the view that Xanthopolous breached the principle of stare decisis, Sir James Munby in his Sunlight post thought otherwise:

‘It has been suggested […] that Mostyn J violated the rule of stare decisis in changing his mind. This is not so. He was not bound by his previous view. High Court 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 […]. Mostyn J clearly articulates powerful reasons for not adhering to his previous view, of which the foremost is that he now acknowledges it as fundamentally erroneous’.” (my italics).

The italicised passage in the quoted extract from Sir James’s post is asserted without any citation of authority. I doubt it is the common law of English and Wales. Were an advocate to say that to me I would expect the advocate to give me at least one solid and higher court authority on the point.

A ‘desert island heresy’

Pink Tape then comes to the root of this post: what can a puisne judge do when he (or she, but here we are talking of two male former judges, so I have used the male gender when referring to the judge) – changes his mind?

“To parse what Munby is saying – what else is a judge who has realised he is wrong to do but correct himself? Therefore, criticism on grounds of stare decisis is misplaced and – I would suggest – not the biggest issue. Munby also denounces what he calls the ‘desert island heresy’, emphasising that [family justice] is not some special jurisdiction where the normal rules don’t apply.”

Of the second point: the “desert island heresy” is where this ICLR series of posts started in 2016. Its second post (nearly 8 years ago) was Family law no island (2): Release of family courts hearing documents). I do not wish to appear over-defensive. The three posts of mine above and my recent post (based in part on Mostyn J’s change of mind (September 2023): Judicial comity and the common law) all try to relate their subjects to the common law as a whole, with only occasional references to the family law desert island. This is a subject which self-evidently involves law outside the “desert island”, but which only engages the facts of the individual case and “administration of justice” (CPR 1998 r 39.2(4)) in relation to that case and anonymisation in relation to it.

The common law and damascene conversion of a puisne judge

In Willers v Joyce and another (No 2) [2016] UKSC 44, [2018] AC 843, para 9, Lord Neuberger in the Supreme Court said, as Sir James points out:

“[9] … where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Home Office [2012] EWCA Civ 741, [2013] 1 WLR 63 at [59].”

Patel gives case law sources for what Lord Neuberger says. He sat with eight justices all of whom were in agreement with his 22-paragraph judgment. Prior to the passages cited by Sir James, the Supreme Court had said:

“[4] 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. Cross and Harris in in their instructive Precedent in English Law, 4th ed (1991), at p 11, rightly refer to the “highly centralised nature of the hierarchy” of the courts of England and Wales, and the doctrine of precedent is a natural and necessary ingredient, or consequence, of that hierarchy.”

So far as authority is needed in what follows, it will be assumed that Cross and Harris is still authoritative on most modern questions of precedent (up dated where need be). As far as I can see neither of these authors have dealt with a judge changing his mind. Is such a concept – judicial changing of mind – something for which the common law was designed to cope? In Willers v Joyce (No 2), at [4], the Supreme Court (all of their lordships agreed) that “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.”

In Judicial comity and the common law (above) I tried to summarise Lord Bingham’s views on development of the common law (and see his paper on The Rule of Law (speech transcript) from which the Penguin book of the same title is derived. For example, he said in 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.”

Judges paid to make up their minds

Judges are paid to make up their mind; and, I think, to stick to their view of the law once they have asserted it. Most family lawyers will recall from Re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) [2008] UKHL 35; [2009] 1 AC 11, [2008] 2 FLR 141 the disdain with which Lord Hoffman and Lady Hale greeted the judge who could not make up his mind about a children case. To make up their mind is what judges are for, said Lady Hale.

So what does a judge do where he has had a change of mind? Three thoughts occur. I hope these suggestions go a little way to answering the concerns of the two judges mentioned above. As I explained in September 2023 in Judicial comity and the common law (above): for a judge to change his mind was not contemplated by the common law. Mostyn J gave his main reason for disavowal in Gallagher v Gallagher [2022] EWFC 52, [2022] 1 WLR 4370 at [34]:

“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 [1913] UKHL 2; [1913] 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.”

In all this it must be born in mind that the open justice principle is not a free-for-all. The issue eg in Gallagher was only anonymity.

The sole issue in Scott

In Scott v Scott [1913] AC 417 the issue was, as the ICLR head note writer says (noted above): whether a court should sit in private or not. By all means, Mostyn J is bound by Scott; but that case has nothing directly to do with anonymity. In Scott the House of Lords said nothing binding on the subject of anonymity. In a recent Supreme Court case on anonymity Khuja v Times Newspapers Ltd [2017] UKSC 49; [2017] 3 WLR 351 Lord Sumption’s three references to Scott were nothing to do with anonymity. In Lupu v Rakoff (above) Nicklin J mentions Scott only in relation to “administration of justice”.

So what is a judge who changes his mind (say, ‘Andrews J’) to do? My respectful suggestions include:

  • To read carefully Re L and anor (Children) (Preliminary Hearing: Power to Reverse) [2013] UKSC 8, [2013] 1 WLR 634, [2013] 2 FLR 859 in which the Supreme Court says that a judge can change his mind (in this case it was a woman care judge) up till a court order is sealed; but when reviewing his conversion Andrew J should spare a thought for the litigants in his and later cases. He should in particular reflect on any expectations of privacy they might have had when they issued their proceedings (Campbell v MGN Ltd [2004] UKHL 22, [2004] 2 AC 457, not a case considered by the lawyers above, I think). Earl Spencer, for whom a disgruntled Mostyn J acted as Mostyn QC and who had Munby J as judge, may come into the Campbell equation as well: Spencer v Spencer [2009] EWHC 1529 (Fam), [2009] 2 FLR 1416).
  • Andrews J could – I would say must – recuse himself from dealing with the case if his view of the law had changed, ie not to try radically to recast the law in another judgment. Mostyn J had made up his mind before most of the later applications were made (ie he was biassed). Alternatively, Andrews J could ensure that a case is listed before another judge (as eg did Mostyn J (where he changed his mind on top-up maintenance: James v Seymour [2023] EWHC 844 (Fam), [2023] 4 WLR 53 (19 April 2023) by the court administration listing the case before another judge: Galbraith-Marten v de Renée [2023] EWFC 253 (20 December 2023), Cobb J).
  • Andrews J could make a decision and then give permission to appeal which Mostyn J has done recently in a case where he disagreed with an earlier Court of Appeal decision.

Common law only to be changed by statute, or the Supreme Court

For the three bases above, (2) could seamlessly metamorphose into (3). What is surely the case is that the common law – ‘the books’ – cannot be expected to deal with judges who change their mind. If the common law is to change it must be within the terms of judicial comity; Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA (ie stare decisis); the House of Lords Practice Statement on Judicial Precedent (26 Jul 1966) [1966] 1 WLR 1234; or by fresh statutory provision.

 

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