Introduction

This is the first of a planned series of four linked posts discussing rules of precedent and to what extent the Supreme Court and Court of Appeal are bound by their own previous decisions (this Part and Part 3). Matched with that, can a Supreme Court decision be said to be per incuriam (a decision made without regard to existing law: to be explained later in relation to the Gohil case (below) and considered more fully in Part 2 ). Finally, to what extent can and should any court or tribunal take account of children’s views in relation to any decisions it is being asked to make; and how should a court communicate its decision to the children the subject of the proceedings.

Proposed posts in this series are:

  1. Rules of precedent and departing from a Supreme Court and Court of Appeal judgment: the subject of this post.
  2. A review of the Supreme Court judgement on participation of children in the procedure of any decision makers (including courts and tribunals) in eg CAO v Secretary of State for the Home Department [2024] UKSC (NI) 32, [2024] 3 WLR 847 (23 October 2024)and  whether CAO  was, in fact, “a judgement given in ignorance of the terms of a statute or a rule having the force of a statute” (per the Bristol Aerospace case (see later) such as its apparent failure to take account of the generality – common law, statute and convention law – of children law?
  3. Citation of authorities generally and specifically in family proceedings: President’s guidance and the 2001 LCJ Practice Direction (Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 (9 April 2001).
  4. Listening to children: which courts or tribunals (and see CAO (above); and judges writing to children about their case and whether this has any wider application for openness of justice.

Rules of precedent at common law

To what extent is the Supreme Court bound by its own previous decisions; and when may it depart from or revisit its previous decisions? To what extent can other courts, especially the Court of Appeal, diverge from another of its decisions?

In Willers v Joyce  (No 2) [2016] UKSC 44, [2018] AC 843 [2016] 3 WLR 534 (20 July 2016) – Lord Neuberger (with whom Lady Hale, Lords Mance, Kerr, Clarke, Wilson, Sumption, Reed and Toulson – a nine-justice court – all agreed) considered rules of precedent in common law:

“[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), 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….”

This post looks first at the extent to which the Supreme Court is permitted by its own procedural practice to alter its earlier decisions:

  1. Departure from a previous decision where “it appears right to do so” (per: Practice Statement (Judicial Precedent) (set out below)).
  2. To correct an earlier error in the Court’s approach to procedure: Potanina v Potanin [2024] UKSC 3, [2024] AC 1063, [2024] 2 WLR 540, [2024] 1 FLR 1040 (31 January 2024); Re Pinochet (No 2)(R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2))[2000] 1 AC 119.
  3. And can there be a third category: to set aside an earlier decision where the court has not had relevant law referred to it (see eg CAO above) (the per incuriam exception to be considered in Part 2).

Departure from decided Supreme Court decisions

Until July 1966 the rule was that the then House of Lords (predecessor to the present Supreme Court) was not permitted to diverge from its earlier decisions. Only Parliament could recast the law. Under the hand of the then Lord Chancellor Lord Gardiner the House of Lords altered this rule by Practice Statement (Judicial Precedent) [1966] 1 WLR 1234:

“Their Lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules.

Their Lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so….

This announcement is not intended to affect the use of precedent elsewhere than in this House.”

In Willers v Joyce (above) the Supreme Court considered the extent to which Privy Council (PC) decisions should be followed: given the identity of the judges who sat in the PC (ie members also of the Supreme Court) and that they applied the common law, the PC was to regard itself as bound by any decision of the House of Lords or the Supreme Court when applying the law of England and Wales. Unless there was a decision of a superior court to contrary effect in England and Wales, a court there could normally be expected, but was not bound as a matter of precedent, to follow a PC decision.

In a short judgment Lord Neuberger provided the above summary of the common law doctrine of precedent. The Practice Statement had been most recently in Knauer v Ministry of Justice [2016] UKSC 9, [2016] AC 908, [2016] 2 WLR 672 see [21]-[24]; and this seems to be the last time the Supreme Court considered the statement. In Knauer Lord Neuberger and Lady Hale emphasised that, because of the importance of the role of precedent and the need for certainty and consistency in the law, the Supreme Court “should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement”. In Knauer (a case about quantification of Fatal Accident Acts damages) the Supreme Court did find an exception.

Davis v Johnson and the importance of stare decisis

In Davis v Johnson [1979] AC 264 (9 March 1978) Lords Diplock and Scarman differed over the legal principle in the case, but both were of one mind when it came to the very limited extent to which the Court of Appeal could diverge from its own earlier decisions. The issue which divided Lord Diplock and Lord Scarman and the remaining lords related to the then new “domestic violence” legislation, Domestic Violence and Matrimonial Proceedings Act 1976 s 1: did section 1 provide only “narrower” remedies to prevent threatened invasions of existing legal rights in property; or did it in addition – the “broader” meaning – provide new legal rights such as to exclude a party from property to which he was entitled.

In Willers v Joyce Lord Neuberger summarised the extent to which the Court of Appeal is required to be bound (stare decisis: ie keep to what has been decided previously) by its earlier decisions:

“[8] The Court of Appeal is bound by its own previous decisions, subject to limited exceptions. The principles were set out by the Court of Appeal in a well-known passage (which was approved by the House of Lords in Davis v Johnson [(above)] in Young v Bristol Aeroplane Co Ltd [1944] KB 718, 729–730: ‘[The Court of Appeal] is bound to follow previous decisions of its own as well as those of courts of co-ordinate jurisdiction. The only exceptions to this rule … are … (1) The court is entitled and bound to decide which of two conflicting decisions of its own it will follow. (2) The court is bound to refuse to follow a decision of its own which, though not expressly overruled, cannot, in its opinion, stand with a decision of the House of Lords. (3) The court is not bound to follow a decision of its own if it is satisfied that the decision was given per incuriam’.” [The term per incuriam is explained below].

Lord Diplock found himself “compelled to part company with the rest of your Lordships and to align myself with the seven Lords Justices who have expressed their preference for the narrower meaning” in the appeals before the House. That said, Lord Diplock continued:

“This cannot affect the disposition of the instant appeal nor will it affect the application of the Act in subsequent cases; for the section means what a majority of this House declares it means. But it does make the score of appellate opinions in favour of the broader and the narrower meanings eight all.”

Stare decisis: the per incuriam exception and the modern law

Lord Diplock concluded his opinion so far as it dealt with the Court of Appeal being bound by its earlier decisions as follows: “In my opinion, this House should take this occasion to re-affirm expressly, unequivocally and unanimously that the rule laid down in the [Bristol Aeroplane case] as to stare decisis is still binding on the Court of Appeal.”

A recent application of the stare decisis decision is provided Crown Prosecution Service v Gohil (also Gohil v Gohil) [2012] EWCA Civ 1550, [2013] Fam 276, [2013] 2 WLR 1123, [2013] 1 FLR 1095 (26 November 2012), Lord Dyson MR (giving the judgment of the court (with Hallett and McFarlane LJJ)) stated:

“[30] There is a general rule that a court is bound by previous decisions of other courts of co-ordinate jurisdiction. To this general rule there are limited exceptions. The application of the rule to decisions of the Court of Appeal was the subject of close examination in the leading case of Young v Bristol Aeroplane Co Ltd [1944] KB 718. The judgment of the court, which was delivered by Lord Greene MR, emphasised the limited scope of the per incuriam exception to the general rule. This has been repeated in subsequent cases: see, for example, per Lord Diplock in Davis v Johnson [(above)] at 326 where he cited what Tiverton Estates v Wearwell [1975] Ch 146, per Scarman LJ at 172–173:

“If, therefore, throwing aside the restraints of [Bristol Aeroplane] one division of the [Court of Appeal] should refuse to follow another because it believed the other’s decision to be wrong, there would be a risk of confusion and doubt arising where there should be consistency and certainty. The appropriate forum for the correction of the Court of Appeal’s errors is the House of Lords, where the decision will at least have the merit of being final and binding …”

By the time of this citation Lord Scarman was sitting alongside Lord Diplock in the House of Lords. In Gohil the Court of Appeal went on to define the per incuriam exception to the stare decisis rule:

“[31] What is the scope of the per incuriam exception? In Young v Bristol Aeroplane Co Ltd [1944] KB 718, 729 the court gave some guidance about this: ‘Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different….”’

The court explained why it could not follow its own earlier decision and the appeal of the Crown Prosecution Service as to disclosure of certain documents to Mrs Gohil was allowed where the judge below was held not to have had relevant statutory provision put before him.

Procedure: set aside and bias

But does any stare decisis and Practice Statement rule apply to procedure in the Supreme Court? Two cases can be used to illustrate this where the House of Lords/Supreme Court has had no hesitation in setting aside or otherwise altering their earlier procedural judgment.

In Re Pinochet (No 2) [2000] 1 AC 119 Amnesty International (AI), which had campaigned against Senator Pinochet in his capacity as a former president of Chile, obtained leave to intervene in the appeal to the Lords, where Senator Pinochet was making application to set aside warrants of his extradition. The magistrates’ appeal had been allowed by the Lords by a majority. The original warrant was restored pending a decision by the Home Secretary. Lord Hoffman was one of the majority. Later he was found to be a member a charity (AIC) which was wholly controlled by AI. He carried on that part of AIC’s work which was charitable. Lord Hoffman did not declare his involvement in AIC.

Lord Browne-Wilkinson recorded that the respondent’s to the appeal to the House of Lords “do not dispute that your Lordships have jurisdiction in appropriate cases to rescind or vary an earlier order of this House.” His lordship held that “that concession was rightly made both in principle and on authority.” He went on at 132:

“In principle it must be that your Lordships, as the ultimate court of appeal, have power to correct any injustice caused by an earlier order of this House. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered…. However, it should be made clear that the House will not reopen any appeal save in circumstances where, through no fault of a party, he or she has been subjected to an unfair procedure. Where an order has been made by the House in a particular case there can be no question of that decision being varied or rescinded by a later order made in the same case just because it is thought that the first order is wrong.”

Lord Browne-Wilkinson (with which Lord Goff agreed: at 137) summarised Senator Pinochet’s application (at 132):

“Senator Pinochet does not allege that Lord Hoffmann was in fact biased. The contention is that there was a real danger or reasonable apprehension or suspicion that Lord Hoffmann might have been biased, that is to say, it is alleged that there is an appearance of bias not actual bias.”

Permission to seek financial relief after an overseas divorce

The Matrimonial and Family Proceedings Act 1984 (MFPA 1984) Part 3 was introduced into family proceedings to enable a claimant spouse or civil partner to apply to the court for permission to apply for financial relief following an overseas family breakdown (MFPA 1984 s 13(1)). Much is left by the 1984 Act to rules of court. Just over a year ago the procedure set up under the Act came up for review by the Supreme Court in Potanina v Potanin [2024] UKSC 3, [2024] AC 1063, [2024] 2 WLR 540, [2024] 1 FLR 1040 (31 January 2024). The simple issues was had the Supreme Court itself followed basic rules which Parliament has delegated to rule makers.

The framework for an application under Part 3 is under Family Proceedings Rules 2010 (FPR 2010) Part 8 Ch 6, and, says FPR 2010 r 8.24, the permission (‘leave’) application proceeds by the FPR 2010 Part 18 (Procedure for other applications in proceedings: equivalent to the Civil Procedure Rules 1998 (CPR 1998) Part 23 procedure).

In Potanina on an application for a Part 3 permission application by Mrs Potanina (A), the Supreme Court said that the test which the courts had adopted here, as had been the case in similar applications, was unfair to her husband (R). The family courts had previously said that if A was given permission to proceed, without notice to R, then to have that permission set aside a R must show a reviewing court – by a “knockout blow”: see Lord Collins at [33] in Agbaje v Agbaje [2010] UKSC 13 [2010] 1 AC 628, [2010] 2 WLR 709, [2010] 1 FLR 1813 (10 March 2010) – that the judge who gave permission was wrong.

A ‘dystopian’ state of procedural affairs

Lord Leggatt, for the majority (with Lady Rose and Lord Jones over the dissent of Lords Briggs and Stephens), described the present procedural state of affairs in family courts under MFPA 1984 Part 3 as unlawful and represented a ‘dystopian’ state of procedural affairs. It is contrary to the applicable rules of court (FPR 2010 rr 18.10 and 18.11) and to fundamental principles of procedural justice (see [64] to [68] and [85]).

So dystopian was the practice of the family courts and so fundamental their failure to take account of basic legal principle that Lord Leggatt had started his judgment in Potanina as:

“[1] Rule one for any judge dealing with a case is that, before you make an order requested by one party, you must give the other party a chance to object. Sometimes a decision needs to be made before it is practicable to do this. Then you must do the next best thing, which is – if you make the order sought – to give the other party an opportunity to argue that the order should be set aside or varied. What is always unfair is to make a final order, only capable of correction on appeal, after hearing only from the party who wants you to make the order without allowing the other party to say why the order should not be made.”

With those words, and without reference by him or by any of the other justices to the Practice Statement, he jettisoned – with full explanation – fifteen years of family court practice. He continued: if a court makes an order granting permission (‘leave’) under s 13 after hearing from A alone and without notice to the other party R, in law R has an absolute unfettered right – or should have had such a right – to apply to have the order set aside. The onus remains on A to show a ‘substantial ground’ for securing permission making the application for a financial remedy in England and Wales.

Lord Leggatt reviews the history of FPR 2010 r 8.25, which sets out the brief procedural basis for a Part 3 application. He explains how it fits with the simple procedure set out in FPR 2010 rr 18.10 and 18.11. He comments:

“[68] The end result of this history is that there is a mismatch between, on the one hand, the fundamental principle of procedural fairness reflected in FPR 2010 r 18.11 which entitles a respondent to apply to set aside an order made without notice and, on the other hand, the practice presently adopted in dealing with section 13 applications….”

FPR 2010 rr 18.10 and 18.11 (and cf CPR 1998 rr 23.9 to 23.10) takes over from here. Rule 8.24 says application is by the Part 18 procedure. The importance of rr 18.10 and 18.11 was emphasised by Lord Leggatt; and that judges should concentrate on what these rules actually say. Rules as to set aside of are “clear and unambiguous” and judges should apply them:

“[84] No question of procedure is raised which it is suitable to leave for consideration by the Rules Committee. … In their current form the rules of court governing the setting aside of leave granted without notice are clear and unambiguous. No amendment to the rules is needed. What is required is [for judges] to apply the rules as they stand and not to disregard them.”

Finally, where a mistake of law has developed – namely an error which is “contrary to the applicable rules of court and to a fundamental principle of procedural justice” – then it is for the Supreme Court to “intervene to end a practice that conspicuously fails to” apply rules and ignores fundamental principles of practice (see [85]). At [22] Lord Leggatt sets out the simple passages in Part 18 to which he refers. Rule r 18.10(3) says “The order [made without notice under r 18.9] must contain a statement of the right to make an application to set aside or vary the order under rule 18.11.”  Rule 18.11 provides:

(1) A person who was not served with a copy of the application notice before an order was made under rule 18.10 may apply to have the order set aside or varied.

(2) An application under this rule must be made within 7 days beginning with the date on which the order was served on the person making the application.

Featured image: law reports, via Shutterstock.