What was in issue in the case

In the first of this short series of posts I suggested a third – this one – could take on “what of the Privy Council’s view in Finzi (below) of what Lord Sumption says in Takhar”. This raises the question of what is the judge’s reasoning (ratio decidendi) for determination of any issue in a case? This in its turn raises the question of on what order does the appellant – or respondent in the case of a cross-appeal – base that appellant’s grounds of appeal. A review of recent cases in the Privy Council and Court of Appeal considers these questions.

The emphasis of what the Privy Council said was the importance (as in Henderson v Henderson (1843) 3 Hare 100, 115 per Wigram V-C) that a party must “bring forward their whole case…” The Vice Chancellor continued:

“[The court] will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case.”

Lord Sumption in Takhar v Gracefield Developments Ltd [2019] UKSC 13; [2020] AC 450 had said, obiter:

“[66] I would leave open the question whether the position as I have summarised it is any different where the fraud was raised in the earlier proceedings but unsuccessfully. My provisional view is that the position is the same, for the same reasons. If decisive new evidence is deployed to establish the fraud, an action to set aside the judgment will lie irrespective of whether it could reasonably have been deployed on the earlier occasion unless a deliberate decision was then taken not to investigate or rely on the material.

‘Tenets of common law’

In Finzi v Jamaican Redevelopment Foundation [2023] UKPC 29; [2024] 1 WLR 541 (27 July 2023) the Privy Council disallowed an appeal by a person who had failed to bring forward alleged evidence of fraud which was available to him at the original hearing of the order he now sought to have set aside (as explained in Pleading, precedent and procedure, 2 January 2024). The Privy Council  emphasised the importance of being clear always what is the reasoning (ratio) for a decision. It is that which creates the precedent value of a case (and, it might be added, any appellant party’s basis for grounds of appeal):

“[60] It is important not to lose sight of the basic tenets of common law reasoning that every judgment must be read in context, by reference to what was in issue in the case, and that it is only the ratio of the decision which establishes a precedent and not obiter dicta. …”

And so it was that in my batch of ICLR cases for 7 February 2024 the first was Braceurself Ltd v NHS England (No 2) [2024] EWCA Civ 39, [2024] WLR(D) 45 (30 January 2024). The first outing for this case – Braceurself Ltd v NHS England [2023] EWCA Civ 837, [2024] 1 WLR 669 (14 July 2023) – had been published with a full law report a few days before. I read the first of these, and glanced at No 2. The first case raised, in particular, the question of whether liability in a procurement case was sufficiently serious to warrant an award of Francovich damages (after Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) [1995] ICR 722, ECJ). I had not heard of Francovich damages before. Did that matter? I read the first case, a judgment of the court – consisting of Coulson, Simler and Whipple LJJ – and its explanation of what are Francovich damages.

The important general point is that Braceurself (sorry, I can not avoid the pun) deals with split trials, and the position of a party who wishes to appeal against a decision at the first stage of the trials; or who disagrees with a finding made by the court, though not the result. Further it deals with the point stressed by the Privy Council at [60] in Finzi (above): that it is the ratio of a decision which establishes the precedent, and which any appellate court must have firmly in mind on an appeal.

What struck me is that two family cases were cited as precedents in this otherwise very specialised field: first, on the subject of splitting issues for trial: In re B (Split Hearing: Jurisdiction), [2000] 1 WLR 790, [2000] 1 FLR 334, CA; and, secondly, on how a court is to deal with the party to proceedings who wishes to file a respondent’s notice where their cross-appeal point has, on the facts, been found against them: Lake v Lake [1955] P 336, [1955] 3 WLR 145, CA.

Francovich damages and a split trial

The judgment in Braceurself No 1 explained the term, Francovich damages, in the case where Fraser J at a case management hearing had ordered a split trial on liability and quantum:

“[4] … He expressly indicated that the issue of liability, to be heard at the first trial, would include the issue as to whether any manifest breach was ‘sufficiently serious’ to warrant an award of damages. The importance of that latter issue in English law derives from the [application of] Francovich v Italian Republic (Joined Cases C-6/90 and C-9/90) [1995] ICR 722, ECJ.”

In Braceurself (No 2) (above) Coulson LJ further explained the concept of “sufficiently serious” damages:

“[1] In a public procurement claim, where an unsuccessful bidder claims damages against the contracting authority, the claimant must prove, not only a breach of the Public Contract Regulations 2015, but also that the breach is ‘sufficiently serious’ to warrant an award of damages (sometimes called Francovich damages). Although this is a concept originating in European Law, it remains unamended by the new Procurement Act 2023; [though it] is not a test that fits very easily either into the English common law generally … or the world of public procurement challenges in particular.”

This is a niche area of law, but Braceyourself (No 1) has wider aspects of importance to practice. First, it is a reminder that an appeal lies against a determination by the court or an order, not against a finding of fact or detail of reasoning along the way to any such order. In Lake v Lake (above) Mrs Lake successfully defended her husband’s divorce petition but wanted to appeal against a finding that she had committed adultery. The Court of Appeal held that there was nothing in the divorce court’s order against which an appeal could lie. Even if Mrs Lake succeeded in disproving the allegation of adultery, that would not lead to an amendment of the court’s order, which had upheld the wife’s defence of her husband’s divorce petition.

Appeal against order or other determination

Secondly, a formal order to record the court’s determination is not always required to found an appeal: what matters is whether the court’s findings would or could have a significant effect on the subsequent rights and obligations of the parties. In Re B (above) in care proceedings the court had heard the fact-finding part of a split hearing: facts and later a welfare disposal. At that first stage the judge made findings of non-accidental injury. Although there was no formal order, those findings were clearly significant to the second part of the proceedings, which were concerned with the appropriate orders that needed to be made in consequence. The question for the Court of Appeal then was whether the parents were entitled to appeal against the findings of accidental injury when they were made; or did they have wait until after the second hearing?

Dame Elizabeth Butler-Sloss P at [2000] 1 WLR 790, 793 said that to make the parents wait would be “to fly in the face of common sense”. She was satisfied that the way the case had been presented to the judge “was by way of hearing of a preliminary issue”. She went on to conclude that the appeal court did have jurisdiction to entertain an appeal on that issue, or issues. The matters determined by the judge at this first phase were “a preliminary part of the case, [and] which are crucial to the final determination, [these] can be treated, if appropriate, as a determination”. The Court of Appeal could hear an appeal on that determination without waiting for the second part of the hearing.

And thirdly, in an area where, said the Court of Appeal, there was “a paucity of authority”: when did a respondent need permission to appeal in the light of the content of their respondent’s notice; or a claimant/respondent to revive on a defendant/respondent’s appeal issues they had lost on below. The answer, says Braceyeurself (at [49] to [55]), is not straightforward. Parties seeking a hearing in the Court of Appeal on issues they wish to raise must be clear whether their pleadings raise issues already decided; and if so that they may need permission from the Court of Appeal.

Family cases as wide authority for propositions of law

Finally, it occurred to me to think back 100 years (well, 110 years so I can include Scott) and to try to list five cases, generally treated as “family”, and routinely treated as particularly authoritative by all civil proceedings courts:

  • Scott & Anor v Scott [1913] UKHL 2, [1913] AC 417 – authority for no more than, as the ICLR head-note 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; though other family proceedings may now be added to this as for hearing in private.
  • Re F (orse A) (a Minor) (Publication of Information) [1977] Fam 58, [1976] 3 WLR 813, CA – clarification of the meaning of Administration of Justice Act 1960 s 12(4) and the intent to commit a contempt.
  • Davis v Johnson [1978] UKHL 1, [1979] AC 264 – confirmation of the meaning of the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 [House of Lords] (ie mostly that the Court of Appeal must follow its own decisions) in the context of the newly passed Domestic Violence and Matrimonial Proceedings Act 1976.
  • Gillick v West Norfolk and Wisbech AHA [1985] UKHL 7, [1986] 1 AC 112, [1986] 1 FLR 224 – and the concept of the Gillick-competent child: “parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision…” said Lord Scarman.
  • Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432, [2007] 1 FLR 1858 – towards a definition of how courts should quantify the shares in a constructive trust.

Lord Scarman was already a High Court judge when the Family Division was created in 1970. Few will be surprised to know that he was a judge with the majority in three of these decisions.

A postscript

In the second post in this series, Power to stay civil proceedings for alternative dispute resolution (5 January 2024) I did not, perhaps, make it as clear as I might have done that a civil court – family proceedings and civil proceedings generally – has power not only to stay proceedings for parties to attempt mediation, but also to order attendance at mediation. This was asserted by Sir Geoffrey Vos MR in Churchill v Merthyr Tydfil County BC [2023] EWCA Civ 1416, [2023] WLR(D) 498 (29 November 2023): “[58] … I would conclude that, as a matter of law, the court can lawfully stay existing proceedings for, or order, the parties to engage in a non-court-based dispute resolution process” (emphasis added).

The fallout from Churchill v Merthyr Tydfil continues to scatter. The UK’s own ministry of justice (as reported in The Law Society Gazette of 29 January 2024 ) seems not to have read – or at least not to have understood – the judgment. The LSG reports the ministry as saying ‘plans to force separating couples into mediation to keep family disputes away from court have been shelved’. The ministry’s position is confirmed by The Law Society Gazette of 2 February 2024 through a family lawyer, Geoffrey Coy. Like the Lord Chancellor he looks at the issue only as a family lawyer. He makes no reference to Churchill which I could see. (The Law Society intervened in Churchill and are shown as a party to the hearing in the Court of Appeal.)

And Prof Dominic Regan (see New Law Journal, The Insider: 15 December 2023)? He defines the outcome of Churchill as “That old tosh about judges being powerless to order ADR [is] sent to recycling!”

Featured image: UK Supreme Court library (Shutterstock)