This is a guest post from Alexander Chandler KC. The post originally appeared on Alex’s Family Brief blog here and is republished here with thanks to Alex. Alex tweets as @familybrief.
Examples, Authorities and the Panopticon
Cast your mind back to the first time you sat in court and heard a judgment handed down, before you became familiar with its content, structure and duration.
I recall sitting as a pupil in the back of an overheated district judge’s chambers in Kent. The final hearing had largely passed me by. I hadn’t really followed either counsel’s submissions and in the soporific atmosphere I alternated between drifting off and waking up with an unpleasant jolt. (I blame the radiators.)
At the end of the hearing, the court’s judgment was thoughtful, balanced and thorough. But to a novice like me, and I suspect also to the lay clients, it was a strange and alienating experience. What was the point of the judge narrating the parties’ marriage? Why was he reading back to them extracts of their own oral evidence? Above all why was it taking so long, with the important bit – the decision – left, like a Victorian crime novel, until the very end?
I’m not sure what I was expecting. Possibly something closer in form and length to sentencing remarks after a criminal trial. I’ve subsequently come to understand that a judgment needs to tell the story, identify the issues, analyse the evidence, and explain findings of fact, all of which should be done before turning to the outcome. I’ve come to respect the art of pulling together the threads in a case, of making factual findings where, as often is the case, it is finely balanced. I’ve also learned, like many advocates, that while the outcome is only stated at the end, judgments tend to contain early warning signals (or ‘tells’): lavish praise of an advocate (‘Mr Chandler has made his points persuasively and tenaciously’) generally does not herald good news.
But what is the point of a court judgment, and to whom is it actually directed?
CONVENTIONAL REASONS FOR A JUDGMENT
Traditionally, there have been three main reasons for the court to deliver a judgment: the first two concern the parties and arguably (depending on your views about transparency) are private to them; the third, when it arises, involves a public interest in the judgment being published.
First, a judgment explains the court’s reasoning to the parties; rather like how you’d get one mark for getting a maths question right at school and four for showing your workings. In Flannery v Halifax Estate Agencies Ltd [1999] EWCA Civ 811, Henry LJ described the court’s duty to give reasons as a ‘function of due process, and therefore of justice’:
“…Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave [1994] 1 All ER 315) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.”
Sir Robert Megarry, formerly Vice-Chancellor of the Chancery Division, put it best when he wrote that:
“…the most important person in the court room… is the litigant who is going to lose… [every court should consider whether] …when the end comes, will he go away feeling that he has had a fair run and a full hearing”[1].
Conversely, successful parties aren’t normally as interested in knowing the reasons why they have won. They may feel that they were always in the right, whereby the court has vindicated their position. This is particularly frustrating for the lawyers who have toiled long and hard on a difficult case, where a lay client feels ‘it was already in the bag’.
Second, in the event of an appeal (always a perilous enterprise in financial remedies), the grounds are usually focused upon what was said or written in the judgment, with the following well-known caveats borne in mind:
“…The exigencies of daily court room life are such that reasons for judgment will always be capable of having been better expressed. This is particularly true of an unreserved judgment such as the judge gave in this case … These reasons should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions, and which matters he should take into account… This is particularly true when the matters in question are so well known as those specified in section 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their own discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.” Piglowska v Pigloswki [1999] UKHL 27, per Lord Hoffman;
“…the judgment… has to be read as a whole and having regard to its context and structure. The task facing a judge is not to pass an examination, or to prepare a detailed legal or factual analysis of all the evidence and submissions he has heard. Essentially, the judicial task is twofold: to enable the parties to understand why they have won or lost; and to provide sufficient detail and analysis to enable an appellate court to decide whether or not the judgment is sustainable. The judge need not slavishly restate either the facts, the arguments or the law. To adopt the striking metaphor of Mostyn J in SP v EB and KP [2014] EWHC 3964 (Fam), para 29, there is no need for the judge to “incant mechanically” passages from the authorities, the evidence or the submissions, as if he were “a pilot going through the pre-flight checklist.” Re F (Children) [2016] EWCA Civ 546, per Munby P at [22]
Third, where the judgment has been handed down by the higher courts and either resolves a contentious legal argument or contains important guidance that can be cited in the lower courts, it will be in the public interest for the judgment to be reported. That after all is how the common law develops.
Law reporting used to be a slow and stately business: there was often a delay between a judgment being handed down and reported, sometime measured in years (to take a recent example, Munby J’s judgment in L v L [2006] EWHC 956 (Fam) is dated 2 May 2006 but was reported at [2008] 1 FLR 26). Then there was then the problem of access: it is increasingly hard to remember a time, before BAILII and the National Archives, where legal research involved trips to the law library, leafing through dusty volumes of old reports and endless and expensive photocopying.
Substantial growth in the publication of judgments
At the turn of this century a quiet legal revolution took place resulting in a massive increase in available judgments online. BAILII started operating in 2000 and following the Practice Direction of 11 January 2001 non-proprietary neutral citations were introduced. It is now infinitely easier to search case law, even without the assistance of expensive services such as Westlaw.
The “substantial growth in the number of readily available reports of judgments” around the turn of the century led to Sir Harry Woolf’s PD on Citation of Authority (9 April 2001). This remains essential reading. It applies to all courts apart from the criminal courts (cl. 5) and states which judgments can and cannot be cited in court. Clause 6 provides that the following “…may not in future be cited unless it clearly… purports to establish a new principle or to extent the present law… that indication must take the form of an express statement [by the judge] 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 unless … (b) cited… 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”.
While the Practice Direction has not been updated to take into account the nomenclature of the family court, its effect is that family court judgments below High Court level (i.e. circuit judge[2], district judge, recorder or deputy district judge) cannot be cited unless the judgment expressly purports to extend the law or it provides authority where there is no superior (High Court or above) judgement on point. To illustrate that point, Wright v Wright [2015] EWCA Civ 201, a favourite case of the Daily Mail, because it “ended the meal ticket for life”, is not a citeable authority because it is an application for permission to appeal (leaving aside the question of whether the judgment in fact said anything controversial). Conversely, some judgments from the circuit bench, e.g. His Honour Judge Hess’s judgments in P v Q [2022] EWFC B9 and YC v ZC [2022] EWFC 137 are, in the writer’s view, eminently citeable, either because they develop the current law (in relation to soft loans and adding back costs), or they deal with issues upon which there is no superior authority.
A NEW, FOURTH REASON: TRANSPARENCY
In addition to the above three reasons (i.e. explaining the court’s reasons to the parties, enabling the appeal court’s review, establishing precedent) a fourth has more recently emerged: that judges in the family court, at any level, are encouraged to publish online judgments as part of the drive towards greater transparency in the family court. Plainly, the publication of a judgment does not of itself achieve full transparency, just as reading a film review or a sports report isn’t the same as attending the film or event. It is one of a range of initiatives taken to cast some light into family court (also see: press access, bloggers etc).
The encouragement to publish was contained in Sir James Munby’s practice guidance of 16 January 2014, and advanced in Sir Andrew McFarlane’s paper, ‘Confidence and Confidentiality’ (28 October 2021), where the President suggested, albeit in the context of public law proceedings, that judges sitting at all levels in the family court should be encouraged to publish 10% of their judgments. In its final report dated April 2023, the Farquhar Committee endorsed this view for the Financial Remedies Courts, whereby members of the district and circuit bench should publish more judgments, which (per Farquhar III) “…should occur whenever there is a written judgment available… would provide a greater understanding of how such cases are resolved in the Financial Remedies Court”
Following this encouragement, many family court judges (myself included) have, after careful anonymisation, put judgments online.
There are undoubtedly benefits to this:
- The scope of published financial remedy judgments has widened. Whereas traditionally, reported financial remedy cases tended to involve large fortunes, trusts and international issues, there is a growing number of cases which concern more normal issues and deal with small and medium asset cases, including knotty issues such as state benefits; and
- In terms of encouraging transparency: the publication of judgments serves to demystify the workings of the family court in that anybody could now access several dozen recent financial remedy judgments.
But this represents a significant change in terms of why a court judgment has been disseminated. Traditionally, editors of the Official Reports (or All England Law Reports, Family Law Reports etc.) would decide which judgments to publish. In practice this meant decisions of the House of Lords/ Supreme Court, Court of Appeal and the High Court. On occasion specialist reporters such as the FLR would publish interesting judgments from influential circuit judges and possibly even recorders. The purpose of law reporting was professional, to ensure that important and precedent-setting cases were disseminated within the legal professions. In addition to the reported decisions there would be unreported decisions although these were often inaccessible.
What has emerged is a situation where individual family court judges, having heard submissions from the parties, obtain a neutral citation reference so that judgments are instantly posted, without the professional filter of law reporters deciding whether or not the case is significant or precedent-setting. Several of the resulting judgments that now appear online contain well-balanced and thoughtful summaries of the law and are almost indistinguishable from judgments from High Court judges. (Some may have been written by judges who are on their way to the High Court bench). But unless these judgments come within one or other of the exceptions set out in the PD of 9 April 2011 (referred to above), they cannot be cited. They are examples rather than authorities.
If the purpose of publishing judgments as examples is informing the public of how the court works, the thought occurs, will the point ever come a sufficient number of (non-citeable) examples has been published? Or will this encouragement continue, with the publication online of more and more judgments that serve no legal purpose (in that they cannot, or should not be cited) but inform the general public of how an individual judge has dealt with a specific set of circumstances in a non-citeable way?
I recently raised this question on Twitter and received a range of interesting responses, including:
- That judges should in fact be encouraged to publish more rather than fewer judgments, regardless of the legal status of the reports, in the interests of transparency; and
- In other fields of law, such as employment tribunals, and tribunals more generally, whereby several tens of thousands of ET judgments have already been published online, creating a sort of Panopticon where there is visibility of the outcome of all litigation in that area of law.
Commentary
Personally, I regard the encouragement to publish non-citable judgments as a means to an end; that end being greater transparency and in particular de-mystifying what happens in a typical claim for financial remedies. That end does not in my view require open-ended publication of non-precedent setting judgments. This stream of judgments, interesting as they are to read, will likely cause confusion where where non-lawyers (or lawyers who are not conversant with the PD of 9 April 2001) attempt to place weight on the contents. I’m similarly unconvinced of the merits of putting up judgments endlessly which have no direct use (aka the Panopticon) beyond raising popular awareness. This might mean that I’m still wedded to the 20th century view of utility: but if a judgment cannot be cited in court, for all of its eloquence and articulacy, it’s practical use is very limited. And for the avoidance of doubt, I’m not against opening up the family court; I’m just sceptical as to this part of the drive towards transparency.
After all, it’s not as though this is an area of law where collections of unreported cases can usefully produce tables of damages a la Kemp & Kemp. Thinking back to that first judgment I heard 25 years ago, I wonder if the lay clients who sat it would have felt more or less satisfied if the judgment had been even longer, with a lengthy section on the law (including a section entitled ‘Discussion’), later consigned to writing and (after anonymisation) published online with the National Archives.
Alexander Chandler KC
29 April 2024
[1] Sir Robert Megarry, “Temptations of the Bench” (1977)
[2] Although not those sitting as s.9 judges.
Feature pic : Royal Courts of Justice, courtesy of Dave Pierce (@davebass5) on Flickr