Not all judgments are created equal
Some, by more senior judges or courts (essentially High Court judges or above), may be regarded as primary or binding ‘authority’ for the propositions of law which they contain. They lay down the law, which lesser courts and judges must follow. Courts of the same or equivalent standing must think twice before departing from those rulings, but more senior courts can, and sometimes do, decide differently and may even ‘over-rule’ them. In such a case, it will be the higher court’s ruling, or precedent, that takes precedence.
But decisions of less senior judges do not have the same binding or persuasive effect. They are not ‘authorities’ for anything, but are published as examples of the law in action and for the purposes of transparency and open justice, to enable the public to see what it being done in the courts.
Such decisions, when published from the Family Court, are given a Neutral Citation number with a (B) after the case number. Those from High Court judges are published without the (B). We explained these citations in an earlier post: see What is happening with publication of Family Court judgments?
How cases are cited
Lawyers understand that when they cite a case in support of their argument, the status of that case is critical to its power to persuade or even bind the court to follow it. Another case, of higher status or effect, can trump it. The facts of the case do not need to be identical, so long as the principle it establishes can apply. But sometimes the facts are so different that the case being cited can be ‘distinguished’, ie treated as not applying to those different facts.
All this is sometimes hard for non-lawyers to grasp, especially non-lawyers who are representing themselves in court, and who may be tempted to regard any case on vaguely similar facts to their own to be not only relevant but utterly persuasive. It’s not that simple.
It is particularly difficult to distinguish between judgments that can be cited as authorities and those that can’t when they come from the Family Court. That’s because the Family Court, established in 2014 to deal with cases that might previously have gone to the County Court or the Magistrates Court, has three different levels, or tiers, of judge.
- High Court judges, who make decisions which are capable of being binding authority.
- Circuit judges, who would previously have sat in the County Court, and
- District Judges, who would previously have sat in the Magistrates’ Court,
both of whom can – and are encouraged to – publish their judgments in what is now the Family Court, but whose judgments are not ‘authorities’. They are not binding or even persuasive. They may be very interesting and illuminating. They may provide clear and intelligible reasons for the court’s decision. But they are not citable as authorities. (They are the ones with a (B) after the number.)
Moreover, some decisions even of High Court judges are not citable as authorities, if they do not arise from a hearing in which a substantive issue of law has been fully argued on both sides. This basically applies where the hearing was only an application or interim matter, or one or both parties were not legally represented and able fully to argue the points on both sides.
The circumstances where this restriction applies are fully explained in a Practice Direction laid down in 2001, reported as Practice Direction (Citation of Authorities) [2001] 1 WLR 1001 (available via ICLR).
But there are exceptions. A judgment by a High Court judge which would not otherwise be an authority can be cited as such if it contains an express statement by the judge that they intend the judgment to be citable, ie relied on in future in respect of a particular legal issue.
The same is true of judgments given by Circuit or District judges. While they would not normally be treated as authorities, they may be cited as such if they contain an express statement to the effect that the judge intended them to be citable on a particular issue.
New guidance
Guidance on all this has now been issued by the President of the Family Division, Sir Andrew McFarlane. He welcomes the increase in the publication of judgments by Family Court judges below High Court level, following his earlier guidance encouraging them to do so, particularly in the Financial Remedies Court. But he reminds judges and lawyers that such cases should not normally be cited as authorities unless they contain a statement expressly permitting that. These will be rare and exceptional cases, approved as such by the respective judge’s leadership judge. Provision is then made for retrospective approval to be given in the case of judgments already published without including the relevant statement, where necessary.
For convenience, we set out the guidance in full below.
Citation of Authorities: Judgments of Circuit Judges and District Judges
Background
- The work undertaken by the Judgment Publication Subgroup of the Transparency Implementation Group has led to a welcome increase in the publication of judgments by Family Court judges below High Court level.
- Current guidance issued by the President of the Family Division in June 2024 suggests that District Judges should aim to publish a minimum of five judgments per year; Circuit Judges, between five and 10.
- In the Financial Remedies Court, publication of judgments below High Court level has been explicitly encouraged for some time, because decisions at High Court Judge level and above are not representative of the vast majority of cases; publication of FRC judgments by Circuit and District Judges therefore promotes not only greater transparency but a consistency of approach.
- It has been noted that the Practice Direction on the Citation of Authorities [2001] WLR 1001 has not always been followed. It provides that a judgment below High Court level may not be cited (clause 6.2) “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” unless (clause 6.1) “it clearly indicates that it purports to establish a new principle or to extend the present law… that indication must take the form of an express statement to that effect.”
New principles - It follows that judgments at Circuit and District Judge level should not be cited unless they contain an express statement that the judge intends that the judgment should be citable (i.e. relied upon in the future in respect of that legal issue). Judgments that do not contain such an express statement will not be citable. These judgments can and should be published in the usual way to promote transparency but will not be capable of being referred to as primary authority.
- It is not expected that the practice of including a statement as described above will become common. It will not apply to judgments where the judge has applied existing law and/or which provide examples of how the law operates in practice. An express statement that a judgment is intended to be citable should be reserved only for (probably very rare) cases where new ground is being broken. A judge who is considering including such a statement within a published judgment should only do so with the approval of the appropriate leadership judge (identified below).
- A question arises in respect of past judgments which contain no such statement but were intended to address novel points of law. There are some decisions in the Financial Remedies Court in particular, and several in the Court of Protection, which fall into this category, dealing for the most part with points that tend not to arise in cases heard at High Court Judge level.
- In such a case, the judge should seek approval from their Leadership Judge to publish a statement which retrospectively approves citation of the judgment.
Route for approval
Financial Remedy Court cases: National Lead Judge of the FRC
All other cases in the Family Court: Family Presider
Court of Protection cases: Vice-President of the Court of Protection - A judge who publishes a judgment with such an express statement should confirm in the judgment that the statement has been approved by the relevant leadership judge.
Sir Andrew McFarlane
President of the Family Division
24 February 2025
RCJ image by piqsels