English Law explained for Non-Lawyers

Although this case is not a housing case (it was a family "relocation" case), a non-lawyer assisted with the matter. 

Lord Justice Wall explained in excellent, simple-to-understand terms the law of precedent and appeals of English law. 

Below is a taken from the transcript. BD v AID [2010] EWCA Civ 50 Lord Justice Wall (paras 4 - 14)

There are, of course, only two bases upon which permission to appeal can be granted. They are both contained in Civil Procedure Rule (CPR) 52.3(6), which reads as follows:- 

(6) Permission to appeal may be given only where - 

(a) the court consider that the appeal would have a real prospect of success; or 

(b) there is some other compelling reason why the appeal should be heard. 

I propose to address each of these headings in turn. Before I do so. However, it is necessary; (1) that I explain to the applicant (who is not a lawyer) one feature of the English Legal System which is relevant to both limbs of the rule, namely the doctrine of precedent; and (2) that I explain how the doctrine of precedent impacts on the present case. 

The doctrine of precedent means that judges at first instances, such as Judge Corbett, are bound by – and thus obliged to follow – decisions of the Court of Appeal and the House of Lords (now, of course, the Supreme Court) relating to the same subject matter as the case which the first instance judge is hearing. 

Furthermore, the Court of Appeal is itself bound by its own previous decisions. 

There is also authority for the proposition that Circuit Judges such as Judge Corbett are bound by the decisions of High Court Judges:- see the decision of the Court of appeal in Gloucestershire County Council v P. and others [2000] Fam 1 at 3B-C, 8C-D and 12G.

In Family Law the doctrine of precedent is perhaps less rigidly applied than in other areas of the law for two main reasons. The first is that the facts of family cases vary very widely, and it is often possible to "distinguish" a decision of the Court of Appeal or the House of Lords – and thus to decline follow it – on the grounds that the facts are very different from the case being decided. The second reason is that family judges, in deciding the paramountcy principle under section 1 of the Children Act 1989 exercise a very wide discretion, with which the appellate court will not interfere unless it can be demonstrated that the judge was "plainly wrong" – see the decision of the House of Lords in G v G [1985] 1 WLR 645. 

However, where a superior court – be it the House of Lords or the Court of Appeal – has either stated a principle or given guidelines to be followed by judges hearing particular categories of case, the judge at first instance has to follow that principle or those guidelines. 

Thus in "relocation" cases, the judge at first instance is duty bound to follow the guidance given in Payne v Payne [2001] EWCA Civ 166, [2001] Fam 473 and other cases of the Court of Appeal on the same point. 

The principles and guideline in a decision of the Court of Appeal in a case such as Payne v Payne can only be altered in one of two ways. The first is by legislation: the second is by it being overruled by a decision of the Supreme Court. 

In English law, Parliament is supreme and sovereign. It can, in theory, do whatever it likes. The task of the courts is to implement the will of Parliament. So, if Parliament altered the Children Act 1989 or introduced separate legislation dealing with relocation cases, courts at every level, including the Supreme Court, would be bound by what Parliament had enacted. 

Permission is, of course, required for an appeal from the Court of Appeal to the Supreme Court. In some circumstances, a case can "leap-frog" where the outcome in the Court of Appeal is a foregone conclusion. The normal practice, however, is for the Court of Appeal to refuse permission to appeal from its decisions, so that the Supreme Court can itself decide whether or not it wishes to hear the particular case. 

However, one rule is clear. If the Court of Appeal, at or after an oral hearing, refuses permission to appeal from a first instance judge to the Court of Appeal, that is the end of the matter. The disappointed litigant cannot appeal to the Supreme Court from such a refusal. 

To put the matter in concrete terms: - if I refuse the applicant's application in the present case, the domestic appeal process will come to an end. The applicant will not be able to appeal my refusal to the Supreme Court: - see paragraph 4.8 of the Practice Direction to Part 52 of CPR, which reads - “There is no appeal from a decision of the appeal court to allow or refuse permission to appeal to that court.”

Paragraph 4.8 is given statutory force by section 54 of the Access to Justice Act 1999, which I need not set out.