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Two recent decisions of the Court of Appeal has allowed family law cases on grounds that stare decisis did not apply because decisions of the court were wrong; though in the second (Petrodel Resources Ltd & Ors v Prest & Ors  EWCA Civ 1395) permission to appeal against to the Supreme Court has been given.
In P v P  EWHC 1733 (Fam), Moylan J ordered production in financial remedy proceedings of information to Mrs Gohil against the Crown Prosecution Service (under Family Procedure Rules 2010 r 21.2). The information had been provided to CPS under international provisions intended to assist criminal prosecution; but Moylan J considered himself bound by the Court of Appeal in in BOC Limited v Instrument Technology Limited  QB 537 ('BOC'). The information was to assist Mrs Gohil in her application to have set aside an existing financial order. In Crown Prosecution Service & Anor v Gohil  EWCA Civ 1550 the order was reversed; and BOC was held to have been decided per incuriam.
'(2) The evidence may not without the consent of the appropriate overseas authority be used for any purpose other than that specified in the request.' This wording seemed to leave little room for doubt; but Moylan J had held 'that he was bound by' the Court of Appeal decision in BOC. There the court had held that a similar statutory provision 'implicitly prohibited the use of evidence obtained under a letter of request in criminal proceedings..., but that it did not prohibit its use in civil proceedings.' Moylan J held that he had a discretion as to whether to order disclosure, and did so: the material was necessary for the fair disposal of Mrs Gohil's application.
CPS argued that BOC was not binding: it was 'plainly wrong and [decided] per incuriam'. The court agreed. They found that the statutory language was clear and indicated only one course on Mrs Gohil's application:
 ... The starting point for any exercise of statutory interpretation is that the language of the statute should be given its ordinary meaning. The language of section 3(7) is straightforward and clear. The clear statutory prohibition is subject to a single express exception [where] the requested authority consents to the wider use of the evidence.
Further, any departure from the actual meaning of a statute must be clearly justified; but in BOC the court had (para ) 'interpreted the prohibition as implicitly subject to another restriction, namely that it applied to other criminal investigations and proceedings' (para ). However, any implication to be imported into a statute must be clearly justified on terms that it is obvious and/or necessary (as further explained in eg R v Special Commissioner exp Morgan Grenfell  UKHL 21; Bowman v Fels  EWCA Civ 226,  2 FLR 247 (another proceeds of crime case)).
When can the Court of Appeal review its own earlier decisions? In general, not at all; but a finding that another division of the court had failed to consider a statutory provision might justify, as in Gohil, that an earlier decision of the court be reversed in the Court of Appeal, because decided per incuriam: statute provided higher binding authority than an earlier Court of Appeal decision (see per Lord Greene MR in Young v Bristol Aeroplane Co Ltd  KB 718).
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012). Appeals is dealt with in Chapter 8.
The views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing and should not be considered as legal advice.
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