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Two recent decisions of the Court of Appeal have allowed appeals in family law cases on grounds that the principle of stare decisis did not apply because decisions of the court below were wrong (in the second cases (Petrodel Resources Ltd & Ors v Prest & Ors  EWCA Civ 1395) permission to appeal to the Supreme Court has been given and the appeal heard: judgement is awaited).
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.
Crime (International Co-operation) Act 2003 s 9(2) provides for international mutual assistance over criminal prosecution: ‘(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)).
In general the Court of Appeal cannot review its own decisions: if it did the law would be uncertain. A finding that an earlier court had failed to consider a statutory provision might justify, as in Gohil, that that earlier decision be reversed; for it had been decided per incuriam: in error. An overlooked statute must provide higher authority which is binding on the later Court of Appeal (see per Lord Greene MR in Young v Bristol Aeroplane Co Ltd  KB 718).
For example in two decisions of the Court of Appeal Ormord LJ (Robinson v Robinson (Disclosure) (1983) 4 FLR 102) and Wilson LJ (Judge v Judge  EWCA Civ 1458,  1 FLR 1287) the Court of Appeal clearly stated that an application to set aside should be made to the court which made the decision. That judicial assertion seems to be per incuriam. Senior Courts Act 1981 s 17 says that the High Court cannot set aside its own decisions save where rules provide (and see B-T v B-T  2 FLR 1; Taylor v Lawrence  EWCA Civ 90,  QB 528). There are no rules on the point. The only route to set aside is by appeal out of time (whether within terms of Barder v Barder (Caluori intervening)  AC 20,  2 FLR 480, or otherwise) to the appropriate appellate court (under FPR 2010 Part 30.14).
David Burrows is author of Practice of Family Law: Evidence and Procedure (Jordans, 2012).Appeals are 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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