When a judge disagrees with precedent

Family Law|October 22nd 2015

I have often said that I do not envy the task of a judge. Not only do they have to make very difficult decisions, sometimes under extremely trying circumstances, but they can also find themselves in a position of having to apply law with which they don’t agree, or which leads to a result that does not seem to them to be the correct one.

Of course, judges must apply the law as it is, irrespective of their personal views upon its merits. Thus they must follow precedent, the system under which courts are generally required to follow previous decisions by courts of a higher or equal level, even if the judges do not agree with a previous decision that is binding upon them.

Sometimes, however, it is not so easy. On Tuesday the Court of Appeal handed down a remarkable judgment in an appeal from the Court of Protection, KW & Others v Rochdale Metropolitan Borough Council, in which the Master of the Rolls Lord Dyson had some serious things to say about the approach of the judge whose decision was under appeal, Mr Justice Mostyn.

Now, as I am sure I have said before, I have the utmost respect for Mr Justice Mostyn, so what follows is not intended to be any sort of personal criticism from me.

The case concerned the issue of deprivation of liberty safeguards (DoLs), a subject that I have touched upon previously, in this post. It involved a 52 year old severely mentally incapacitated woman, who requires support 24 hours a day. The local authority applied to the Court of Protection for directions under the Mental Capacity Act 2005. One of the questions that arose was whether the woman was subject to a “deprivation of liberty” within the meaning of article 5 of the European Convention on Human Rights. If there is a deprivation of liberty, then it has to be authorised either by a court or by the DoLs procedures.

The matter went before Mr Justice Mostyn and he decided that the care package provided for the woman did not amount to a deprivation of liberty. The woman, via her litigation friend, appealed. The local authority did not oppose the appeal and a consent order was drawn up allowing the appeal. Attached to the order was a statement that the reason for inviting the Court of Appeal to allow the appeal by consent was that Mr Justice Mostyn had erred in law in holding that there was not a deprivation of liberty, because he had not followed the Supreme Court’s decision on the point in the ‘Cheshire West’ case.

The matter then went back before Mr Justice Mostyn. Surprisingly, he held that the Court of Appeal had not decided that the woman was being deprived of her liberty. The woman appealed again, and the matter went back before the Court of Appeal.

The crux of the matter so far as the Court of Appeal was concerned was the difference between the test set out by the Supreme Court to determine whether there was a deprivation of liberty and Mr Justice Mostyn’s view of what the test should be. The Supreme Court had stated that the test was whether the mentally incapacitated person was under continuous supervision and control of those caring for them and was not free to leave. Lord Dyson said that Mostyn J had made it clear that he did not agree with this test and had found that the woman was not “in any realistic way being constrained from exercising the freedom to leave, in the required sense, for the essential reason that she does not have the physical or mental ability to exercise that freedom”.

Now, I am certainly no expert on DoLs, but I think Mr Justice Mostyn may have a point. Nevertheless, he was obviously obliged to follow the test laid down by the Supreme Court and accordingly the second appeal was also allowed. Clearly not happy, Lord Dyson had this to say at the end of his judgment:

“This litigation has an unfortunate history. The judge has twice made decisions which have been the subject of an appeal to this court. On both occasions, the parties have agreed that the appeal must be allowed. This has led to considerable unnecessary costs to the public purse and unnecessary use of court time. We regret to say that it is the judge’s tenacious adherence to his jurisprudential analysis leading to his conclusion that Cheshire West was wrongly decided that has been at the root of this. He says at para 26 of the second judgment that “the law is now in a state of serious confusion”. Even if Cheshire West is wrong, there is nothing confusing about it.

“In our view, the judge’s passionate view that the legal analysis of the majority in Cheshire West is wrong is in danger of distorting his approach to these cases. In the light of the unfortunate history, we are of the opinion that the review should be conducted by a different judge, who need not be a high court judge.”


Put simply, principles, no matter how strongly held, do not trump law.

The full report in KW & Others v Rochdale Metropolitan Borough Council can be read here.

Photo by Michael Grimes via Flickr

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