Thursday, March 29, 2012

Lawrence v Gallagher: Judicial creations should not be elevated to the status of s.25 criteria

Lord Justice Thorpe
The case of Lawrence v Gallagher [2012] EWCA Civ 394, decided today, has caused a number of headlines, primarily because it is said to be the first substantial appeal concerning financial orders made following the dissolution of a Civil Partnership. As will be seen, however, that is not of particular importance of itself.

In this post I will not deal with the facts in this case, or with the decision itself. As Lord Justice Thorpe said giving the leading judgment, the case itself was comparatively simple. What, then, can be usefully taken from the judgement? I would suggest that there are two things:

Firstly, and surely obviously, as stated by Lord Justice Thorpe in paragraph 2: "The fact that the claim arises from the dissolution of a Civil Partnership rather than a marriage is of little moment since it is common ground that the language of schedule 5 of the Civil Partnership Act 2004 is identical to the language of s.25 of the Matrimonial Causes Act 1973."

Secondly, until such time as the law is clarified, for example as a result of the Law Commission's review of two aspects of the law on financial provision, "judges should consistently apply the s.25 criteria to the facts of the individual case wherever possible avoiding the over complication of the resulting judgment" (paragraph 37). This was a reference to the various "new approaches often expressed in newly-minted phrases" developed by judges since White v White, "designed to guide the search for a fair outcome or to safeguard against the unfair outcome". In this case, counsel on both sides were criticised for complicating the matter by using "one judicial creation or another" to achieve their goals. In his concurring judgment Mr Justice Ryder agreed (at paragraph 57):
"There is a prevalent practice of coining ever more sophisticated phrases which are intended by practitioners to highlight particular aspects of the notion of ‘fairness’. That practice has created an expectation that the judge will consider the same in judgment. That expectation is inappropriate not least because the linguistic devices employed are not terms of art: they are no more than tools to assist in the interpretation of fact which should not be elevated to the status of factors that have to be considered alongside the section 25 criteria. Not only does such a misconception risk inappropriate weight being given to an analysis born out of a linguistic device, it carries with it the real danger of miscalculation... "
Quite where this leaves all of the jurisprudence since White v White in terms of practical value to lawyers attempting to advise their clients, I'm not sure. Let us hope that the Law Commission will provide greater clarity and certainty.

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