Case No. NG21C00169

. Nor is there anything to suggest that the principle is one-sided, in public law any more than in private law. It may be invoked by either party, public or private. Indeed, the two Latin maxims quoted by Lord Bridge make clear that it is a principle of general public concern, quite apart from the particular interests of the parties, public or private.” (Emphasis added)30.However, 25 years ago in Re B (Children Act Proceedings: Issue Estoppel) [1997] Fam 117 at 127, Hale J held that the strict doctrine of issue estoppel can rarely, if ever, apply in children's cases. That case was not in fact directly about issue estoppel because the parties were not the same in both sets of proceedings. The subsequent proceedings had a different mother and different children. The actual question was whether the father was bound by a finding of sexual abuse in relation to other children made in the earlier proceedings. The previous finding was plainly admissible; the real question was the weight that should be given to it and how much further evidence, if any, should be allowed in relation to forensic examination of those events. The case was thus concerned with a rule of evidence (admissibility of the prior judgment) and procedural case management powers (the extent of further evidence about those events). In terms of ratio decidendi it had nothing to do with the rule of substantive law expressed in the doctrine of res judicata.31.Nonetheless, Hale J commented extensively on the place of the doctrine in children’s cases. She cited (at 127) B v Derbyshire County Council [1992] 1 FLR 538 where Sir Stephen Brown P stated at 545:“I find it very difficult to conceive of any situation or circumstance in which the … doctrine of res judicata could be applicable, but it is impossible to consider every hypothetical set of circumstances which might come before a court. However, in the context of care proceedings, it is most unlikely ever to be applicable.”32.Although there were cases pulling in the opposite direction (e.g. Re S, S and A (Care Proceedings: Issue Estoppel) [1995] 2 FLR 244, 248 per Wilson J) Hale J was persuaded that the doctrine had no place in children’s cases because of the inquisitorial nature of the proceedings, citing (at 126) the well-known decision of Thoday v. Thoday [1964] P 181 where Diplock LJ stated at 197:“‘Estoppel’ merely means that, under the rules of the adversary system of procedure upon which the common law of England is based, a party is not allowed, in certain circumstances, to prove in litigation particular facts or matters which, if proved, would assist him to succeed as plaintiff or defendant in an action. If the court is required to exercise an inquisitorial function and may inquire into facts which the parties do not choose to prove, or would under the adversary system be prevented from proving, this is a function to which the common law concept of estoppel is alien. It may well be a rational rule to apply in the exercise of such an inquisitorial function to say that if a court having jurisdiction to do so has once inquired into the truth of a particular allegation of fact and reached a decision thereon, another court of co-ordinate jurisdiction in the exercise of its own discretion should not re-embark on the same inquiry, but should accept the decision of the first court. But this is a different concept from estoppel as hitherto known in English law. It will be interesting to watch its development in future cases …”I draw attention to the statement of Diplock LJ that estoppel is part of the rules of our “adversary system of procedure”. However, as explained by Lord Sumption, it is more correctly to be seen as a rule of substantive law. 33.Nonetheless, in reliance on this passage, Hale J held (at 127) that:“…the courts’ inquisitorial function means that the strict doctrine of issue estoppel can rarely, if ever, apply in children's cases …”34.Although Hale J maintained that the doctrine of res judicata should not apply to children’s cases, she accepted that instances where a rehearing would be allowed would be rare, citing (at 124) Re S (Discharge of Care Order) [1995] 2 FLR 639 where Waite LJ stated at 646:“Such instances are bound, in the nature of things, to be extremely rare. The willingness of the family jurisdiction to relax the ordinary rules of issue estoppel … does not originate from laxity or benevolence but from the recognition that where children are concerned there is likely to be an infinite variety of circumstances whose proper consideration in the best interests of the child is not to be trammelled by the arbitrary imposition of procedural rules. That is a policy whose sole purpose, however, is to preserve flexibility to deal with unusual circumstances. In the general run of cases the family courts … will be every bit as alert as courts in other jurisdictions. The maxim ‘sit finis litium’ is, as a general rule, rigorously enforced in children cases, where the statutory objective of an early determination of questions concerning the upbringing of a child expressed in section 1(2) of the Children Act 1989 is treated as requiring that such determination shall not only be swift but final.”.I draw attention to Waite LJ’s characterisation of issue estoppel as a mere example of “procedural rules”, capable of being arbitrarily imposed. 35.In my respectful opinion the inquisitorial nature of a proceeding is not a good reason to disapply this rule of fundamental importance.36.Thoday was a divorce case, and from the very inception of judicial divorce in 1858 the process was mandated by the terms of the statute to be inquisitorial: see sections 29 and 30 of the Matrimonial Causes Act 1857. But that did not mean that the general law concept of estoppel was cast aside in such inquisitorial proceedings. On the contrary, the rule was rigorously applied. An early example was Finney v Finney (1868) LR 1 P & D 483 where a wife had petitioned for judicial separation on the ground of cruelty. The charges were defended by the husband. The court found that they were not proved and dismissed the petition. The wife then set up the same charges of cruelty coupled with adultery in a subsequent petition for dissolution. The Judge Ordinary, Sir James Wilde (later Lord Penzance) held that she was estopped from doing so. He stated:“But the questions of fact raised in this case are precisely the same as those which were inquired into and determined in a previous suit in this very court. In both suits the husband is charged with the same matrimonial offence, that of cruelty. That issue having been tried, and found in the husband's favour in the former suit, the wife now seeks to have it tried over again, and it is argued that she is entitled to reiterate those identical charges, because she has tacked on to them a charge of adultery. I think that cannot be allowed. According to the practice of every court, after a matter has once been put in issue and tried, and there has been a finding or a verdict on that issue, and thereupon a judgment, such finding and judgment is conclusive between the same parties on that issue. In all courts it would be treated as an estoppel. There is abundant reason why, in this court especially, the same questions should not be tried over again. In most cases the trials are at the cost of the husband, and the Court ought not to allow a wife to persecute a husband as she could do if she were allowed to repeat charges which have once been found against her. The allegations of cruelty must be struck out of the petition.”So, the inquisitorial nature of the proceedings did not prevent the application of the estoppel in that case. Equally in Thoday itself, Diplock LJ accepted and applied the law of estoppel. He held that no estoppel per rem judicatam arose as the wife was alleging a different matrimonial offence in the second proceedings (constructive desertion) to that which she had pleaded in the first (cruelty). No issue estoppel arose because the judge in the earlier proceedings had not made sufficiently precise findings to be able to say that a given issue had been decided in an identifiable way. All he had done was to decide that the wife had not established the matrimonial offence of cruelty she alleged. Thus Diplock LJ concluded his judgment:“It is, in my view, very desirable that in cases of this kind, where a failed case of cruelty may be later followed by a case based on actual or constructive desertion, judges should state their findings on each of the issues. But it was not done in this case and consequently, in my view, no “issue estoppel” arises either.”Therefore, notwithstanding Diplock LJ’s doubts, it is clear that in this paradigm of an inquisitorial process – a defended divorce – the general law concept of estoppel is fully applicable.37.I would also venture the respectful opinion that, so far as Diplock LJ’s doubts are concerned, there would be no substantive difference between an estoppel preventing an issue from being re-litigated in adversarial proceedings and an alternative rule for inquisitorial proceedings preventing a previously decided issue from being re-litigated. It is true that the former is a rule of substantive law (although, as I have stated, Diplock LJ treats it as a rule of procedure) while the inquisitorial alternative would be an unyielding procedural rule based on the principle that a rehearing would be an abuse of process as explained by Lord Diplock in Hunter v Chief Constable of the West Midlands Police [1982] AC 529 at 541. But the effect of the two rules would be exactly the same. 38.In Re E (Children: Reopening Findings of Fact) [2019] EWCA Civ 1447 the Court of Appeal was principally concerned with the procedural question of how in continuing proceedings a challenge to a finding of fact might be made. Could it only be by way of appeal? Or could an application be made to the court of first instance? Jackson LJ held that the latter course was permissible. He held at [30] that on such an application to the court of first instance the principles in Re B: “… [would] apply equally where there are later proceedings about the same child and where there are later proceedings about another child of the same parents. The issue will only arise where it is suggested that there is further evidence that might make a difference.” Thus, Re B would apply in a true issue estoppel situation where the later case not only had the same parties but precisely the same issue as had been previously litigated. 39.At [40] Jackson LJ placed reliance on what he saw as the fundamental change in the statutory landscape wrought by the creation of the Family Court and the enactment (by s.17 of, and Schedule 10 to, the Crime and Courts Act 2013) of s. 31F(6) Matrimonial and Family Proceedings Act 1984. This empowers the new Family Court to vary, suspend, rescind or revive any order made by it. But this provision did no more than to give the Family Court effectively the same power in relation to its orders as the County Court (where most care proceedings were heard up to 2014) had possessed since 1846: see section 89 of the County Court Act 1846 and CB v EB [2020] EWFC 72 at [34]. This long-standing procedural power to set aside a judgment and order a new trial did not give the County Court judge a carte blanche; on the contrary, the power had to be exercised in accordance with the existing law: Brown v Dean [1910] AC 373, HL per Lord Loreburn LC at 375.40.Jackson LJ’s conclusion was that a challenge at first instance was permissible, albeit that it should be subject to a form of permission filter. This would be the first of three stages, where the court considers whether it will permit any reconsideration of the earlier finding: [49]. At [50(3)] he set out the test for permission: “…whether there is any reason to think that a rehearing of the issue will result in any different finding from that in the earlier trial; there must be solid grounds for believing that the earlier findings require revisiting.”In Re CTD (A Child: Rehearing) [2020] EWCA Civ 1316 at [4] Jackson LJ elaborated this test:“….at the first stage the applicant must show that there are solid grounds for believing that a rehearing will result in a different finding. Mere speculation and hope are not enough.”41.In my opinion this test, when correctly understood, is not (or should not be) materially different to that obtaining under the general law. It is important to understand that under the general law, notwithstanding a bar of issue estoppel, a party can exceptionally challenge an anterior judgment in fresh proceedings at first instance in certain clearly defined circumstances. The exceptions exist because the overriding consideration is that the application of an estoppel must be to work justice and not injustice. This salutary principle derives from Carl Zeiss Stiftung v. Rayner and Keeler Limited (No.2) [1967] 1 AC 853 where Lord Upjohn stated at p.947:“…all estoppels are not odious, but must be applied so as to work justice and not injustice and I think the principle of issue estoppel must be applied to the circumstances of the subsequent case with this overriding consideration in mind.”I note that this famous dictum was cited by Hale J in Re B at 128.42.The authorities identify two types of case where justice provides an exception to an estoppel preventing re-litigation of the same issue between the same parties:i)First, and obviously, an anterior judgment can be challenged on the grounds that it was fraudulently obtained: Takhar v. Gracefield Developments Limited [2019] UKSC 13, [2020] AC 450.ii)Second, an anterior judgment can be challenged on the ground that new facts have emerged which strongly throw into doubt the correctness of the original decision. In Arnold v National Westminster Bank Plc [1991] 2 AC 93 at 109 Lord Keith of Kinkel stated: “….there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result …”This exception echoed the well-known decision of the House of Lords in Phosphate Sewage Company Limited v Molleson (1879) 4 App Cas 801 where Lord Cairns LC held that an anterior judgment can be challenged where additional facts had emerged which ‘entirely changes the aspect of the case’ and which ‘could not with reasonable diligence have been ascertained before.’ In Allsop at [26] the continuing validity of this exception was affirmed by the Court of Appeal.43.It therefore seems to me that Jackson LJ’s test of “there must be solid grounds for believing that the earlier findings require revisiting”, ought to be interpreted conformably with these exceptions if a divergence from the general law is to be averted. This would mean that “solid grounds” would normally only be capable of being shown in special circumstances where new evidence had emerged which entirely changes the aspect of the case and which could not with reasonable diligence have been ascertained before. Such an interpretation would also be consistent with the powerful reasoning of Waite LJ referred to above where he said that the court will in the “general run of children’s cases”