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Altering draft judgments: is that your final answer your Honour?

The trial is over, judgment has been reserved and those involved await the result with anticipation. But what can be done when the decision arrives in the form of a draft judgment and you believe the judgment is defective?

The draft judgment: procedure

The draft judgment is generally circulated with the comment that counsel should submit any typing corrections or other obvious errors in writing so that changes can be incorporated, if the judge accepts them, in the handed down judgment. CPR Practice Direction (PD) 40E applies to all reserved judgments which the court intends to hand down in writing, and sets out that proposed corrections should be sent to the judge’s clerk and the other parties involved.

The parties have a duty to correct errors but, as many case authorities have made clear, parties are not permitted to re-argue the case or try and persuade the judge to change their mind. It can be an extremely tricky call as to whether there is simply disagreement in the conclusion or findings, or whether the judge has, for example, provided inadequate reasons.

The judge has discretion to change their decision at any time before their order is drawn up and perfected (which takes place when the order is sealed by the court). If there has been an error; this is the opportunity to highlight it. Of course, whether it is accepted is entirely within the judge’s discretion. Where the judge believes that they are wrong, the judicial oath requires them to correct any errors. It is obviously rather more difficult where counsel suggests that the judge has erred in their decision and invites them to reconsider his position.

Case authority: changing the decision

Following the case of Re Barrell Enterprises, it was held that whether the judge should exercise their own discretion to change their decision was only to be used in “exceptional circumstances”. However, the position changed following the case of L and B (Children) and instead, in deciding whether to exercise that jurisdiction, a judge must consider the overriding objective to deal with the case justly. It was further held that a relevant factor will be whether any party has acted to their detriment following the original judgment, but that each case will depend on its particular facts and circumstances.

There is much case law where this practice has been discouraged; not least so as to not create uncertainty or disrupt the finality of judgment. Email correspondence sent directly to the judge without being copied to the other side has been heavily criticised as inappropriate and the court was very concerned about the appearance of “closed door justice”.

The difficulty of this situation has been highlighted recently in the case of Goyal v Goyal (No. 3), where counsel invited the judge to “amplify” his “allegedly inadequate” reasons following the guidance set down in Paulin v Cativo Ltd. In that case, the judge refused the request for amplification and stated that it was not his role to address every single point raised in an argument, but simply to reach conclusions on the relevant evidence and to give reasons to support his view accordingly. He felt that he had done this.

Appeal

This issue becomes particularly relevant where a party is considering an appeal. In order to avoid potential criticism from the Court of Appeal, it is sensible to give the judge the opportunity to amend or deal with any relevant points to amplify them. In English v Emery Reimbold and Strick Limited, the Court of Appeal recommended a course to follow on applications for permissions to appeal on the grounds of lack of reasons. They concluded that a party:

“…should not seek to upset a judgment on the ground of inadequacy of reasons unless, despite the advantage of considering the judgment with knowledge of the evidence given and submissions made at the trial, that party is unable to understand why it is that the Judge has reached an adverse decision.”

The court recommended that, where the application is made to the trial judge, the judge should consider whether their judgment is defective for lack of reasons and that they should adjourn the application if this is found to be necessary. If the judge considers that the judgment lacks adequate reasons, they should refuse to appeal on the basis that they will remedy the defect by providing additional reasons. Alternatively, if the application is made to the appellate court and the court considers the application to be well founded, the court should consider adjourning the application and remitting the case to the trial judge to invite him to provide additional reasons for their decision or, where appropriate, their reasons for a specific finding.

Practical advice

In conclusion, when faced with such a situation, each case will need very careful consideration as to how best to proceed, as it is a very fine line to tread. However, where a party is considering appealing the decision, counsel may well advise writing to the judge requesting that the reasons are “amplified” to avoid criticism from the Court of Appeal. What is clear is that if this course of action is considered necessary, the other side should always be copied on any correspondence with the court. Ultimately, it is at the judge’s discretion; but if you don’t ask, you don’t get, so if counsel is prepared to risk being labelled temerarious (if the judge is not persuaded), it will be worth it if successful. However, it should be borne in mind that if the judge is persuaded to amend the draft judgment, this may well lead to an appeal from the other side. All these factors need to be weighed up when contemplating whether to go down this route. It is likely to come down to counsel’s judgment as to whether they feel comfortable attempting such an application.

February 14th 2017

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