THOSE LETTERS: DEAR JUDGE – YOU WERE WRONG – PLEASE CHANGE YOUR MIND: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES

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1. 

   James Turner QC · January 25, 2017 at 16:55:14 · →

   I was counsel in the Goyal case that has been referred to in the Blog (acting pro bono), although I was not the Mr Turner in the other case that is cited.

   In relation to the Goyal case, what should be appreciated is that judgments that are sent out in draft by the Clerk to Mostyn J have a standard covering letter that includes the following paragraph:

   “If a party wishes to seek amplification of allegedly inadequate reasons for the decision (see Paulin v Paulin and Cativo Ltd [2009] EWCA Civ 221 at para 30(a)) then these should be submitted on a separate document clearly marked “Application for amplification of allegedly inadequate reasons for the decision” and a separate record of the costs referable to such application should be kept.”

   The problem is that if one goes to the Court of Appeal alleging that the judge has not addressed certain matters/arguments that are said to be relevant and one has not highlighted such matters to the judge first to give him the chance to deal with them or to include the allegedly missing reasoning there is the risk of criticism from the Court of Appeal. The difficulty is therefore in covering one’s back for the purposes of the appeal, without antagonising the trial judge too much (and the question of whether a trial judge has or has not addressed all relevant issues and/or provided proper reasoning is often a very subjective matter).

   It was with these points in mind, and with an intention of pursuing certain points to the Court of Appeal, that a separate document identifying those points was sent to the judge (pursuant to the directive in the standard form letter from his clerk), together with a covering e-mail that included the following passage:

   “Further to your e-mail below, please find attached, for the attention of Mr Justice Mostyn:

   (i) A schedule that I have prepared of a few suggested corrections to what seem to me to be typos, and one obvious factual error, in the draft judgment; and

   (ii) An application for amplification/consideration of certain matters which I respectfully suggest have not been (fully or specifically) addressed in the draft judgment. I raise these points in accordance with the guidance given in the authorities to which reference is made in my document, before making an assertion in any grounds of appeal that those particular matters have not been addressed. I acknowledge that, it is, of course, entirely a matter for his Lordship whether to supplement the present draft judgment in any way – I simply seek to avoid any criticism of me by the Court of Appeal if there should be an appeal”

   The “amplification” document included the following words:

   “1. This invitation for further clarification is made pursuant to the principles explained in cases such as:
   (i) English v. Emery Reimbold & Strick Ltd [2002] 1 W.L.R. 2409;
   (ii) Re M. [2009] 1 F.L.R. 1177;
   (iii) Paulin v. Paulin and another [2010] 1 W.L.R. 1057, CA; and
   (iv) Re A. (Children) (Judgment: Adequacy of Trial Judge’s Reasoning) [2012] 1 W.L.R. 595.
   2. The issues which the court is invited to consider in this regard are as follows: … [etc]”

   The point that arises from all of this is that one may be treading a very fine line and making a difficult professional judgement-call in such situations.

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