THOSE LETTERS: DEAR JUDGE – YOU WERE WRONG – PLEASE CHANGE YOUR MIND: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES
There is an interesting postscript to the judgment of Mr Justice Mostyn in Goyal -v- Goyal [2017] EWFC 1. It relates to the practice of using letters to the judge in an attempt to alter the terms of a draft judgment. A party is under a duty to point out mistakes and errors but not, except in the most exceptional circumstances, to attempt to re-open the case.
Addendum
One of the interesting things about blogging is that you can get instant feedback and also give other people a chance to respond. I encourage everybody to read the section from James Turner QC in the comments section below which sets out the contents of the letter in question. Also James’ observation:
“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.”
THE JUDGE’S OBSERVATIONS IN GOYAL
“Postscript
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Following the distribution of this judgment in draft I have received from Mr Turner QC a request for “amplification” of my “allegedly inadequate” reasons. This request is in my view an attempt to reargue points rejected by me, some of which I did not deem necessary expressly to address. It is not my function to address every point raised in argument. My function is to reach conclusions on the relevant evidence and to give reasons to support my view (see Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 per Lewison LJ at para 115). This I have done. I reject the request for “amplification”.”
RE-OPENING THE CASE BY CORRESPONDENCE
There can be a tendency to use the opportunity to read, and send corrections to a draft judgment, to attempt to re-argue the case. We have seen this before in Altus Group (UK) Limited -v- Baker Tilly [2015] EWHC 12 (Ch)
“Postscript
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The text of the foregoing part of this judgment is, subject to typographical corrections, substantially the same as that which I circulated in draft on 5 January 2015, when I indicated my intention to hand judgment down today.
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On the evening of 6 January the claimant’s representatives served submissions in respect of the draft judgment, requesting that I reconsider paragraphs 85 to 92, which deal with primary causation. Mr Turner managed to serve written submissions in response that same evening. I have considered both sets of submissions and the documents accompanying them, as well as a short response received late this morning from the claimant’s solicitors.
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The claimant’s argument may be summarised shortly as follows. The judgment holds that the breach of duty occurred in January 2009, which is the date when the necessary advice ought to have been given and when the claimant would have begun to take action in response to that advice: see paragraphs 67 to 82, 89 and 181.1 above. The finding against the claimant on causation was based on the premiss that in January 2009 the claimant either had engaged or was about to engage PwC. However, there was no evidence at trial that the claimant had retained PwC as early as January 2009; the evidence went no further than that the retainer had been arranged before 1 June 2009. Further, the claimant has now, “[p]ursuant to [its] continuing duty of disclosure”, re-examined its records, from which it can confirm that the engagement letter was dated 26 May 2009 and signed on 10 June 2009—both dates being several months after the relevant decision would have been made. Therefore “the Court has proceeded in error in assuming that as at January 2009 Dale Lawr had engaged or was about to engage PwC to conduct tax work.” The proper inference is that the claimant would have engaged EY in 2009.
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I shall not reconsider my decision.
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For the claimant, Mr Yates referred me to the decisions of the Court of Appeal in In re Barrell Enterprises [1973] 1 WLR 19 and Paulin v Paulin [2009] EWCA Civ 221, [2010] 1 WLR 1057. For the defendant, Mr Turner referred me to the same Court’s decision in Robinson v Fernsby [2003] EWCA Civ 1820. I have also found assistance in the discussion in paragraphs 16 to 27 of the judgment of Lady Hale in Re L and B (children) [2013] UKSC 8, [2013] 1 WLR 634; it seems to me that previous authorities must now be read in the light of that discussion.
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The following considerations appear to me to be relevant for present purposes.
1) There is no doubt that the power to reconsider and alter the judgment exists. Further, the request for reconsideration has been made in respect of a judgment that has not yet been given; this is not merely a case where a judgment has been handed down and thereby become a public document but where the absence of a sealed order giving effect to the judgment means that the court retains a power to alter its reasoning or even its conclusions.
2) Each case is fact-sensitive, and in deciding whether to exercise its power to alter the substance of a draft judgment the court should apply the overriding objective.
3) Two relevant matters may come into some degree of tension. On the one hand, the court will not wish to hand down a judgment if it has come to the view that the judgment would do injustice as between the parties. On the other hand, the point has repeatedly been emphasised that the practice of providing draft judgments is intended to facilitate the avoidance of errors of typography and detail; it is not intended to provide an opportunity for the parties to reargue points on which they have lost or to seek to adduce new evidence to bolster cases that can now be seen to have been inadequately supported at trial. (In this regard, cf. paragraphs 94 to 98 of Robinson v Fernsby.)
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In the present case, however, I do not find any tension in the relevant factors. I do not see any reason to alter my conclusion regarding causation. And I do not consider that any proper justification has been shown for seeking to reopen that issue after circulation of the draft judgment.
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First, I do not consider that the matters raised by the claimant affect the reasoning in the earlier parts of this judgment or require it to be amended. On the basis of the new evidence sought to be adduced by the claimant, which for the purposes of this paragraph only I shall treat as accepted, it now appears that in January 2009 Ms Lawr had not yet appointed PwC; she was to do so in a few months’ time. I have not assumed that there had already been an appointment; see paragraph 90 above. For the purposes of that paragraph, the second alternative—Ms Lawr “was shortly to appoint [PwC] as the Altus Group’s advisers on matters of UK tax—is the correct one. If the claimant’s position is that there is determinative significance in the interval between January 2009 (when the advice would have been received) and 26 May 2009 (when the engagement letter was written), I disagree. There is nothing to suggest that the latter date marks some conversion experience on Ms Lawr’s part, or that her professed admiration for PwC was a recent matter. Moreover, in the end, the matter comes back to this: it was for the claimant to prove its case on causation at trial, and neither the evidence adduced at trial nor the evidence sought now to be adduced is (in my judgment) sufficient for the purpose.
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Second, I do not consider that there was any justification for the claimant to seek reconsideration of my findings on causation. If it is intended to suggest that my draft judgment was prepared on the basis of a mistake of fact (on the basis of the evidence given at trial), the suggestion is incorrect; I am aware of the evidence summarised in paragraph 4 of Mr Yates’ submissions and have had regard to it. However, to the extent that reliance is placed on the new disclosure, the following observations may be made. First, the documents cannot bear the weight placed on them by the claimant. Second, the claimant’s legal advisers were well aware both of the nature of their duty of disclosure and of the incidence of the burden of proof. They could have disclosed the documents in advance of trial, if they considered them relevant. (If, as is suggested, their relevance became apparent only in the course of or as a result of cross-examination, they could and should have been disclosed at that point.) Third, even if the new documents are said to be produced under a continuing duty of disclosure, the claimant cannot now rely on further documents without permission: r. 31.21. I should regard it as wholly wrong, as being inconsistent both with the well-known purpose for which draft judgments are circulated and with sound case-management and discipline in litigation, to permit the claimant now to re-open the issue of causation and adduce further evidence in that regard.
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No terms of order have been agreed between the parties. The claimant has indicated that it seeks permission to appeal from this court. In accordance with the indication that I have when I circulated the draft judgment, I shall adjourn consideration of that application and of other matters arising out of this judgment and shall extend the time for making an application to the Court of Appeal for permission to appeal.”
THAT FINE LINE
An advocate is under a duty to correct any obvious mistakes but not to re-argue the case.
In Paulin -v- Cativo Limited [2009] EWCA Civ 221 where Wilson L.J observed:
“Where the reasons for his decision are allegedly inadequate, a party should generally invite him to consider whether to amplify them before complaining about their inadequacy in this court and he has an untrammelled jurisdiction to amplify them at any time prior to the sealing of his order: Re T (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, [2003] 1 FLR 531, per Arden LJ at [41], being a case in which the inadequate reasons were my own.”
Also in Altius Group (UK) Limited -v- Baker Tilly[2015] EWHC 12(Ch) His Honour Judge Keyser QC stated:-
“3) Two relevant matters may come into some degree of tension. On the one hand, the court will not wish to hand down a judgment if it has come to the view that the judgment would do injustice as between the parties. On the other hand, the point has repeatedly been emphasised that the practice of providing draft judgments is intended to facilitate the avoidance of errors of typography and detail; it is not intended to provide an opportunity for the parties to reargue points on which they have lost or to seek to adduce new evidence to bolster cases that can now be seen to have been inadequately supported at trial. (In this regard, cf. paragraphs 94 to 98 of Robinson v Fernsby.)”
THE GUIDANCE IN EGAN: ONLY IN THE MOST EXCEPTIONAL CIRCUMSTANCES
However anyone considering sending a note should consider the judgment of Lady Justice Smith in Egan -v- Motor Services (Bath) Ltd [2007] EWCA Civ 1002.
Addendum
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I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgment has been provided, to ask him to reconsider his conclusions. It is a growing practice and in my view it should happen only in exceptional circumstances.
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The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge’s eye. It is also to give the parties the opportunity to attempt to reach agreement on costs and to consider whether they wish to appeal. Consideration of such matters before hand down can save costs. Circulation of the draft is not intended to provide counsel with an opportunity to re-argue the issues in the case.
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Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance. Those circumstances might be, for example, where counsel feels that the judge had not given adequate reasons for some aspect of his/her decision. Then it may be appropriate to send a courteous note to the judge asking him/her to explain the reasons more fully. By way of further example, if the judge has decided the case on a point which was not properly argued or has relied on an authority which was not considered, the appropriate course will be to ask him/her either to reconvene for further argument or to receive written submissions from both sides. Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent.
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.