WHEN FACT FINDING GOES WRONG: APPEALS TO THE COURT OF APPEAL WHEN THERE ARE DELAYS BY THE JUDGE

April 12, 2018 · by · in Appeals, Civil evidence, Civil Procedure

I am going to leave it to the family law bloggers to analyse all the implications of the judgment in P (A Child), Re [2018] EWCA Civ 720. It involves all parties in a case agreeing that the fact finding process at trial went awry.  Here I look at some observations of general  interest to civil lawyers.  In particular what to do when there is delay in getting an approved judgment.

(The Court of Appeal emphasises the need for advocates to take a careful note of the judgment, in case similar circumstance arise.  In fact this case shows the need for the courts to allow parties to take their own recordings of judgments  delivered orally.  This would be a sensible amendment to the rules. With modern technology this could be done without any disruption to the court.)

 

“For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.”

(PAUSING THERE …

I can’t let the judgment pass without mentioning the Court of Appeal’s observations about the team of  lawyers representing the child in the case going above and beyond the call of duty.

“Despite these difficult circumstances, T’s interests were well served by her legal team, often in their own time and without any hope of remuneration, visiting her regularly in the secure unit to ensure that she understood the process and was able to communicate her views to them.”

(In fact all the advocates in this case come out well).)

THE CASE

After a hearing the judge made findings of sexual abuse.  However the reasons for that findings were not clear to the parties (nor, as it happened to the Court of Appeal).  The parties sought clarification and also appealed. There was considerable delay in the judge providing clarification (in fact it was not provided until after the appeal was heard).

ASKING A JUDGE FOR CLARIFICATION

  1. On 30 January, when the Judge had concluded her judgment, counsel for the father immediately identified a number of aspects in which, it was submitted, the judgment was deficient. The Judge directed that an agreed note of what she had said should be prepared and submitted to her within 7 days, together with requests from each party identifying any suggested corrections or requests for clarification.
  2. The parties, in particular those acting for the parents, complied with the tight 7-day timetable. The Judge was provided with an agreed note of judgment which runs to some 115 paragraphs covering 42 pages. In addition, counsel submitted an annotated version of the note indicating possible corrections, together with a list of more substantial matters which, it was claimed, required clarification. In doing so those acting for each of the parties were complying precisely with the process originally described by this court in the case of English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605and subsequently endorsed in the family law context by this court on many occasions.

THE LATE APPEAL

The Court of Appeal considered the problems caused by a delay in the judge responding (in fact the judge’s response did not arrive until after the appeal),

    1. arch 2017. Unfortunately, despite a number of requests, initially by the parties and, latterly, from one of the Masters of the Court of Appeal a final version of the judgment approved by the Judge had not been provided to the parties or to the Court of Appeal prior to the appeal hearing in March 2018. Neither did this court have any response from the Judge to the requests for clarification of the oral judgment that have been made by the parties. As a result, at the appeal hearing, the oral judgment given on 30 January 2017 was taken as the most definitive account of the Judge’s determination of the actual allegations.
    2. In the course of informing the President of the Family Division, and through him, Parker J of the outcome of the appeal, which was to set aside the findings of fact that had been made, Parker J provided an approved version of the 30th January 2017 judgment [‘the approved version’] together with an email trail showing that the Judge’s temporary clerk had sent the approved version to an email address at the transcribing company on 27th September 2017. The approved version, in addition to tidying up part of the order in which topics were considered and accepting a number of suggested corrections, includes an addendum running to 18 pages and 60 paragraphs in which the Judge sets out her response to the requests for clarification that had been made by the father and mother.
    3. It does not seem that the approved version was sent to any of the parties or to the Court of Appeal Master by the transcribers, the Judge or her clerk. The approved version was not formally handed down by the Judge and, indeed, it is not referred to (save obliquely in an email on 3rd November from the Judge’s clerk to all the parties) in any communication that we have seen. Given the string of requests over the course of over six months that had been made by the parties and by the Court of Appeal for the Judge’s detailed response, the failure to distribute the approved version, or even alert those concerned to the fact that it had been sent to the transcribers, is surprising.
    4. Once the existence of the approved version became known to this court, we circulated copies to the parties and invited any further submissions, having given the preliminary indication that the court was not minded to alter the orders that had been agreed between the parties and endorsed by the court at the appeal hearing. Each of the parties responded that they did not wish to make any further submissions. Save for some brief further observations at the conclusion of this judgment, what follows is an evaluation of the material before this court as it was at the time of the oral appeal hearing, that is with the Judge’s final word being recorded in the note of the oral judgment given on 30th January, and without reference to the approved version which has subsequently become available.
…
The appeal
  1. Two notices of appeal issued on behalf of the father and mother respectively were issued in August 2017. Although this was many months after the making of the care order and the delivery of the oral judgment in January 2017, I accept that the delay arose because the parties were waiting for the Judge to engage in the process of clarification that she had directed should take place and, thereafter, the production of a final version of the judgment. There were also considerable difficulties in securing legal aid, caused at least in part by the absence of a judgment. At various stages the Judge’s clerk had given the parties some hope that a final judgment might be produced. The notices of appeal were only issued once the parties were forced to conclude that a final version of the judgment was unlikely to be forthcoming. Following the failure of the efforts made by the Court of Appeal to obtain a judgment, I granted permission to appeal on 16 November 2017.
  2. The grounds of appeal and skeleton arguments that argue the cases of the father and of the mother from their respective positions engage fully with the underlying facts in the case in addition to arguing that the process as a whole has been fatally compromised by the court’s inability to produce adequately precise findings and to do so in a judgment which sufficiently engages with the significant features of the evidence. As it is on this latter basis that the appeal has preceded by consent, my Lords and I have not engaged in the deeper level, granular analysis of the evidence that would otherwise be required.
  3. In terms of the English v Emery Rheimbold process, those acting for each of the two parents submitted short (in the mother’s case 3 pages, in the father’s case 5 pages) requests for clarification on specific issues. Each of those requests is, on my reading of the papers, reasonable and, even if a specific request were unreasonable, it was open to the Judge to say so.
  4. The resulting state of affairs where the only record of the Judge’s determination is imprecise as to its specific findings and silent upon the approach taken to significant elements of the evidence is as regrettable as it is untenable.
  5. That the state of affairs that I have just described exists, is made plain by the stance of the local authority before this court. Rather than simply “not opposing” the appeal, the local authority skeleton argument, as I will demonstrate, specifically endorses the main thrust of the appellant’s case. Further, we were told by Miss Hannah Markham QC, leading counsel before this court, but who did not appear below, that the local authority’s position on the appeal has been approved at every layer of management within the authority’s children services department. For one organ of the state, the local authority, to conclude that the positive outcome (in terms of the findings that it sought) of a highly expensive, time and resource consuming, judicial process is insupportable is a clear indication that the judicial system has, regrettably, failed badly in the present case.

GENERAL GUIDANCE FOR THE FUTURE

The Court of Appeal set out some general guidance for cases where there was a delay in obtaining a definitive judgment.

Guidance
  1. Whilst it is, fortunately, rare for parties to encounter a situation such as that which has arisen in the present case, such circumstances do, however, occur and we have been invited to offer some limited advice or guidance.
  2. The window in which a notice of appeal may be issued under Civil Procedure Rules 1998, r 52.12(2) is tight and is, in ordinary circumstances, limited to 21 days. It is often impossible to obtain a transcript of a judgment that has been delivered orally within the 21 day period. Unfortunately, it is also the experience of this court that not infrequently problems occur in the five or six stages in the administrative chain through which a request for transcripts must proceed and it may often be months before an approved transcript is provided. Whilst it is plainly more satisfactory for the judges of this court to work on an approved transcript, and that will normally be a pre-requisite for any full appeal hearing, the Lord or Lady Justices of Appeal undertaking evaluation of permissions to appeal in family cases are now more willing to accept a note of judgment (if possible agreed) taken by a lawyer or lawyers present in court in order to determine an application for permission to appeal rather than await delivery of an approved transcript of the judgment. It is therefore important for advocates attending court on an occasion when judgment is given to do their best to make a full note of the judgment so that, if it is needed, that note can be provided promptly to the Court of Appeal when a notice of appeal is filed.
  3. The observation set out above requires adaptation when a party seeks clarification of the Judge’s judgment. In such a case, it must be reasonable for the party to await the conclusion of the process of clarification before being obliged to issue a notice of appeal, unless the clarification that is sought is limited to marginal issues which stand separately to the substantive grounds of appeal that may be relied upon.
  4. Where, as here, the process of clarification fails to achieve finality within a reasonable time, it is not in the interests of justice, let alone those of the respective parties, for time to run on without a notice of appeal being issued. What is a reasonable time for the process of post judgement clarification? The answer to that question may vary from case to case, but, for my part, I find it hard to contemplate a case where a period of more than 4 weeks from the delivery of the request for clarification could be justified. After that time, the notice of appeal, if an appeal is to be pursued, should be issued. The issue of a notice of appeal does not, of itself, prevent the process of clarification continuing if it has not otherwise been completed. Indeed, in some case the Court of Appeal at the final appeal hearing may itself send the case back to the Judge for clarification. The benefit of issuing a notice of appeal, apart from the obvious avoidance of further delay, is that the Court of Appeal may itself directly engage with the Judge in the hope of finalising any further outstanding matters.”
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