DRAFT JUDGMENTS “ARE NOT AN INVITATION TO TREAT”: COURT OF APPEAL SEEKS TO PUT AN END TO REQUEST THAT ARE “CONFRONTATIONAL AND DISRESPECTFUL”
In I Children  EWCA Civ 898 the Court of Appeal gave clear guidance to practitioners who write to the court seeking “clarification” of a written judgment. There are clear parameters and the parties should not use the draft judgment as the basis of further arguments. This was a family case, it is clear that similar principles apply to most (if not all) judgments.
“I would merely remind practitioners that receiving a judge’s draft judgment is not an “invitation to treat”, nor is it an opportunity to critique the judgment or to enter
into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings. Requests for clarification should not be routine”
The court was considering an appeal from a finding of fact hearing in a children’s case. One of the issues arising was the request for further information/clarification that had been made to the trial judge.
THE JUDGMENT ON THIS ISSUE
Lady Justice King gave the judgment.
25. The jurisprudence in relation to clarification of a judge’s judgment dates back to
English v Emery Reimbold and Strick Ltd  EWCA Civ 605. The Master of the
Rolls, Lord Phillips, said:
“25. Accordingly, we recommend the following course. If an
application for permission to appeal on the ground of lack of
reasons is made to the trial Judge, the Judge should consider
whether his judgment is defective for lack of reasons,
adjourning for that purpose should he find this necessary. If he
concludes that it is, he should set out to remedy the defect by
the provision of additional reasons refusing permission to
appeal on the basis that he has adopted that course. If he
concludes that he has given adequate reasons, he will no doubt
refuse permission to appeal. If an application for permission to
appeal on the ground of lack of reasons is made to the appellate
court and it appears to the appellate court that the application is
well founded, it should consider adjourning the application and
remitting the case to the trial Judge with an invitation to
provide additional reasons for his decision or, where
appropriate, his reasons for a specific finding or findings.”
26. Five years later, in Egan -v- Motor Services (Bath) Limited Note  EWCA Civ
1002, the Court of Appeal identified the parameters for such requests. In particular,
Smith LJ said:
“50. 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…Circulation of the draft is not intended to provide
counsel with an opportunity to re-argue the issues in the case.
51. Only in the most exceptional circumstances is it appropriate
to ask the judge to reconsider a point of substance… Letters
such as the one sent in this case, which sought to reopen the case
should not be sent.
27. Egan -v- Motor Services was in turn followed by a Practice Note relating to family
proceedings in Re A and another (Children) (Judgment: Adequacy of Reasoning)
 1 WLR 595 (“the Practice Note”). In the Practice Note, Munby LJ (as he then
was) set out, by reference to English v Emery Reimbold, the procedure to be adopted
in cases where there is a concern about the adequacy of the judge’s reasoning Munby
LJ emphasised that the practice set out in English v Emery Reimbold applies as much
to family cases as “ordinary, simple appeals”. He referred in particular to, what he
described as: “the robust observations” of Wall LJ In Re M  1 FLR 117 para
36-39. In Re M, Wall LJ (at ) had said that it was “high time the family bar woke
up” to English v Emery and the fact that it applies to family cases.