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 [2019] 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 CASE

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 [2002] 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 [2007] 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)
[2012] 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 [2009] 1 FLR 117 para
36-39. In Re M, Wall LJ (at [36]) 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.

28. Munby LJ went on to emphasise two points:
“16. First, it is the responsibility of the advocate, whether or not
invited to do so by the judge, to raise with the judge and draw
to his attention any material omission in the judgment, any
genuine query or ambiguity which arises on the judgment, and
any perceived lack of reasons or other perceived deficiency in
the judge’s reasoning process.
17. Second, and whether or not the advocates have raised the
point with the judge, where permission is sought from the trial
judge to appeal on the ground of lack of reasons, the judge
should consider whether his judgment is defective for lack of
reasons and, if he concludes that it is, he should set out to
remedy the defect by the provision of additional reasons.”
29. More recently in the important case of R (Mohamed) v Foreign Secretary (No 2)(CA)
[2010] 3 WLR 554 (Mohamed), Lord Judge CJ, when discussing draft judgments,
said:
“5. The primary purpose of this practice is to enable any
typographical or similar errors in the judgments to be notified
to the court. The circulation of the draft judgment in this way is
not intended to provide an opportunity to any party (and in
particular the unsuccessful party) to reopen or reargue the case,
or to repeat submissions made at the hearing, or to deploy fresh
ones. However on rare occasions, and in exceptional
circumstances, the court may properly be invited to reconsider
part of the terms of its draft… As we emphasise, an invitation
to go beyond the correction of typographical errors and the like,
is always exceptional, and when such a course is proposed it is
a fundamental requirement that the other party or parties should
immediately be informed, so as to enable them to make
objections to the proposal if there are any.”
30. Finally, in relation to contact with the judge regarding his or her draft judgment, in Re
C (Placement Order: Appeal) [2014] EWCA Civ 70, [2014] 2 FLR 1327, Macur LJ
deprecated in the strongest of terms (paragraph 11) the actions of Counsel for the
Local Authority in having sent an email direct to the District Judge in order to “clear
Judgment Approved by the court for handing down. I (CHILDREN)
misunderstandings” as to the thrust of her closing submissions which had apparently
not been accepted.
31. The Family Procedure Rules 2010 PD30A para 4.6, deals with “material omissions”
from a judgment of the lower court:
“4.6 Where a party’s advocate considers that there is a material
omission from a judgment of the lower court or, where the
decision is made by a lay justice or justices, the written reasons
for the decision of the lower court (including inadequate
reasoning for the lower court’s decision), the advocate should
before the drawing of the order give the lower court which
made the decision the opportunity of considering whether there
is an omission and should not immediately use the omissions as
grounds for an application to appeal.”
32. Paragraphs 4.7, 4.8 and 4.9 deal with the duty of the decision-making court and the
appellate court each to consider whether there is a material omission which can be
dealt with by way of additions to the judgment.
33. In my view, the exhortations as to the limitations on counsel in seeking amplification
of a draft judgment over and above correction of typographical and factual errors, is a
principle which applies equally to all areas of civil procedure, including family cases.
The Practice Note in Re A, saying in terms at [16] that it is the responsibility of the
advocate to raise with the judge “any material omission in the judgment, any genuine
query or ambiguity which arises on the judgment and any perceived lack of reasons or
other perceived deficiency in the judge’s reasoning process” is not, in my view,
inconsistent with Lord Judge’s observations in Mohamed.
34. The question, rather, is as to where one draws the line between a reasonable and
appropriate request for amplification of the type identified by Munby LJ in the
Practice Note, which request will properly be an example of the rare occasions where
it is appropriate to go beyond typographical and factual errors in order to clarify
issues in a judgment, as against a request which goes beyond the Practice Note and
seeks to reargue the case. Unhappily, to my knowledge, such requests can, on
occasion, be frankly confrontational and disrespectful in tone.
35. Judgments in care cases are often given by a judge under immense time pressure
whether extemporary or reserved. It is right that issues of the type identified in the
Practice Note should be raised with the judge if appropriate and, in so doing, avoid
the necessity of an appeal and therefore further delay for the child the subject of care
proceedings.
36. Mr Howling however confirmed the perception of this Court that requests for
extensive clarification, going well beyond the perimeters identified in the authorities,
have become commonplace in both children and financial remedy cases in the Family
Court. It has become, as we understand it, almost routine for a draft judgment to be
followed up with extensive requests for ‘clarification’ which in many cases can be
regarded as nothing other than an attempt to reargue the case or, as here, water down
the judge’s judgment; successfully in this case by the removal of the words “such as
an intemperate throw or a drop rather than a crudely inflicted injury” from the critical
paragraph 133.
37. With respect to Mr Howling, who has been helpful and pragmatic in all his
submissions, while the request for clarification submitted by him is by no means the
most excessive the Court has seen, it is, in my judgment, on the wrong side of the
line.
38. The family court is overwhelmed with care cases. Judges at all levels often move
seamlessly from one trial to the next without judgment writing time between them.
Routine requests for clarification running to a number of pages are not only ordinarily
inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit
the evidence and their judgment when their thoughts and concerns have long since
moved onto other cases. This is not conducive to the interests of justice.
39. That excessive demands for clarification are not limited to care cases is evidenced by
the observation by Mostyn J in WM v HM [2017] EWFD 25, when he said:
“39. Finally, I would observe that the demands by [Counsel] for
correction and amplification of the draft judgment went far
beyond what is permissible, and amounted to blatant attempts
to reargue points which I had already rejected. This practice is
becoming commonplace and should be stopped in its tracks in
the interests of efficiency and the conservation of the resources
of the court. Suggested corrections should be confined to
typographical or plain numerical errors, or to obvious mistakes
of fact. Requests for amplification should be strictly confined to
claimed “material omissions” within the terms of FPR PD 30A
para 4.6.”
40. Provided that the term “material omission” found in paragraph 4.6 is taken to embrace
the totality of the matters included in paragraph 16 of Munby LJ’s Practice Note, in
Re A, I would agree and endorse the observations of Mostyn J.
41. It is neither necessary nor appropriate for this court to seek to identify any bright line
or to provide guidelines as to the limits of the appropriate nature or extent of
clarification which may properly be sought in either children or financial remedy
cases. 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
and should only be made in accordance with the Practice Note which I repeat is: “to
raise with the judge and draw to his attention any material omission in the judgment,
any genuine query or ambiguity which arises on the judgment, and any perceived lack
of reasons or other perceived deficiency in the judge’s reasoning process