ASKING QUESTIONS AFTER JUDGMENT: NOT TO BE USED IN AN ATTEMPT TO RE-OPEN THE CASE (OR ARGUE A DIFFERENT CASE ON DIFFERENT GROUNDS)

I am looking again at the decision in  O v B-M [2019] EWFC B23. That case predates the more recent Court of Appeal judgment in  Children [2019] EWCA Civ 898. However it is another example of a party attempting to use the process of checking a draft document in an attempt to re-open the case.

 

THE CASE

The judge decided that a marriage ceremony in Ghana was not sufficient to establish a valid marriage in English law.  The draft judgment had been circulated.  The unsuccessful party changed solicitors and embarked on a major effort to change the result.

THE ADDENDUM TO THE JUDGMENT

    1. I circulated this judgment in draft on 23rd January 2019. I asked for editorial corrections/suggested amendments by 30th January 2019. Thereafter:
a) receipt of the draft judgment was acknowledged by Mr. Thornton on 23rd January 2019 and by Mr. Harley on 24th January 2019;
b) on 30th January 2019 I received an email from R’s solicitors with two suggested editorial corrections (both of which I have incorporated into the final judgment) and written submissions in support of an order for costs;
c) on 30th January 2019 Mr. Harley sought an extension of time for his submissions to 4th February 2019 which I granted. On 4thFebruary 2019 he sought a further extension to 7th February 2019 which again I granted;
d) on 7th February 2019 I received an email from Mr. Harley saying that having drafted submissions in response he had been informed that P now had new solicitors and that he had been instructed by his solicitors, Bindmans LLP, not to submit his submissions to me or to provide them to P’s new solicitors, Winckworth Sherwood LLP. Mr. Harley subsequently confirmed that he had no editorial corrections to suggest in relation to the draft judgment other than the two suggested on R’s behalf;
e) I subsequently on the same date received an email from Winckworth Sherwood LLP enclosing both a Notice of Change of Solicitor and a 22-page “Request for clarification and further reasons” and which, inter alia, asked that I extend the time limit for costs submissions and for permission to appeal;
f) I subsequently on the same date received an email from Bindmans LLP providing me with P’s submissions on costs;
g) on 8th February 2019 (i) I extended time for permission to appeal to 21 days after I had made a final decision (whether this was by finalising the draft judgment, providing an addendum judgment, or otherwise); (ii) I asked R’s solicitors to respond to P’s solicitors suggested “Next Steps” set out at paragraphs 31 – 33 of their request by 15th February 2019 after which I said I would decide on the appropriate way forward; and (iii) after receiving clarification from P’s new solicitors that they requested that I do so, I stayed any consideration of the issue of costs until I had made a final decision (as defined by me) and I said that I would determine what (if any) further opportunity I should give the parties to make further submissions on costs as part of that decision; and
h) on 15th February 2019 I received a letter by email from R’s solicitors with their response to the suggested “Next Steps”.
    1. I have considered the request made on P’s behalf and R’s response thereto carefully. Having done so my conclusions are as follows:
a) the request is not one for corrections and amplification. I am fortified in this view by WM v HM (Financial Remedies: Sharing Principle: Special Contribution) [2018] 1 FLR 313, FD where at [39] Mostyn J made some robust observations about requests for corrections and amplification and stated that it was improper for them to extend to attempts to reargue points which a tribunal has already rejected. He stated that suggested corrections should be confined to typographical or plain numerical errors or to obvious mistakes of fact, and requests for amplification should be strictly confined to claimed “material omissions” within the terms of FPR 2010 PD 30A para 4.6. P’s requests clearly go far beyond typographical/numerical errors and I do not consider that “material omissions” extends to points which were not argued (but which could have been argued) prior to judgment but relates to a judicial failure to deal with points which were;
b) the request is a mix of grounds of appeal and an invitation that I exercise of the Barrell jurisdiction;
c) I do not consider that the request is an appropriate exercise of the Barrell jurisdiction. In the family law context (and specifically in relation to care proceedings) the Barrell jurisdiction (named after Re Barrell Enterprises [1973] 1 WLR 19) was most recently considered by the Supreme Court in Re L-B (Reversal of Judgment) [2013] 2 FLR 859, SC. The Supreme Court held that a judge’s power to recall and reconsider his or her judgment is not restricted to ‘exceptional circumstances’ and that the question of whether a judge should exercise the discretion to recall a judgment will depend on all the circumstances. Baroness Hale of Richmond who gave the lead judgment said at [27] that “[the judge’s] overriding objective must be to deal with the case justly … a carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances”. Further, under the heading “A concluding comment” she said at [46] that “judicial tergiversation is not to be encouraged. On the other hand, it takes courage and intellectual honesty to admit one’s mistakes”;
d) I do not consider that in the circumstances it would be appropriate for me to exercise the power. The case was argued before me in a particular way and I have not changed my mind as to the conclusions I have reached based thereon. As the request states at paragraph 2 I am being invited (i) to reconsider some aspects of my judgment under the Barrell jurisdiction as “we believe you have been misdirected as to certain aspects of the relevant law, in particular as to the question of the validity of the marriage under Ghanaian law which in turns affects validity under English law”; and (ii) to provide clarification and further reasons where the judgment is deficient “most likely through no fault of the court and because the parties had not expressly invited you to go further than determining [P’s] application for a declaration that the marriage is valid”;
e) in essence I am being asked on P’s behalf to determine the case on a wholly different legal basis, answer different questions (relying on different authorities), and potentially grant different relief.[3] Whilst I accept that in In re Blenheim Leisure (Restaurants) Ltd (No 3), The Times, 9 November 1999 Neuberger J (as he then was) gave as one of his examples as to when a judge might revisit his or her decision “the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law”, I do not consider that this envisages a wholesale rearguing of the case on a different basis after judgment in an attempt to persuade the judge to change his or her mind; and
f) I therefore do not consider that I should accede to the “next steps” as sought by P’s new solicitors at paragraphs 31 – 33 of their request namely (i) R’s legal team to respond to P’s request within 14 days, P’s legal team to file a further response, if so advised, within 7 days thereafter, and judgment and/or an addendum judgment handed down thereafter; or (ii) the listing of a half-day hearing at which hearing further directions will be agreed or determined by the court as to how best to deal with the issues raised in the request; and (iii) consideration given to directing that the SJE be asked to advise on how consent is determined under Ghanaian law. I shall finalise my judgment now.