STOP ARGUING WITH THE JUDGE AFTER JUDGMENT IS GIVEN: POST-JUDGMENT SUBMISSIONS LEADS TO CASE GOING OFF THE RAILS

The judgment today in AR & ML [2019] EWFC 56 is of considerable importance to all those who seek to “re-argue” a case after judgment rather than appeal.  Mostyn J attempts to put an end to what he identified as an age old problem.

 

“It was merely another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment has been delivered, to which the judge should not have succumbed. This syndrome is seemingly ineradicable. Francis Bacon condemned it long ago  …  where he wrote in the 56th of the 58 essays: “let not counsel at the bar… wind himself into the handling of the cause anew after the judge hath declared his sentence””

THE CASE

At the end of a hearing   in relation to financial relief a Deputy District Judge gave judgment and then agreed to a submission from one party that there should be a rehearing of an issue and for fresh evidence to be adduced. The order made was.

 

“Upon hearing closing submissions from counsel for each party and the court delivering its judgment which has yet to be perfected into an order.

And upon the applicant [wife], after the delivery of judgment making an oral application (i) for permission to introduce further evidence relating to housing needs, namely further property particulars; and (ii) for an adjournment of this final hearing to a future date; and (iii) for the judgment delivered today not to be perfected into a final order, and the respondent opposing the applications

And upon the court delivering an oral judgment in relation to the above applications

IT IS ORDERED THAT

1. This case shall be adjourned to 3 May 2019… for finalising judgment and reconsideration of suitable housing fund for the applicant and the child of the family. …

2. Permission to the applicant to file and serve by 4 PM on 15 April 2019 a concise statement as to her position on suitable housing together with property particulars in support (limited to 5).

3. Permission to the respondent, if so advised, to file and serve by 4 PM on 25 April 2019 a concise statement in reply and adduce property particulars (limited to 5) …”

THE APPEAL

The husband appealed. That appeal was allowed. Mostyn J held that the proper course of action was for the court to make the order set out in the judgment and then for the aggrieved party to appeal.

    1. However, following judgment it appears that this case went off the rails.
    2. I have a transcript running to 44 pages of the discussions following judgment. Initially, Ms Sharghy intimated that there would be an appeal and, in such circumstances, she wished to adhere to PD 30A para 4.6 by seeking clarification of the wife’s housing needs in terms of area and cost. This led the judge to say (at page 2 of the transcript):

“You can also make a note that in fact the £370,000 property which the husband before we meet the needs of the wife and M in terms of size of the accommodation, where it is to the school, where it is to the Academy but I have accepted what she said about each specific property and therefore doing the best I can I have awarded her a slightly larger figure so that she would be able to find something which is “better” than the husband has put forward.”

    1. As the exchanges continued the impromptu application made by Ms Sharghy segued into an application under re L. Thus, by page 11 of the transcript she was asking:

“I do ask the court to consider a short adjournment for consideration of any property particulars in Crouch End that would meet the wife’s proposal as they stand and for you to reconsider this needs argument and the disparity of the parties. That would be – that would assist you in making a safe and fair decision, it has huge consequences not just for my client but for M”

    1. So, by page 18 of the transcript Ms Sharghy is recorded as saying, if the matter were to be adjourned for a few weeks:

“You will have from each party five property particulars of available properties in Crouch End commensurate with either your proposed judgment figure of £410,000, or indeed in East Barnet, the husband wants to propose, and on the figures that the wife proposes of £525,000. Those would be the property figures the parties will have, then you will evidence as to both types of housing and determine which one is suitable and the reasons for that … it would be an update to your extempore judgment delivered this afternoon, it won’t be a rehearsal of it, it would be the figures stated in your judgment today would be revised to X amount to the wife on the basis that the court having seen the evidence, this is the assessed needs, whether you confirm or change the figure depending on the evidence, that’s what we propose, it is not necessary and there is not much the parties would say because all the arguments have been rehearsed in terms of location, logistics and fairness”

    • The exchanges went on for a further eight pages. Eventually the judge gave her second judgment, from which I quote this passage:

“On balance I am just persuaded that I should allow the wife the opportunity to put before me evidence which should have been before me before now but that has to be on the basis that both parties are able to question the other party as to what they are saying and to make further submissions which will not only be about whether or not the wife can rehouse in Crouch End for a figure of less than £575,000 but also depending upon – if there is a lower figure for the housing in Crouch End, whether or not I were to accede to the wife’s request for that sum of money, it would produce a fair outcome, because that is also what I have to look at. So the decision I make on this is that I am not going to seal the decision which I have made today and in fact will not say that that is now my final decision and I will allow further evidence, submissions on this matter which I agree with Mr Richardson has really been the crux of the matter for a very long period of time, but sympathetic as I am to the husband and I well understand what we now think is ostensibly more than frustration apart from anything else, I do have an overwhelming duty to do justice and in this case that means looking at this wife, this husband and this child”

  1. And so, the judge made her decision which is recorded in the terms of her order which I have set out above.
  2. I have to say, with all due respect, that the judge’s decision was not based on the correct legal principles as set out above and, inasmuch as it was an exercise of “discretion”, was plainly wrong. There was no good reason shown why the judge should depart from the terms of her judgment. There was no reference to the principle of finality. There was no reference to the concept of due diligence. It was merely another example of counsel on behalf of a disappointed litigant seeking spuriously to try to get the judge to change her mind immediately after judgment has been delivered, to which the judge should not have succumbed. This syndrome is seemingly ineradicable. Francis Bacon condemned it long ago (Essayes or Counsels, Civill and Morall: Of Judicature, 1625) where he wrote in the 56th of the 58 essays: “let not counsel at the bar… wind himself into the handling of the cause anew after the judge hath declared his sentence”. In Re C (A Child) [2014] 2 FLR1327 Aikens LJ at [36] condemned as “quite unjustified and inappropriate” an attempt by counsel to get the judge to change his judgment and order after he had delivered his judgment.
  3. Therefore, I grant permission to appeal and allow the appeal. The order of 8 April 2019 will be set aside. I direct that Deputy District Judge Brenda Morris do now make an order that incorporates and reflects the terms of her original judgment. Although the 21 day time limit for the wife to appeal strictly speaking began upon the delivery of the original judgment on 8 April 2019 (see FPR 30.4(2)(b)), it would, in my judgment, be unjust to treat the wife as being out of time in circumstances where the judge plainly did not intend her original judgment to be treated as final and never incorporated it into an order. Therefore, the 21-day appeal period will commence on the date that this judgment of mine is handed down, 27 September 2019. In fairness, Mr Richardson on behalf of the husband did not seek to argue otherwise.