CIVIL PROCEDURE BACK TO BASICS 76: APPEALS – ASKING THE JUDGE FOR REASONS: “EMBARRASSMENT” IS NO EXCUSE NOT TO

The judgment in Fattahi v Charles Grosvenor Ltd [2019] EWHC 3497 (QB) also highlights the advisability of an appellant, arguing that a decision was not properly reasoned, to ask the original judge for further reasons.

“I have been unable to decide which of these two submissions was the less attractive. Each was competitively unappealing.”

THE DECISION IN ENGLISH -v- EMERY REIMBOLD

In English v Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605  the Court of Appeal considered the appropriate approach when an appeal was based on inadequate reasons by the original judge.  The opening lines of this judgment sets out the position.

  1.  Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 this Court allowed an appeal on the sole ground that the Judge had failed to give adequate reasons for his decision. This was despite the fact that his judgment was 29 pages in length. The trial had involved a stark conflict of expert evidence. The Judge had preferred the expert evidence of the defendants to that of the plaintiffs, without explaining why. This Court ordered a retrial.
  2. Flannery has inspired a large number of applications for permission to appeal on the ground of inadequate reasons. In granting permission to appeal in one of the appeals before us, Sedley LJ remarked that they were becoming a cottage industry. It is an industry which is an unwelcome feature of English justice. The rights of appeal that are afforded under statute reflect the fact that no Judge is infallible. It should, however, be possible to deduce from a judgment the reason for the Judge’s decision. Happily the rash of applications for permission to appeal based upon the decision in Flannery does not reflect a widespread inability or disinclination on the part of the judiciary to explain the basis for their decisions. Rather it reflects uncertainty on the part of litigants and Judges alike as the extent to which a judgment should detail the chain of reasoning which has led to the order made by the Judge.

THE SOLUTION: ASK THE JUDGE FOR REASONS

  1. In Flannery at p.383 the Court made two suggestions with a view to preventing unnecessary appeals on the ground of the absence of reasons. It suggested that one remedy open to the appeal court would be to remit the matter to the trial Judge with an invitation or requirement to give reasons. In Flannery this was not considered appropriate because more than a year had passed since the hearing. The delay between hearing and appeal will normally be too long to make a remission to the trial Judge for further reasons a desirable course. The same is not true of the position shortly after judgment has been given.
  2. The other suggestion made by the Court in Flannery was that the respondent to an application for permission to appeal on the ground of lack of reasons should consider inviting the Judge to give his reasons, and his explanation as to why they were not set out in the judgment, in an affidavit for use at the leave hearing and at the hearing if leave be granted.
  3. We are not greatly attracted by the suggestion that a Judge who has given inadequate reasons should be invited to have a second bite at the cherry. But we are much less attracted at the prospect of expensive appellate proceedings on the ground of lack of reasons. Where the Judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the Judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide that this course is viable, while an appeal followed by a re-hearing will involve a hideous waste of costs.
  4. 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. Where the appellate court is in doubt as to whether the reasons are adequate, it may be appropriate to direct that the application be adjourned to an oral hearing, on notice to the respondent.

THE APPROACH IN THE FATTAHI CASE

The appellant in the Fattahi case did not follow this approach.  The reasons for doing so did not find favour with Mr Justice Turner.

  1. Against this background, it is understandable that the Judge was succinct in the reasons which she gave for concluding that the Part 20 claim did not survive the operation of clause 7 of the contract. Had the Defendant considered that her reasons were inadequate then the proper course would have been to ask her to provide further reasons in accordance with the guidance set out in English v Emery Reimbold & Strick Ltd [2002] 1 WLR 2409. His advisors would have had plenty of time in which to do this because her judgment was circulated in draft form to all the parties more ten weeks before it was eventually handed down. When I challenged Mr Williams as to why this course had not been adopted he explained that it would have been embarrassing for him because such a request would have involved expressly or impliedly criticising the Judge’s conclusions. I note, however, that no such reticence was on display during the course of this appeal. Mr Leigh elaborated further saying that there was no point in asking judges to expand upon their reasons because they would invariably refuse. I have been unable to decide which of these two submissions was the less attractive. Each was competitively unappealing.