A DRAFT JUDGMENT IS NOT AN INVITATION TO TREAT: PARTIES SHOULD NOT ATTEMPT TO REOPEN THEIR CASE

In Michael Wilson & Partners Ltd v Sinclair & Anor (No. 2) [2020] EWHC 1017 (QB) Mr Justice Chamberlain added a postscript to the judgment about attempt to “re-open” draft judgments.

“Professional lawyers ought to know that the circulation of draft judgments for this purpose should not be taken as a pretext to reargue the case.”

THE CASE

The judge had decided an interlocutory appeal in relation to allow a detailed assessment of costs to proceed with conditions being imposed. A draft judgment was circulated.  The appellant then filed a lengthy set of submissions.

THE JUDGMENT

The judge then prepared a postscript to the judgment.
    1. This judgment, exactly as it appears above, was produced in draft in the usual way and sent, under embargo, to the parties for their editorial corrections. Professional lawyers ought to know that the circulation of draft judgments for this purpose should not be taken as a pretext to reargue the case. It has been said on many occasions that an invitation to go beyond typographical and other minor corrections and reconsider the substance should be made only in the most exceptional circumstances: see e.g. Egan v Motor Services (Bath) Ltd (Note) [2008] 1 WLR 1589, [49]-[51] (Smith LJ); R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No. 2) [2011] QB 218, [4] (Lord Judge CJ); In Re I (Children) [2019] 1 WLR 5822, [25]-[41]. As King LJ put in in the latter case, at [41], “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”.
    2. Nonetheless, on the day before judgment was to be handed down, I received a document entitled “Appellant’s Note”, carrying the names of both Joshua Munro, MWP’s barrister, and MWP itself. The main purpose of the “Appellant’s Note” was not to identify editorial corrections (there was only one, which I consider below), but rather to invite me to re-open the appeal, because the draft judgment “ignores and fails to follow the previous directly relevant judgments of the English (and New Zealand, recognised in England) courts in the period 2014-2018”. Those judgments are said to give rise to issue estoppels in MWP’s favour. There then follows a long and tendentious summary of the highlights of the litigation, so far as MWP is concerned. At §17 of the Appellant’s Note, it is said that “MWP proved, and even Mr Emmott was forced to admit that… only £2m and US$1m remains due” from MWP to Mr Emmott. The word “only” is included because MWP says that the Respondents have been overstating the amounts due to Mr Emmott by virtue of unsatisfied judgments against him. But the Appellant’s Note makes plain that MWP accepts that there are very significant sums which it has been ordered to pay to Mr Emmott and which it has not paid. This is what occasioned the comments of Gross LJ cited at [5(d)] above.
    3. The burden of the Appellant’s Note is to suggest that the criticisms made of MWP by the Court of Appeal, set out at [5] above, were “wrong”, because the total judgment debts for which Mr Emmott is jointly and severally liable to MWP exceed the total of MWP’s indebtedness to Mr Emmott; and that the position as between MWP and Mr Emmott is irrelevant when considering the position as between MWP and Mr Sinclair/Sokol. The author or authors also thought it appropriate to suggest that Peter Jackson LJ’s criticisms, set out at [5(e)] above, should be discounted because of his lack of expertise in this area.
    4. I can deal with these points briefly:
(a) The Appellant’s note reveals a misunderstanding of the nature of the issue before me. The issue before me is whether the setting aside of the default costs certificate should have been made, or should now be made, conditional on the payment by Mr Sinclair/Sokol of judgment debts owed to MWP. It is MWP which seeks the imposition of that condition and, in support of it, invites me to consider fairness and the conduct of the parties.
(b) The point made at [8] above was simply that the imposition of the condition sought by MWP would require me to look to the wider history of these proceedings, including those between MWP and Mr Emmott. Nothing in any of the judgments cited to me suggests that this is a wrong approach to the issue now before me – viz. the exercise of the court’s discretion to impose conditions on the setting aside of a default costs certificate.
(c) What I said at [9] above flows from the passages I have quoted from the judgments of Gross and Peter Jackson LJJ in the Court of Appeal. Even if it were open to me to reach a different conclusion, embarking on the kind of analysis necessary to do so would – as I made clear in [10] above – involve a wholly disproportionate deployment of judicial resources. One of the reasons why the exercise would take so long is that, as Gross LJ observed in the passage quoted at [5(b)] above, Mr Wilson is an unreliable historian of this litigation, so it would be necessary to consider a very large number of reported and unreported judgments. There may be some kinds of proceedings in which such an exercise would be unavoidable. The present (an appeal against a decision to grant relief from sanctions in a costs assessment) is not one. As Peter Jackson LJ said, it is unfair to other litigants to spend such a disproportionate amount of judicial time on one dispute. I continue to regard his observations as pertinent to the question before me and I have applied them.
  1. The one editorial correction sought by MWP was that Mr Emmott should be added as a party on the title page. He was a party to the underlying proceedings in which the costs being assessed here were incurred. He was not, however, party to the assessment proceedings or appeal, so was not included on the title page of my first judgment (which was circulated in draft). His name will not, therefore, be added to the title page of this judgment.
  2. The appeal will not be re-opened. It will be dismissed.