“BOILERPLATE” STATEMENTS OF THE LAW MUST BE TREATED WITH CIRCUMSPECTION: COURT OF APPEAL DECISION

In A (Children) (Pool of Perpetrators), Re [2022] EWCA Civ 1348 Lady Justice King set out a note of warning about cases where agreed notes of the relevant law are relied on.  It may be better for the law to be stated in the judgment itself.

THE CASE

The Court was hearing an appeal by a father against being named in a pool of perpetrators.   The appeal was allowed and the matter remitted.  The judgment set out a note of caution in relation to judgments that refer to agreed notes of the relevant law.

THE JUDGMENT ON THE USE OF “AGREED NOTES” OF THE LAW

    1. Attached to the judge’s judgment was a 26-page document entitled “Summary of the Applicable Law”. This was a document prepared by Mr Vine KC and his junior Mr Murray and agreed by the other parties. The judge referred to it as a “comprehensive analysis of the applicable legal principles” and attached the final agreed document to his judgment. This court was told that it is not an uncommon practice for counsel to submit an agreed note of the relevant law in this way, the intention being that the judge then, as here, adopts its contents in its entirety.
    1. Whilst I fully appreciate the value of such a document to a busy circuit judge, a measure of circumspection is in my view necessary in its use. First, a document which sets out lengthy citations from cases is unwieldy and may contain much which is unnecessary. Simply setting out any significant principle with a reference to the relevant part of the judgment in question will ordinarily be sufficient. Secondly, the judge in his or her judgment still needs to identify and apply the principles of law relevant to the issue, or issues, before him or her. A boiler-plate incorporation of the established law in the form of an attachment to a judgment does not, without analysis in the judgment, help the reader to understand whether, and if so how, the law was applied to the facts and circumstances of the case before the judge.
  1. Other than to incorporate Mr Vine’s document, the judge made no further reference to the law. On one level that may not be surprising where a specialist family judge, such as this judge, is dealing with a relatively straight forward finding of fact case where a brief reference to the burden and standard of proof may well be sufficient and I am not suggesting that such a judge should ‘reinvent the wheel’ in each judgment he or she writes. In this case, however, once the judge had, following his careful and thorough analysis of the medical evidence, made findings of inflicted injuries of various ages, the difficult issue of identifying the pool of perpetrators became central to the case