A DRAFT JUDGMENT IS NOT AN INVITATION FOR A SECOND BITE OF THE CHERRY: HIGH COURT JUDGMENT TODAY

In Shepherd & Co Solicitors v Brealey [2022] EWHC 3229 (KB) Mr Justice Cavanagh made some observations on the practice of making submissions once a judgment is sent out in draft.  This was not an invitation to the parties to re-open their case.  This is far from being the first missive on this issue.

“I respectfully wholeheartedly endorse the sentiments expressed by the Court of Appeal in Egan, and by the Court of Appeal in the earlier case of Robinson v Fernsby [2003] EWCA Civ 1820, in which the Court deprecated the practice of counsel taking the opportunity afforded by the invitation to draw the court’s attention to typographical and similar errors to make submissions on further arguments of substance. The very helpful and sensible practice of circulating the judgment in draft is not designed to give the losing side a chance to change the judge’s mind. If there are errors or weaknesses in the judge’s judgment, the remedy is to apply for permission to appeal.”

THE CASE

The judge heard a case relating to the ability of a solicitor, acting as executor, to charge for work done as an executor when there was no charging clause in the will.  A draft judgment was sent out dismissing the appeal. The appellant’s counsel filed lengthy submissions asking the court to reconsider various issues.

THE JUDGMENT ON THIS ISSUE
Events after the judgment was circulated in draft
    1. Before going further, I should refer to events that took place following circulation of my judgment in draft. In the normal way, I invited counsel to suggest corrections. Mr Cohen, counsel for the Defendant, responded by making further written submissions on three matters of substance. These written submissions from Mr Cohen, which included reply submissions in response to submissions filed by Mr Meehan, ran to some 17 pages in total and included detailed analysis of case-law authority. The Defendant’s further submissions addressed three issues:
(1) They sought to persuade me that I was wrong to find that Master Rowley had been right to find, for the purposes of Ground 3, that the court’s inherent jurisdiction to permit the recovery of the fees for the time spent by Mr Shepherd as executor should be exercised sparingly and in exceptional circumstances;
(2) They sought to persuade me that I was wrong to treat the appeal on Ground 3 as being an appeal against an evaluative judgment of a judge, rather than as an appeal on a point of law; and
(3) They sought to persuade me that I was wrong to regard Ground 4 as a new point which had been raised for the first time on appeal.
    1. Mr Cohen acknowledged that, as the Court of Appeal made clear in Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002[2008] 1 All ER 1156, attempts to reargue the issues in the case once the judgment has been circulated in draft were appropriate only in the most exceptional circumstances, for example, where counsel feels that the judge (i) had not given adequate reasons for some aspect of his decision, or (ii) had decided the case on a point which was not properly argued or has relied on an authority which was not considered. Mr Cohen submitted that these circumstances applied to the present case. In particular, he said that I had failed to deal with a judgment that had not been mentioned in his skeleton argument but upon which he had focused in his oral reply submissions, namely Perotti v Watson [2001] All ER (D) 73 (Jul); [2001] Lexis Citation 1695. He said that this case was authority for the proposition that the court’s inherent discretion to permit the recovery of a trustee’s fees, even if no provision had been made for them in the trust instrument, was a broad discretion, or at least was not one that should only be exercised sparingly and in exceptional circumstances.
    1. On behalf of the Claimant, Mr Meehan submitted that there were no exceptional circumstances that would make it appropriate for me to reconsider or redraft my judgment and went on to make submissions in the alternative as to why, if I was prepared to do so, the outcome should be the same.
    1. I respectfully wholeheartedly endorse the sentiments expressed by the Court of Appeal in Egan, and by the Court of Appeal in the earlier case of Robinson v Fernsby [2003] EWCA Civ 1820, in which the Court deprecated the practice of counsel taking the opportunity afforded by the invitation to draw the court’s attention to typographical and similar errors to make submissions on further arguments of substance. The very helpful and sensible practice of circulating the judgment in draft is not designed to give the losing side a chance to change the judge’s mind. If there are errors or weaknesses in the judge’s judgment, the remedy is to apply for permission to appeal.
    1. In my view, the third matter that has been raised by Mr Cohen is simply an attempt to reargue a point on which he has been unsuccessful. I have not therefore addressed it in any detail in this judgment, save to the extent that I have added an observation in parentheses at paragraph 4(5) above.
    1. As for the first and second matters, these are the ones to which Perotti v Watson relates. They are essentially different ways of making the same point, namely that the judge had erred in law in considering the exercise of the inherent jurisdiction, because he had approached it on the basis that it should be exercised only sparingly and in exceptional circumstances.
  1. As it happens, I had not overlooked this point, when preparing the first draft of this judgment. I had considered Perotti v Watson, but had come to the view that, notwithstanding what is said in that judgment, the judge in this case was right to take the view that the inherent jurisdiction should only be exercised sparingly and in exceptional circumstances. I originally took the view that it was not necessary specifically to deal with Perotti v Watson in my judgment. However, in light of Mr Cohen’s sustained submissions in reliance upon the case, and upon reconsideration, I accept that it is necessary to deal with the issue of the correct test to apply to the exercise of the inherent jurisdiction in greater detail than I had originally provided. I have, therefore, substantially revised and expanded the relevant section of my judgment, below, in order to address the issue in greater detail.