COMMENTING ON A DRAFT JUDGMENT – WHEN THE JUDGE HAS ASKED YOU TO: THE CIRCULATION OF A DRAFT JUDGMENT IS NOT THE END OF THE BEGINNING OF THE LITIGATION BUT THE BEGINNING OF THE END

There have been several cases over the years where judges have commented on the practice of parties attempting to rewrite draft judgments. In Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Ors [2022] EWHC 3275 (TCC) Mr Justice Pepperall considered this issue in the context of a specific judicial invitation being given.

“He submits that the circulation of a draft judgment is not the end of the beginning of the litigation, but rather the beginning of the end. He is right to contend that a very tight rein must be kept on further submissions after circulation of a draft judgment.”

THE CASE

The judge was giving judgment in a construction dispute.  The judgment was 856 paragraphs long and covered multiple issues. When the draft judgment was handed down the judge issued a specific invitation to the parties to consider any omissions.  Part of the final judgment dealt with the issues that followed that invitation.

THE JUDGMENT ON THIS ISSUE

THE PROCESS OF HANDING DOWN THIS JUDGMENT

8. This dispute is high value, complex and highly technical. The information before me is vast and the electronic bundle runs to 142,037 pages. Putting that in context, a paper copy of the bundle would fill 474 lever arch files. Of that material, the EPC contract and its schedules run to 7,259 pages. The Outotec subcontract is less complex at 564 pages but is just one of forty subcontracts. The contractual documentation also includes a further seventy-nine agreements, financing documents, variations, warranties and leases. The parties served statements from 28 witnesses that run to over 1,900 pages. They also rely on expert evidence from 25 different experts whose combined reports run to over 8,500 pages. I have my own manuscript notes as well as transcripts of twenty-two days of evidence and submissions. Finally, the parties provided me with 1,894 pages of written submissions together with rather more compressed oral submissions over four days.

9. I should like at the outset to express my admiration for the extraordinary grasp of the detail of this complex dispute so clearly displayed by all counsel and for their skill in ensuring that this case was tried pretty much within its original time estimate. I also pay tribute to the enormous assistance that they provided to me throughout the trial and through their detailed written submissions which are of the very highest quality. The parties understandably focused their limited time at trial on the issues on which the most money rides. That laser-like focus has, however, come at some cost in that in writing this judgment it became increasingly evident that there were important areas of the case where the parties mounted no or very little challenge to their opponents’ cases either through cross-examination or submissions. Further, while counsel rightly focused on the tens of millions of pounds, it is unfortunate that the parties were not able to take a commercial view on issues worth as little as £1,000. Even given these factors, this judgment has taken far longer to hand down than I would have wished. It is not for the want of application, and I apologise to the parties for the inconvenience caused to them by my delay.

10. While this judgment is of substantial length, it necessarily does not deal with all of the evidence or argument before the court. Rather its focus is on deciding the pleaded issues and upon explaining my reasons as economically as possible for the decisions that I have reached. I acknowledge that, in a case of this size, it is possible for a judge to overlook a piece of evidence or a submission. Even if I have not, a party that loses on an issue might be left uncertain as to whether a particular piece of evidence or argument that is not expressly referred to in this judgment has been taken into account. Given the enormity of the evidence and submissions in this case, I therefore took the unusual step of expressly inviting the parties to identify any material piece of evidence or argument that was already before the court but which they considered might have been overlooked in my draft judgment. It was of course necessary to give sufficient time for this exercise to be completed properly that also took into account the lawyers’ other commitments and their need to read back into the case. Accordingly, the handing down of this judgment has been delayed some weeks while this exercise has been completed.

11. Stephen Dennison KC and Jonathan Acton Davis KC, leading counsel for EWH and M+W respectively, welcome this approach. Adrian Williamson KC, leading counsel for Outotec, is, however, troubled. He submits that the circulation of a draft judgment is not the end of the beginning of the litigation, but rather the beginning of the end. He is right to contend that a very tight rein must be kept on further submissions after circulation of a draft judgment. In Egan v. Motor Services (Bath) Ltd (Note) [2007] EWCA Civ 1002, [2008] 1 WLR 1589, Smith LJ observed, at [49]-[51]:

“49.       I wish to add a few words to deprecate the practice which was adopted in this case of counsel writing to the judge, after a draft judgment has been provided, to ask him to reconsider his conclusions. It is a growing practice and in my view it should happen only in exceptional circumstances.

50. The purpose of the judge providing a draft of the judgment before hand-down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge’s eye. It is also to give the parties the opportunity to attempt to reach agreement on costs and to consider whether they wish to appeal. Consideration of such matters before hand-down can save costs. Circulation of the draft is not intended to provide counsel with an opportunity to reargue the issues in the case.

51. Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance. Those circumstances might be, for example, where counsel feels that the judge had not given adequate reasons for some aspect of his/her decision. Then it may be appropriate to send a courteous note to the judge asking him/her to explain the reasons more fully. By way of further example, if the judge has decided the case on a point which was not properly argued or has relied on an authority which was not considered, the appropriate course will be to ask him/her either to reconvene for further argument or to receive written submissions from both sides. Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent.”

12. Mr Williamson refers me to Gosvenor London Ltd v. Aygun Aluminium UK Ltd [2018] EWHC 227 (TCC), [2018] B.L.R. 353, at [46]-[51]. In Gosvenor, Fraser J circulated his draft judgment after a one-day hearing of an application for summary judgment. Circulation of the draft led to an application that the court should recall and reconsider its draft judgment. Fresh evidence was placed before the court and no doubt, if admitted, fresh submissions would have been heard upon the new evidence. In refusing to admit the new evidence and reconsider his judgment, Fraser J rightly said, at [52]:

“Very careful consideration must be given to such applications, and litigants should not be given the ability to have a second bite at the cherry. The distribution of a draft judgment under CPR Pt 40 should not be seen (as it seems to be, by many legal advisers currently) simply as an open invitation to embark upon an additional round of the litigation, remedying lacunae in their own evidence and raising further arguments. If a matter could have been raised at the first hearing, then it should be. If time is needed to deal with something, then the court must be asked for time – this will not always be given, but the matter must be dealt with then.”

13. I entirely agree with those observations. Fraser J was right that the opportunity to comment on a draft judgment is not generally the occasion to file further evidence or make fresh submissions. There are limited circumstances where the court will reopen the case and admit further evidence or argument. Citing Gosvenor is, however, to misunderstand the invitation that I extended to the parties in this case. My direction did not invite either new evidence or argument, but rather – in a very substantial case in which an enormous volume of material was presented in a compressed hearing – the identification of any evidence or argument that was already before the court but which one or other party believed I might have overlooked. That, in my judgment, is not to invite a second bite of the cherry but to remind me, lest it has been overlooked, of the finer details of the first bite.

14. In Spice Girls Ltd v. Aprilia World Service BV, The Times, 12 September 2000, a concession was made in the course of argument. Arden J, as she then was, circulated her draft judgment and, in the usual way, received lists of suggested typographical errors. The judgment was handed down and the judge then heard argument on consequential matters. Permission to appeal was sought on the basis that the judge had overlooked the concession. In reopening the matter and amending her findings of fact, Arden J said, at [9]:

“… it is clear that the court has jurisdiction to correct an error of material fact before the order is drawn (see for example Stewart v. Engel, The Times, 26 May 2000; Pittalis v. Sherefettin [1986] Q.B. 868; Charlesworth v. Relay Roads Ltd [2000] 1 WLR 230). It inevitably happens with complex cases that from time to time a fact which is material is overlooked. But the jurisdiction to correct an error is to be exercised cautiously and sparingly, and the question of review should be raised as promptly as possible. An application to the court to vary a finding of fact is not to be encouraged as it may lead to groundless applications. In this instance, as I have said, Mr Mill’s approach was not to apply to the court to review its finding of fact but rather to use it as a basis for seeking permission to appeal. In my judgment, an appeal is not the appropriate course where there are errors in judgments which can be corrected by the court which conducted the trial. To leave such matters to an appeal means further delay, uncertainty and costs, which is not in the interests of the litigants. The trial judge is in a strong position to consider the effect of the error in the context of the entire case.”

15. Again, I respectfully agree. No one is infallible, but in most cases a judge can be relatively confident that he or she is unlikely to have overlooked anything that might be material. As Arden J observed, in more complex cases the risk increases. Good practice where counsel believes that that might have happened is for the point to be drawn to the trial judge’s attention since it may be both difficult and inconvenient for any such error to be corrected on appeal. Difficult because the appeal court often defers to the findings of fact of a TCC judge in a highly technical dispute, and because – in order to do justice to any such ground of appeal – the appeal court might have to get to grips with a substantial volume of highly technical evidence. And inconvenient for the reasons identified by Arden J.

16. Further, in English v. Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409, Lord Phillips MR said, in the context of the connected matter of a perceived lack of reasoning in a judgment, at [25]:

“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.”

17. Properly understood, my direction was therefore no more than an express invitation to consider that which the parties should have been considering in any event coupled with the time to ensure that they could fairly be expected to raise any matters of concern in a case of this size. In the event, while I am grateful for the helpful suggestions made by all counsel, the only substantive amendment made as a result of this process is a modest change to the quantum of the contribution that would have been ordered in respect of defect 28 had such claim been properly notified. While I have not found it necessary to amend the text in order to deal expressly with each and every point raised with me after circulation of the draft judgment, I confirm that all matters raised have been carefully considered.