WHAT HAPPENS WHEN THE JUDGMENT WAS NOT RECORDED? APPEAL PROCEEDS BY WAY OF A REHEARING
There are interesting issues considered in the judgment of Mr Recorder Adrian Jack in AS v AB [2024] EWFC 24. A party was appealing. The recording (and backup recording) failed to record the judge’s judgment and there was no agreed note. Consequently it was ordered that an appeal proceed by way of a total rehearing.
” It does not create a duty on a represented party to prepare a note. Making a full note of a judgment is onerous. In my judgment it is a matter for counsel how full a note they should make of a judgment. It is only in cases where they know no recording will be made of a judgment that an exception should be made, so that counsel are under a duty to make a full note.”
THE CASE
A husband was appealing an order made which excluded him from the family home. An order was made that the transcript be obtained. However the judge was inaudible on the recording.
THE JUDGMENT ON THIS ISSUE
- “The husband sought to appeal and Her Honour Judge Suk gave directions for him to obtain a transcript of the judgment of the learned district judge. It seems that, because the hearing was heard remotely, the district judge was inaudible on the recording. The Court has a backup recording, but this too was inaudible. The unavailability of any recording was only finally determined on 17th January 2024. Since then investigations have been made as to whether any full note of the judgment was made. It transpires that Ms Bassiri-Dezfouli made a useable note. Despite efforts by the wife’s counsel and messages sent to her chambers and indeed via her head of chambers, it has not been possible to ascertain whether Ms McIntosh took a full note of evidence. I proceed on the basis that she did not. So far as the judge is concerned, it is not reasonable to expect a judge, nearly four months after delivering an extempore judgment, to recall precisely what she said without assistance from a contemporaneous note taken by the parties’ representatives.
- FPR PD 30A provides:
“5.23 Where the judgment appealed has been officially recorded by the court, an approved transcript of that record should accompany the appellant’s notice…
Note of judgment – When judgment was not officially recorded or made in writing a note of the judgment (agreed between the appellant’s and respondent’s advocates) should be submitted for approval to the judge whose decision is being appealed. If the parties cannot agree on a single note of the judgment, both versions should be provided to that judge with an explanatory letter. For the purpose of an application for permission to appeal the note need not be approved by the respondent or the lower court judge…
5.25 Advocates’ brief (or, where appropriate, refresher) fee includes –
(a) remuneration for taking a note of the judgment of the court;
(b) having the note transcribed accurately;
(c) attempting to agree the note with the other side if represented;
(d) submitting the note to the judge for approval where appropriate;
(e) revising it if so requested by the judge,
(f) providing any copies required for the appeal court, instructing solicitors and lay client; and
(g) providing a copy of the note to an unrepresented appellant.”
- In the past, when Court proceedings were not audio-recorded, it was well understood to be the duty of counsel to take a full note of an extempore judgment. With the advent of audio-recording, however, I have not found any reference in the Bar Code of Conduct to counsel having such a duty in cases where an audio-recording is normally made. Para 5.25 could be read as putting such a duty on counsel, but an alternative reading is that, in cases where there is no audio-recording, counsel cannot charge separately for a preparing a full note of the judgment.
- CPR rule 39.9(5) provides:
“At any hearing, whether in public or in private, the judge may give appropriate directions to assist a party, in particular one who is or has been or may become unrepresented, for the compilation and sharing of any note or other informal record of the proceedings made by another party or by the court.
- This, however, provides for the sharing of such a note as has been made. It does not create a duty on a represented party to prepare a note. Making a full note of a judgment is onerous. In my judgment it is a matter for counsel how full a note they should make of a judgment. It is only in cases where they know no recording will be made of a judgment that an exception should be made, so that counsel are under a duty to make a full note.
- The significance of this is that no blame can in my judgment be attached to the husband’s counsel’s failure to make a full note of the judgment of District Judge Sawatz. Accordingly, the failure to be able to provide a note of the judgment should not be laid at the door of the husband.”
THE RESULT
“18. It is arguable in my judgment that the learned district judge erred in the way in which she exercised her discretion by failing to take these matters into account and that the question as to whether it is proportionate to make the husband homeless stands to be reconsidered. It follows that the appeal has a realistic prospect of success. Accordingly I grant permission to appeal.
19. This leads to the question whether permission should be granted generally and what approach should be taken on the appeal to the evidential lacunae which result from the unavailability of a transcript of the judgment at first instance. FPR rule 30.12 provides:
“(1) Every appeal will be limited to a review of the decision of the lower court unless –
(a) an enactment or practice direction makes different provision for a particular category of appeal; or
(b) the court considers that in the circumstances of an individual appeal it would be in the interests of justice to hold a re-hearing.
(2) Unless it orders otherwise, the appeal court will not receive –
(a) oral evidence; or
(b) evidence which was not before the lower court.
(3) The appeal court will allow an appeal where the decision of the lower court was –
(a) wrong; or
(b) unjust because of a serious procedural or other irregularity in the proceedings in the lower court.
(4) The appeal court may draw any inference of fact which it considers justified on the evidence.
(5) At the hearing of the appeal a party may not rely on a matter not contained in that party’s appeal notice unless the appeal court gives permission.”
20. No transcript of the judgment is available. Nor (in the light of the recording difficulties) is any transcript of the evidence heard by the learned district judge likely to be available. In these circumstances, this is in my judgment one of those rare cases where under FPR rule 30.12(1)(b) it is in the interests of justice for the appeal court to hold a rehearing. (See Audergon v La Baguette Ltd [2002] EWCA Civ 10, [2002] CP Rep 27, cited in Civil Procedure 2023 at para 52.21.1 the relevant principles.) The extent to which any oral evidence stands to be given under FPR rule 30.12(2)(a) or updating evidence under FPR rule 30.12(2)(b) is a matter for the judge hearing the appeal, but the parties should make themselves available to give oral evidence if the Court so orders.
21. Accordingly, I grant permission to appeal, the appeal to be held as a rehearing pursuant to FPR rule 30.12(1)(b). The extent to which oral or fresh evidence is adduced is a matter for the judge hearing the appeal.”
Which all raises the question of why on earth advocates / legal professionals are not allowed to make a recording themselves. Everyone these days carries a high quality voice recorder in the form of their smartphone, and if recordings were allowed the absurd Victorian concept of counsel having to make a written note of a judgment would never arise.