“TELL ME MORE, TELL ME MORE”: COURT OF APPEAL SENDS OUT CLEAR MESSAGE OF THE DANGERS OF SEEKING “CLARIFICATION” OF A JUDGMENT: IT MIGHT NOT GET YOU VERY FAR…

In  YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71  the Court of Appeal issued a clear warning about the misuse of the  practice of “seeking clarification” from the judge following a judgment.  The decision is aimed specifically at family practitioners (who the Court feels may have been a bit slow to get the message).  It has relevance, however, to a request for “clarification” following any trial.

“The delivery of a judgment is not a transactional process. Its contents are not open to negotiation. Just as the trial is “not a dress rehearsal” but rather “the first and last night of the show….  so the judgment is not a draft paper for discussion but the definitive recording of the judge’s decisions and the reasons for reaching them. It is therefore inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or to cite a part of the evidence not mentioned in the judgment and on the basis of that evidence ask the judge to reconsider the findings. In my view it is also inappropriate to couple a request for clarifications with a warning that an application for permission to appeal will be made if the clarification is not provided. I regret to say that this case provides examples of all of these inappropriate requests.”

THE CASE

The Court of Appeal was considering an appeal against a fact finding decision.  After the judgment at first instance was given numerous emails were sent, separately, by the legal representatives, sent numerous requests for clarification of findings made in the judgment.   These included a position statement seeking further clarification.

THE PRACTICE OF SEEKING CLARIFICATION

Lord Justice Baker made some general observations on the practice of seeking clarification.

1. 1. The practice of seeking clarifications finds its origins in the decision of this Court in English v Emery Reimbold & Strick [2002] EWCA Civ 605. In an effort to prevent unnecessary appeals being launched on the ground of the absence of reasons, Lord Phillips MR, giving the judgment of the Court, proposed the following course:

“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.”

1. 1. In due course, this practice was applied to family cases – see Re T (A Child) [2002] EWCA Civ 1736 and Re B (Appeal: Lack of Reasons) [2003] EWCA Civ 881, [2003] 2 FLR 1038. In Re T, Arden LJ said, at paragraph 50:

“In a complex case, it might well be prudent, and certainly not out of place, for the judge, having handed down or delivered judgment, to ask the advocates whether there are any matters which he has not covered. Even if he does not do this, an advocate ought immediately, as a matter of courtesy at least, to draw the judge’s attention to any material omission of which he is then aware or then believes exists.”

This passage was cited by the then President of the Family Division, Sir Nicholas Wall, in Re M (Children) [2008] EWCA Civ 1261 who added that it was “high time that the Family Bar woke up” to the decision in English v Emery Reimbold & Strick.

1. 1. In Re A and another (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205, reported as a Practice Note, Munby LJ (at paragraph 16) characterised the practice not as a matter of courtesy but as a professional obligation:

“It is the responsibility of the advocate, whether or not invited to do so by the judge, to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process.”

1. 1. Perhaps unsurprisingly in the light of the Practice Note, it has become increasingly common for counsel at the conclusion of a fact-finding hearing in care proceedings to submit requests for clarification of the judge’s reasons. In some cases, the requests are entirely appropriate and not infrequently the responses obviate the need for an appeal. In a series of recent cases, however, this Court has expressed concern about excessive and unnecessary requests for clarification – see in particular Re I (Children) [2019] EWCA Civ 898, Re O (A Child) (Judgment: Adequacy of Reasons) [2021] EWCA Civ 149, Re F and G (Children) (Sexual Abuse Allegations) [2022] EWCA Civ 1002, Re C, D and E: (Care Proceedings: Adequacy of Reasons) [2023] EWCA Civ 334, Re T and Others (Children) (Adequacy of Reasons) [2023] EWCA Civ 757 and most recently Re J, P and Q (Care Proceedings) [2024] EWCA Civ 22.

1. 1. In Re I, King LJ noted that

“requests for extensive clarification, going well beyond the perimeters identified in the authorities, have become commonplace in both children and financial remedy cases in the Family Court. It has become, as we understand it, almost routine for a draft judgment to be followed up with extensive requests for ‘clarification’ which in many cases can be regarded as nothing other than an attempt to reargue the case or, as here, water down the judge’s judgment.”

At paragraph 38, she observed:

“The family court is overwhelmed with care cases. Judges at all levels often move seamlessly from one trial to the next without judgment writing time between them. Routine requests for clarification running to a number of pages are not only ordinarily inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit the evidence and their judgment when their thoughts and concerns have long since moved onto other cases. This is not conducive to the interests of justice.”

1. 1. In Re A, B and C (Fact-finding: Gonorrhoea) [2023] EWCA Civ 437, Coulson LJ, whilst agreeing that the requests for clarification in that case had been “properly conducted” and “an extremely valuable exercise”, observed :

“In my experience, the practice in family cases of making oral and written requests to the judge for clarification of matters in his or her judgment can sometimes amount to no more than an illegitimate attempt to reargue the case, or to bamboozle the judge into errors or inconsistencies.”

1. 1. It is right, of course, as Peter Jackson LJ said in Re B (A Child) (Adequacy of Reasons) [2022] EWCA Civ 407 at paragraph 60, that “a judgment that does not fairly set out a party’s case and give adequate reasons for rejecting it is bound to be vulnerable.” But a judgment in family proceedings, like any other civil judgment, does not have to cover every aspect of the evidence nor every point raised in submissions. In Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 at paragraph 115, Lewison LJ expressed this well-established practice in these terms:

“The primary function of a first instance judge is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. He should give his reasons in sufficient detail to show the parties and, if need be, the Court of Appeal the principles on which he has acted and the reasons that have led him to his decision. They need not be elaborate. There is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. His function is to reach conclusions and give reasons to support his view, not to spell out every matter as if summing up to a jury. Nor need he deal at any length with matters that are not disputed. It is sufficient if what he says shows the basis on which he has acted.”

1. 1. The delivery of a judgment is not a transactional process. Its contents are not open to negotiation. Just as the trial is “not a dress rehearsal” but rather “the first and last night of the show” (per Lewison LJ in Fage UK Ltd v Chobani UK Ltd, supra, at paragraph 114), so the judgment is not a draft paper for discussion but the definitive recording of the judge’s decisions and the reasons for reaching them. It is therefore inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or to cite a part of the evidence not mentioned in the judgment and on the basis of that evidence ask the judge to reconsider the findings. In my view it is also inappropriate to couple a request for clarifications with a warning that an application for permission to appeal will be made if the clarification is not provided. I regret to say that this case provides examples of all of these inappropriate requests.

1. The danger is that an unchecked and ill-disciplined process may lead the judge to make statements by way of attempted clarification that water down, undermine or even contradict findings made in the judgment. That is precisely what the appellant local authority, supported by the child’s guardian, contend has happened in this case. As a result, they seek a retrial of the fact-finding hearing. In circumstances where the previous fact-finding hearing lasted fourteen days, and to date the proceedings have been ongoing for over two years, that is an alarming proposition.

THE PRACTICAL CONSEQUENCES IN TEH CURRENT CASE

The litany of requests and responses in this case contained both good and bad practice.

1. 1. Pausing there, it can be seen that this litany of requests and responses contains examples of both good and bad practice. Some clarification or amplification of the reasoning in the judgment was plainly required. The local authority was right to point out that the judge had not dealt with the issue of failure to protect. It was also plainly right to inquire whether the judge had found that the mother was covering up for the father as a sentence in the oral judgment to the effect that she was not covering up was removed from the written version. But a number of the other requests were inappropriate. The email sent on behalf of the mother on 11 October identifying certain aspects of the evidence and inviting the judge to reconsider her findings was a glaring example of using the process to reargue the case. The final request on behalf of the father took the whole process to another level. It sought findings that had not been raised previously, made fresh submissions in support of those findings, relied on additional evidence filed by the father, and warned that, if the judge declined to make the clarifications sought, an application would be made for permission to appeal.

1. Overall, the scale of this clarification exercise was wholly unreasonable. I calculate (although I may have lost count) that there were no fewer than seven requests for clarification between 31 July and 7 November. I am sure that counsel were not intending to “bamboozle” the judge (to use Coulson LJ’s word) by their repeated requests but she would certainly be forgiven for feeling bamboozled. In some instances, counsel were plainly trying to lead the judge to refine her judgment so that her ultimate findings were closer to the outcome favoured by their client. The question for this Court is whether at the end of this chaotic process the integrity of the judgment has been fatally undermined.

THE VEXED ISSUE OF REQUESTS FOR CLARIFICATION: SOME GUIDANCE

Lord Justice Baker returned to the issue of requests for clarification and set out some guidance.

1. 1. Finally I return to the vexed issue of requests for clarification. It may be, as Ms Fottrell suggested during the appeal hearing, that it takes time for the messages from reported cases in this Court to get through. But, if I may adopt the words of Sir Nicholas Wall P quoted above, it is high time they did. This case illustrates that the procedure is still being misused. I would therefore draw the following lessons to be learned from this case, in the context of other cases which have involved similar examples of the practice being misused:

(1) A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child’s welfare needs.

(2) When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.

(3) Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.

(4) Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.

(5) Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

1. The purpose of the process of clarifications is to head off unnecessary appeals. In a number of recent cases, the misuse of the process has had the opposite effect. I hope that hereafter counsel will confine requests to matters which are material to the proceedings and that judges will deal robustly with requests that exceed what is permissible.

LORD JUSTICE MALES

Lord Justice Males also made some important observations.

1. 1. I agree with the judgment of Lord Justice Baker. However, I wish to say something about the practice of ‘requesting clarification’ of fact finding judgments which appears to have become a real problem in family cases.

1. 1. First, I acknowledge that counsel may sometimes be on the horns of a dilemma. If no request for clarification is made on those rare occasions when a judgment is patently inadequate, criticism may be made if a complaint of inadequate reasons is made for the first time on appeal. Nevertheless, this court has warned repeatedly against the inappropriate use of the ‘request for clarification’ procedure. It was suggested by counsel that the message may not have got through to family law practitioners as yet, but if that is so, it is high time that it did.

1. 1. Second, a ‘request for clarification’ should not be used as a means of attempting to water down findings which have been made in the judgment, still less to negotiate with the judge about what needs to be said in order to avoid an appeal. Whether or not that was the intention, it appears to have been the result of the process in the present case. In my judgment the only possible interpretation of what the judge said at [191] to [193] of her judgment is that the father was the perpetrator of non-accidental injury, and that his actions were intentional, albeit the result of a momentary loss of temper rather than any pre-planned malice. Otherwise the judge’s references to the father’s habit of destroying his remote control in a fit of temper and his comment about wanting to injure the child as her rationale for finding him to be the perpetrator do not make sense. In those circumstances I can see no justification for asking for clarification whether the injuries were deliberately caused.

1. 1. Third, if a judge proposes to ‘clarify’ a finding, she should ensure that the clarification clarifies rather than obscures what is said in the judgment. If, which should only happen very rarely, a judge intends to modify or withdraw what is said in the judgment, the clarification should make that explicit and should explain why the judge has changed her mind. Otherwise this court will proceed on the basis that the approved transcript of the judgment contains the judge’s findings and that what is said by way of clarification is intended to add to but not to change those findings. In the present case, the judge said nothing in her clarification to indicate that she had changed her mind about what she had said at [191] to [193]. Whatever may be the true interpretation of some aspects of her ‘clarification’, which I have not found easy to determine, those findings stand.

1. 1. Fourth, I would suggest that it is always necessary to have firmly in mind that the purpose of a fact finding hearing is limited to determining those facts which are necessary in order to make decisions about a child’s future. It is not necessary or even desirable for judgments to make findings about everything which has been in issue in the course of the hearing. Whether clarification is necessary in order for a decision to be made about a child’s future should be the touchstone. If clarification is sought, counsel should explain why it is necessary in order for such decisions to be made. That will assist in focusing minds as to whether clarification is really necessary. If no such explanation is advanced, or if the explanation is unconvincing, judges may safely conclude that it is not.

1. 1. Finally, I agree that to direct a fresh fact finding hearing in this case would be disproportionate and, frankly, disastrous. A fresh hearing could take place no earlier than mid-2024 and would be concerned with events as long ago as October and November 2021. Despite the shortcomings of the original judgment and the unsatisfactory nature of the process of clarification which followed, it is unrealistic to think that such a fresh hearing would provide a clearer picture than is now available or would result in a more just outcome. Given both parents’ cognitive difficulties, there is very little prospect that they would be able to participate properly in such a hearing. As it is, the findings made are that there were serious and significant failings by both parents. That is self-evidently so in the case of the father. Realistically, Ms Fottrell accepted that even though the judge did not make the full extent of the findings sought by the local authority against the mother, the findings which she did make were themselves serious and significant.

1. It is on this basis that decisions must now be made about the future care of this child, while recognising also that considerable time has passed and that a careful assessment of both parents as they now are will need to be made in order to determine what role they can safely play in their child’s’s life.