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Bath v Escott: the importance, or not, of a judge’s reasons

The recent case of Bath v Escott highlights the difference between a judge’s reasoning as evidenced in judgments and the actual decision as recorded in a court order, and the precedence of the latter.

Timing

Judgments and orders are governed by CPR 40 and the accompanying Practice Direction.

In a contested hearing, whether interlocutory or at trial, a judge has to adjudicate and make a finding, after examination of evidence in bundles, consideration of submissions from each party and sometimes hearing of oral evidence. There is no obligation on a judge to give his or her reasoning for their decision immediately following the hearing. In my experience, this is now the exception rather than the rule. This may have been fuelled by the increasing pressure on court timetables as well as judicial pressures, or simply because a judge feels the needs to digest and absorb the facts and reasoning in the case before coming to a conclusion with clarity and conviction, to avoid criticism and challenge.

The norm appears to be for judgment to be reserved until another day. This is covered by Practice Direction 40E. A date is usually set for the “handing down” of the judgment. A draft judgment is usually circulated between the parties and there are strict rules about its confidentiality before the actual handing down, as breach of this confidentiality can result in contempt implications. If there are no further issues following judgment, such as costs, then normally attendance by the parties or their legal representatives is excused.

The right under Article 6 of the Human Rights Act 1998 (HRA) does not just provide for a “fair trial”, but a fair trial within a reasonable time, which includes getting the judgment itself. There are no formal rules about how long after a hearing judgment should be handed down, save that it must be within a “reasonable” time (with some exceptions, for example under section 32 of the Children Act 1989).

In Bond v Dunster Properties Limited and other judgment was delayed by a staggering 22 months. On that basis, the claimant appealed, citing that the delay had now made the decision unsafe. The appeal was dismissed because the Court of Appeal did not see it as their place to sanction the delay; their role was to decide if there had been findings of fact which were wrong and whether a re-trial of the facts should occur.

I can see the problems with the continued lapse of time of a pending judgment; facts are no longer fresh, parties are left in limbo and the matter is dragged on with no end in sight. Clearly it is in everyone’s best interest for justice to be served expeditiously, especially as nowadays it seems much more likely that the loser will appeal the decision adding a further 12-24 months before a final resolution.

Substance

In the case of Flannery v Halifax Estate Agencies Limited the Court of Appeal provided guidance on a judge’s duty to give reasons for his or her decision, which was laid down in the case of R v Knightsbridge Crown Court ex p International Sporting Club. In the interest of a fair trial (although incidental, this case was prior to the enactment of the HRA and the application of Article 6), it was imperative for the parties, especially the losing party, to know the basis on which a case had been determined. Transparency is key to preventing allegations of bias and misapplication of the law, although it is not a complete defence. A lack of reasoning could in certain circumstances be a ground for appeal in itself and, in this case, the appeal was indeed permitted with a new trial ordered.

Rectification

Under paragraph 4.1 of Practice Direction 40B, where a “judgment or order contains an accidental slip or omission” either party can make an application for correction.

As Bath demonstrated, a judge can alter a transcript, the reasons for judgment (before handing down of the judgment) and even the judgment which had been handed down (before sealing of the order), as sealed orders were enforceable, rather than the judgments themselves. The importance of reasons was not deemed to be the overriding principle of the decision itself.

But the reasoning contained in a judgment is clearly relevant and important for the purpose of an appeal as it will be evidence of whether there has been an error of fact or law; transcripts or judgments are routinely quoted in grounds of appeal.

Conclusion

Clearly, where a judge has to make a decision between two opposing sides, they should give reasons, and do so within a reasonable period of time.

Given that there are safeguards in place before orders are made, namely the circulation of draft judgments as well as draft orders, there should be little room for error. The CPR only anticipates the necessity to correct minor errors. Obviously as Bath proved, this is not watertight, but what it showed was that a judge is entitled to alter his or her reasoning (as well as recording that reasoning as contained in a transcript) because the order is paramount, rather than the way in which you came to the decision

Hodge Jones & Allen Chun Wong

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