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Counsel’s Duties before Judgment is Handed Down

28-July-2014 10:31
in General
by Admin

Under CPR r. 1.3, parties are required to help the court further the overriding objective – enabling the court to deal with cases justly and at proportionate cost (CPR r. 1.1). Furthermore, in accordance with rC3.1 of the BSB Handbook, a barrister must not knowingly or recklessly mislead or attempt to mislead the court. Where counsel is of the view that a judgment contains errors they should take note of the following:

‘In many cases, the advocate ought to raise the matter with the judge in pursuance of his duty to assist the court to achieve the overriding objective (CPR 1.3…); and in some cases, it may follow from the advocate’s duty not to mislead the court that he should raise the matter rather than allow the order to be drawn.’ (T. (A Child) (Contact: Alienation: Permission to Appeal) [2002] EWCA Civ 1736, Lady Justice Arden at para.50)

There is no duty on a judge, in giving his/her reasons, to deal with every argument presented by counsel but they do have a general duty to provide reasons so that parties understand why that particular decision has been made (Flannery v Halifax Estate Agencies Ltd [2000] 1 W.L.R. 377). This principle was reiterated in English v Emery Reimbold & Strick Ltd [2002] 1 W.L.R. 2409 at para.16, ‘…justice will not be done if it is not apparent to the parties why one has won and the other has lost’. As a result, clarification or amplification of the reasons given may be required (see CPR r. InPaulin v Paulin [2010] 1 W.L.R. 1057 at para.30, Lord Justice Wilson discusses the steps to take:

‘Where the reasons for his decision are allegedly inadequate, a party should generally invite him to consider whether to amplify them before complaining about their inadequacy in this court and he has an untrammelled jurisdiction to amplify them at any time prior to the sealing of his order…’.

Emphasis is placed on acting quickly in order to reduce costs and delays. In T. (A Child) (Contact: Alienation: Permission to Appeal), Lady Justice Arden emphasised the need for counsel to be ‘alive’ to their duties:

‘…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. It is well-established that it is open to a judge to amend his judgment, if he thinks fit, at any time up to the drawing of the order.’

Whilst the above was in the context of a judge having handed down or delivered judgment, it is just as applicable to a draft judgment which requires corrections. 

In the Matter of A, L (Children) [2011] EWCA Civ 1611, the judgment was an extempore one following a fact finding hearing in care proceedings. Nevertheless, the discussion regarding duty is relevant. At para.47, Lord Justice Munby placed responsibility on the parties to follow up any queries they may have:

‘The safeguard is the ability – indeed the duty – of the parties to seek further elaboration or explanation from the judge if they feel that something is missing.’

However, careful consideration is needed. In Darren Egan v Motor Services (Bath) Ltd [2008] 1 W.L.R. 1589, Lord Justice Smith made it quite clear that writing to the judge, after a draft judgment has been provided, and asking him to reconsider his/her conclusion should happen only in exceptional circumstances. The purpose of a draft judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors. If exceptional circumstances do arise, for example counsel feels that the judge has 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.’

Guidance is provided in CPR Part 40. For instance, 40EPD at 3.1 describes how any proposed corrections to a draft judgment should be sent to the clerk of the judge (with a copy to any other party). Moreover, the Supreme Court Practice Direction 6 at 6.8.4 explains that it is the duty of counsel to check the judgment for typographical errors and minor inaccuracies.

In conclusion, counsel must, in pursuance of their duties, draw the judge’s attention to errors in a judgment before it is handed down. Whilst counsel should not make this decision lightly where more than minor errors are concerned, they must act quickly. Counsel has a real responsibility.

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