PI Brief Update

Court of Appeal delivers judgment on the delivery of judgments: it is not a transactional process - Nancy Kelehar, Temple Garden Chambers

21/02/24. YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 71

Date of Judgment: 08/02/2024

In the context of a family case relating to a fact-finding hearing in respect of injuries inflicted on a young child, Lord Justice Baker has given guidance applicable more widely in civil proceedings in which clarification is sought of the judgment. Practitioners should heed this guidance and be wary of making excessive and unnecessary requests for clarification.

At the outset, the Court of Appeal made reference to Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5 in which Lewison LJ expressed the following [114-115]:

• The trial is not a dress rehearsal but rather the first and last night of the show.
• The judge should give his reasons in sufficient detail to show…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.

Similarly, in YM, the Court has reiterated that [9]:

• The delivery of a judgment is not a transactional process. Its contents are not open to negotiation.
• 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 inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or…ask the judge to reconsider the findings.
• 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.

In this case, there had been at least seven requests for clarification in the four months following judgment. The Court of Appeal described this exercise as ‘wholly unreasonable’ [69]. The appeal arose on the basis of perceived differences and inconsistencies in the judge’s reasoning between the original judgment and the responses to requests for clarification. This highlighted the danger that ‘an unchecked and ill-disciplined process’ may result in watering down, undermining or contradicting the findings in the initial judgment [10].

In the Court’s consideration of the history of this case and the issues on appeal, it had in mind the overriding objective: that the case is dealt with expeditiously and fairly and in a way which is proportionate to the nature, importance and complexity of the issues, and that it is allotted an appropriate share of the court’s resources [74].

In concluding that the written judgment in this case, amplified by the responses to requests for clarification, provided a sufficient explanation of the reasons for the findings, the Court highlighted the following lessons to be learned [90]:

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…if it is material to the decisions that have to be taken.
2. When making a request for clarification…counsel should therefore identify why the clarification is material to the decisions that have to be taken.
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. 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.

Practitioners should take note of the Court’s expression of hope that counsel will confine future requests to material issues and judges will deal robustly with excessive requests.

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