Article by Tony Muman and Naomh Gibson
It is common practice in civil litigation following a trial of the issues for the Court to formally reserve judgment and to later release confidentially to the parties and their legal representatives a draft and invite assistance in identifying any editorial corrections before it is formally published and made available to the public: Practice Direction 40E of the Civil Procedure Rules.
Publication of the judgment often follows a procedure referred to as ‘hand-down’, usually done at a short hearing at which the parties do not need to attend. The expectation is that between circulation of the draft judgment and its formal hand-down, the parties will have agreed all consequential matters and drafted an order for the Court’s approval. The sealed order usually follows the ‘hand-down’.
A useful example of the ‘hand-down’ process can be viewed on the Supreme Court’s website.
The header of most draft judgments will record in standard form:
“This is a judgment to which the Practice Direction supplementing CPR Part 40 applies. It will be handed down on **** at 10:30 in Court No ****. This draft is confidential to the parties and their legal representatives and accordingly neither the draft itself nor its substance may be disclosed to any other person or used in the public domain. The parties must take all reasonable steps to ensure that its confidentiality is preserved. No action is to be taken (other than internally) in response to the draft before judgment has been formally pronounced. A breach of any of these obligations may be treated as a contempt of court. The official version of the judgment will be available from the Courts Recording and Transcription Unit of the Royal Courts of Justice once it has been approved by the judge.
The court is likely to wish to hand down its judgment in an approved final form. Counsel should therefore submit any list of typing corrections and other obvious errors in writing (Nil returns are required) to the clerk to ****, via email at **** @justice.gov.uk, by 4:00pm on ****, so that changes can be incorporated, if the judge accepts them, in the handed down judgment.”
But what happens in the curious situation where the Court having reached a finding of fact in the draft trial judgment, circulated in accordance with the above practice, receives by return suggestions for amendments and in the exercise of its discretion removes from the final judgment said finding, to the discontent of a party who subsequently applies for reinstatement to the judgment the excised part complaining that the handed-down judgment is in different form to the draft.
In Birmingham City Council v Afsar and Ors  EWHC 864 (QB) (here), Mr Justice Warby provided some illumination to this very issue.
Analytically, the learned Judge considered the claimant’s “reinstatement” application to be one of “waiver”. What the local authority was seeking to do was to waive confidentiality relating to that part of the (private) draft judgment which was omitted from the final (public) handed-down judgment. The claimant argued that the removed passage might be relevant to a possible appeal that it might want to bring and should not have been excised because it was “not really the sort of editorial correction that would normally be included in a return to a draft judgment”.
Unsurprisingly, the application was resisted on the following grounds:
(1) Until an order is sealed, the Judge has a discretion to alter a judgment, but this should not be done save in “exceptional circumstances”, or (perhaps an acceptable alternative) where there are “strong reasons”: In re Barrell Enterprises  1 WLR 19, 23 (Russell LJ), Compagnie Noga d’Importation et d’Exportation SA v Abacha (No 2)  3 All ER 513  (Rix LJ).
(2) The exercise of the discretion should be even rarer after the delivery of a written reserved judgment, compared to an extempore judgment, or one that has remained in draft: Stewart v Engel (Permission to amend)  1 WLR 2268, 2276A (Sir Christopher Slade), Robinson v Fernsby  EWCA Civ 1820  (May LJ) and  (Mance LJ).
(3) Here, the claimant failed to show that the case is exceptional or that there are any strong reasons for granting its application. The judgment is complete and sufficient; there is no need for additional findings. Nothing turns on the draft finding of fact. It is not explained how it might be relevant to an appeal.
(4) A number of other factors count against the exercise of the discretion in the claimant’s favour. These included the facts that the draft was circulated in confidence, with the potential for sanctions in the event of disclosure, as the rubric shows. The claimant failed to raise any complaint when the judgment was delivered, and have delayed for months before making this application.
(5) There was an ulterior purpose to the application, which is an abuse.
(6) The contents of the finding in question should not be brought into Court even if the application is granted.
Warby J’s reasoning for dismissing the application overlapped with but were not the same as those relied upon by the defendants. Whilst noting the instructive statements of principle arising from each of the aforementioned authorities – including the reminder in Robinson v Fernsby at , that “[t]he judge … did not … alter a judgment that had been given” – he distinguished the applications in each of those cases to the very different application that he had to decide. In none of those cases was there an application such as the waiver application here: to vary or amend a judgment that had been handed down, after circulation of a draft and representations about the draft, and certainly not after the Court had made a final Order pursuant to the handed-down judgment.
He reminded himself of the main principles from Robinson v Fernsby:
(1) The introduction of the CPR did not affect the long-settled principle that a judge has power to recall, reconsider and alter an order made after he had given judgment at any time before the order is drawn up and sealed: , [78-82], , .
(2) The exercise of the jurisdiction generally requires exceptional circumstances or strong reasons, though there may be circumstances in which it must be exercised in the interests of justice: [83-86], , .
(3) Those criteria apply to the alteration of a draft judgment which has been circulated to the parties before being handed down: .
(4) The same criteria apply, with greater force, where the judgment is a formal written judgment in final form handed down after the parties have been given the opportunity to consider it and make representations on the draft; there are obvious reasons – including the desirability of finality – why the court should hesitate long and hard before making a material alteration to such a judgment: , .
(5) The question whether to exercise the jurisdiction can only depend on the circumstances of the particular case: .
(6) The decision in a particular case is an exercise of judicial discretion which will only be interfered with on appeal on the usual grounds for discharging a discretionary decision: .
The learned Judge rejected as “far too broad” the claimant’s submission that the Court was under a duty to reinstate any omitted passage which might be relied upon by the disadvantaged party in any future appeal. Whilst the interests of justice is always the driving factor, here as pointed out by the defendants there was no indication that the claimant intended to appeal, and it was difficult to see how the omitted part of the judgment would have assisted in an appeal in any event.
The claimant, correctly, did not suggest, and the Judge did not find, that the excise of that part of the draft judgment was wrong in principle. The learned Judge reminded himself that his decision to edit the draft judgment in the manner suggested was one which fell within the Court’s discretion and that he had removed a passage which he considered was not necessary to his decision and therefore better to be omitted.
Applying what he described as the “least stringent test”, the Judge considered that the claimant had failed to show exceptional circumstances or strong grounds as to why he should revoke his earlier decision.
Warby J however necessarily went further, placing reliance on the principle in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd & ors intervening)  EWCA Civ 158,  QB 218. The facts in Mohamed are immaterial to the issue although the principles are summarised as:
(1) A judge is not bound by the terms of a draft judgment that has been circulated in confidence. The primary purpose of the practice is to enable any typographical or similar errors to be notified to the court, but on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft: .
(2) Draft judgments circulated in accordance with the standard practice are confidential as are the observations and submissions of the parties about the draft judgments: .
(3) The minimum requirement before wider circulation of the draft would be permissible is an application to the court for the confidentiality principle or understanding to be reviewed in the context of the individual case: .
(4) Tempting though it would be “to declare that the confidentiality principle as it applies to draft judgments should never be waived … adamantine rigidity of this kind would fail to allow for cases of high exceptionality”: .
On the basis therefore that the claimant’s application was for the waiver of confidentiality in part of the draft judgment; the application was made after the judgment had been handed down, and a final order had been made; the test to be satisfied is one of “high exceptionality”, or at least as stringent as the one identified in Robertson v Fernsby. That test was not satisfied in this case.
The defendants in this case were represented by the Halcyon Public Law team.
Ramby de Mello and Tony Muman (instructed by J.M. Wilson Solicitors) acted for the First to Third Defendants. Paul Diamond and Thomas Green acted for the Fifth Defendant.
For any enquiries please contact the Clerks.
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