19 May 2017Print This Post

Not “wrong in law” for judges to change transcripts

Amendments: accurate record

It is not “wrong in law” for judges to amend transcripts of judgments to better explain the reasons behind their decisions, the High Court has held.

HHJ Paul Matthews, sitting as a High Court judge, said judges “may properly be asked to clarify or amplify the reasons originally given in a judgment” even after delivery of that judgment.

“Indeed sometimes it may be the duty of counsel to ask the judge to do so, or the judge may consider the matter on his or her own initiative.”

HHJ Matthews said that if a judge considered that the oral transcript of a judgment did not “accurately represent his or her reasons for the decision”, the judge could alter it so it did accurately record the reasons.

“More, if the judge changes his or her mind as to the reasons for a decision or (in certain cases) changes the actual decision, then the judgment can be altered too.

“As a result, it does not matter if the approved transcript adds to or differs from the actual words used by the judge at the time of giving judgment.

“What matters is only that it has been considered, revised if necessary, and then approved by the judge. And that is what appears to have happened in the present case.”

The court heard in Bath v Escott [2017] EWHC 101 (Ch) that David Escott applied for the release of an audio recording of a judgment given at the Bristol District Registry of the High Court in August 2014.

HHJ Matthews described how Mr Escott claimed in his application that the transcript was not “true to what was said in court”, but did not give any details.

Whatever the position, HHJ Matthews said the mere fact that a transcript of the judgment, approved by the parties, was “in any way different from the reasons actually pronounced by the judge” at the time he gave judgement was not “wrong in law”.

He went on: “It is an entirely lawful and proper practice for a judge, on receiving a transcript of what was said at the time in giving judgment, to alter that transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes, and even matters of style, but also so that the reasons recorded accurately reflect why the judge made the decision that he or she made, even if they were not then properly or fully articulated.”

The judge said orders of the court expressed the courts’ decisions, while judgments expressed only the courts’ reasons for those decisions.

“Thus when the judge decides a case, it is the order that is made at the end that is all-important, and the reasons simply explain the basis for the decision.

“Of course, when an appeal court considers an appeal against an order, it will want to see what the reasons were. But even if the reasons were wrong, the decision might still be right, and in that case the appeal would be dismissed.”

HHJ Matthews said it had been “established for several decades” that even after handing down a judgment a judge is entitled to amend it and even change the decision itself before the order was sealed.

He dismissed the application as totally without merit.

By Nick Hilborne

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