Court of Appeal: Draft judgments not an “invitation to treat”

King: Confrontational and disrespectful requests

Receiving a judge’s draft judgment is not an “invitation to treat”, nor is it an opportunity to critique the ruling, enter into negotiations or reargue the case, the Court of Appeal has made clear.

Ruling in a family case likely to be read across to civil and criminal matters, Lady Justice King said requests for clarification had “become commonplace” in children and family cases, and on occasion could be “frankly confrontational and disrespectful in tone”.

King LJ said it was “neither necessary nor appropriate” for the Court of Appeal to “seek to identify any bright line or to provide guidelines as to the limits of the appropriate nature or extent of clarification which may properly be sought” in children or financial remedy cases.

“I would merely remind practitioners that receiving a judge’s draft judgment is not an ‘invitation to treat’, nor is it an opportunity to critique the judgment or to enter into negotiations with the judge as to the outcome or to reargue the case in an attempt to water down unpalatable findings.”

The judge said requests for clarification “should not be routine” and only be made in accordance with a 2012 practice note relating to family proceedings, in other words “to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process”.

Delivering judgment in I (Children) [2019] EWCA Civ 898, King LJ said the question was where the line was drawn between reasonable and appropriate requests for amplification and attempts to reargue the case.

“Judgments in care cases are often given by a judge under immense time pressure whether extemporary or reserved.

“It is right that issues of the type identified in the practice note should be raised with the judge if appropriate and, in so doing, avoid the necessity of an appeal and therefore further delay for the child the subject of care proceedings.”

However, King LJ said Rex Howling QC, counsel for the baby’s mother, “confirmed the perception of this court that requests for extensive clarification, going well beyond the perimeters identified in the authorities, have become commonplace in both children and financial remedy cases in the family court”.

King LJ said: “It has become, as we understand it, almost routine for a draft judgment to be followed up with extensive requests for ‘clarification’ which in many cases can be regarded as nothing other than an attempt to reargue the case or, as here, water down the judge’s judgment; successfully in this case.”

The judge said Mr Howling had been “helpful and pragmatic in all his submissions, while the request for clarification submitted by him is by no means the most excessive the court has seen, it is, in my judgment, on the wrong side of the line”.

King LJ went on: “The family court is overwhelmed with care cases. Judges at all levels often move seamlessly from one trial to the next without judgment writing time between them.

“Routine requests for clarification running to a number of pages are not only ordinarily inappropriate, but hugely burdensome on the judges who have, weeks later, to revisit the evidence and their judgment when their thoughts and concerns have long since moved onto other cases. This is not conducive to the interests of justice.”

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