Judges who give ex tempore oral rulings can make more than typographical changes to the approved transcript, the High Court has decided.
Mr Justice Nicol, sitting with Lord Justice Burnett, said the Recorder in the case under appeal was wrong to think he did not have the power to change the transcript since the judgment had already been given orally and could have been heard by anyone who was in court.
Nicol J said: “There may be a confusion here. The trial and judgment of this road traffic claim all took place in open court. The public were free to attend and such hearings are to be treated as public whether or not anyone was present other than those immediately involved with the case.
“Subject to immaterial statutory exceptions or contrary orders of the court, what takes place in open court can be freely reported. In a sense, therefore, the Recorder was right that this genie could not be put back in the bottle.
“However, it is common practice for a judge who gives an oral ex tempore judgment to refine it when asked to approve a transcript. Ordinarily, this is limited to tidying up the language, but in principle we see no reason why it may not include more significant changes… it is a matter for the judge’s discretion as to what changes are appropriate.
“This is not to say that the judge can behave arbitrarily. Like any discretion, it must be exercised judicially.”
Nicol J was ruling in MRH Solicitors Ltd v The County Court Sitting at Manchester & Ors  EWHC 1795 (Admin) , in which a Bolton law firm won a judicial review against the decision of Mr Recorder Osborne in Manchester County Court, who had accused it in his ruling of being party to a ‘crash for cash’ fraud, without giving the solicitors the chance to rebut the allegation. The substance of the case was reported yesterday on  Legal Futures.
After the ex tempore decision, the firm had asked the Recorder if it could make submissions as to why he should amend the transcript to remove the finding about MRH.
Nicol J also said that “in the unlikely event that something similar to this should happen in the future”, the right procedural course would be for the third party who believed they had been unfairly criticised in a judgment to apply to be joined as a party; if this was refused or the judge declined to amend the transcript, then they would have an order against which they could appeal, rather than seek a judicial review.
He added: “We emphasise that we are not saying that a third party who is criticised will necessarily be entitled to be joined as a party. There are many cases heard in the civil courts (and also family and criminal courts) where the conduct of an absent person falls to be considered.
“For example, in a conspiracy case not all the alleged conspirators may be before the court as parties or witnesses. In complex commercial frauds it may well be part of the case that an absent person or institution was party to dishonest conduct somewhere in the chain. Everything will depend on the facts of the individual case. The facts of this case are unusual.”