Correcting a draft

Robinson v Bird and others CA TLR 20 January

The practice of providing the parties’ legal representatives with a draft of a written reserved judgment a day or two before the date appointed for its handing down was intended to promote efficiency and economy. It was not provided so that parties might reopen its substance. In the present case, the judge had sent his judgment in draft to the parties in accordance with Practice Statement (Supreme Court: judgments) [1998] 1 WLR 825 and Practice Statement (Supreme Court: judgments) (No2) [1999] 1 WLR 1, inviting the parties to submit any list of typing corrections and other obvious errors in writing. The defendants representative wrote, apologetically, asking the judge to disregard his letter if the judge considered that it advanced new submissions, but asserted that the judge’s reasoning had not expressly applied the two-stage test under the Inheritance (Provision for Family and Dependants) Act 1975 as he was required to do. The judge invited brief written submissions on that point and then provided a draft of a revised judgment which reached a different conclusion from the first draft. Despite the appellant’s objections, the judge duly handed down a judgment in the form of the second draft. Was he entitled to do so? The Court of Appeal held that not only was he entitled to alter his draft judgment, he was positively obliged to alter it. If a judgment had not been handed down or delivered, it had not been given. Until it was given, it was of no effect. There were obvious reasons why it would be unfortunate, as in the present case, for a judge to alter a draft judgment which had been handed to the parties, but it remained a draft judgment which the judge was at liberty to alter. The question was whether ‘exceptional circumstances’ or something less rigorous would enable him to do so in a particular case. When a draft judgment was altered materially after it had been provided to the parties, as a minimum, disappointment might ensue. The possibility of an appeal based on differences between the draft judgment and the handed-down judgment was increased. That was certainly so in the present case. It scarcely needed saying that judges should not send draft judgments to the parties’ legal representatives in accordance with the practice statements if they themselves perceived a risk that they might want to change them materially before they handed them down. The parties should understand that the procedure was not an invitation to pick holes in the substance of the draft judgment, nor to invite the court to reopen or add to contentious matters. The court would only exceptionally make material alterations to a draft judgement provided in that way. So perhaps the uninformative label ‘exceptional circumstances’ needed to be appended to the exercise of the jurisdiction. ‘Strong reasons’ was to be preferred, but that again was only a label. There was a significant difference between a case in which one or more of the parties wanted to persuade a reluctant judge to reconsider a draft judgment and a case when the judge himself had decided that his draft was wrong. In the latter case, the judge was positively obliged to alter it, however unfortunate the consequences might appear. It would not be right for the law to require a judge to hand down a judgment which he believed to be wrong. In the present case, the respondent’s letter appeared to have initiated reconsideration by the judge. But, as the judge said in his final judgment, he had entertained doubts about the correctness of his approach and, having invited further submissions, was persuaded that his initial view was wrong.