Omissions, Ambiguities and Deficiencies – Seeking Clarification of a Judge’s Reasoning
Published: 27/03/2023 09:08
‘All judgments are capable of improvement’ observed Peter Jackson LJ in Re O (A Child: Judgment: Adequacy of Reasons)  EWCA Civ 149 at . As a consequence, the appropriate scope of seeking ‘clarification’ of a draft judgment – as opposed to suggesting corrections of a typographical or numerical nature or obvious mistakes of fact – is something that continues to vex advocates and judges alike.
The leading civil case on the practice to be adopted by advocates and judges in relation to requests relating to adequacy of reasons is English v Emery Reimbold & Strick Ltd  EWCA Civ 605 in which Lord Phillips MR stated:
‘ Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons, adjourning for that purpose should he find this necessary. If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons refusing permission to appeal on the basis that he has adopted that course. If he concludes that he has given adequate reasons, he will no doubt refuse permission to appeal. If an application for permission to appeal on the ground of lack of reasons is made to the appellate court and it appears to the appellate court that the application is well founded, it should consider adjourning the application and remitting the case to the trial judge with an invitation to provide additional reasons for his decision or, where appropriate, his reasons for a specific finding or findings.’
In the subsequent case of Egan v Motor Services (Bath) Ltd  EWCA Civ 1002,  1 FLR 1346, the Court of Appeal identified the parameters for such requests. Smith LJ stated:
‘ The purpose of the judge providing a draft of the judgment before hand down is to enable the parties to spot typographical, spelling and minor factual errors which have escaped the judge’s eye Circulation of the draft is not intended to provide counsel with an opportunity to re-argue the issues in the case.
 Only in the most exceptional circumstances is it appropriate to ask the judge to reconsider a point of substance. Those circumstances might be, for example, where counsel feels that the judge had not given adequate reasons for some aspect of his/her decision. Then it may be appropriate to send a courteous note to the judge asking him/her to explain the reasons more fully. By way of further example, if the judge has decided the case on a point which was not properly argued or has relied on an authority which was not considered, the appropriate course will be to ask him/her either to reconvene for further argument or to receive written submissions from both sides. Letters such as the one sent in this case, which sought to reopen the argument on a wide variety of points, should not be sent.’
In Re B (Appeal: Lack of Reasons)  EWCA Civ 881,  2 FLR 1035 Thorpe LJ confirmed (at ) that the English v Emery practice ‘is of equal application in family cases’.
In the family law sphere, the two leading authorities are Re A and L (Children) (Appeal: Fact-Finding)  EWCA Civ 1205,  1 FLR 134 and Re I (Children: Fact Finding: Clarification of Judgment)  EWCA Civ 898,  2 FLR 887.
In Re A and L, having referred at  to the practice in English v Emery, Munby LJ (as he then was) stated at  that ‘this practice applies as much in family cases as in ordinary civil appeals’. He drew attention in particular to the observations of Wall LJ (as he then was) in Re M (Fact-Finding Hearing: Burden of Proof)  EWCA Civ 1261,  1 FLR 1177 where he said at  that ‘[i]t is high time the Family Bar woke up to [English v Emery Reimbold] and the fact that it applies to family cases’.
Munby LJ then emphasised two points:
‘ First, it is the responsibility of the advocate, whether or not invited to do so by the judge, 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.
 Second, and whether or not the advocates have raised the point with the judge, where permission is sought from the trial judge to appeal on the ground of lack of reasons, the judge should consider whether his judgment is defective for lack of reasons and, if he concludes that it is, he should set out to remedy the defect by the provision of additional reasons.’
In R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs  EWCA Civ 65,  QB 218 Lord Judge CJ stated:
‘ The primary purpose of this practice is to enable any typographical or similar errors in the judgments to be notified to the court. The circulation of the draft judgment in this way is not intended to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones. However on rare occasions, and in exceptional circumstances, the court may properly be invited to reconsider part of the terms of its draft As we emphasise, an invitation to go beyond the correction of typographical errors and the like, is always exceptional, and when such a course is proposed it is a fundamental requirement that the other party or parties should immediately be informed, so as to enable them to make objections to the proposal if there are any.’
The procedure to be adopted is set out in FPR PD 30A, paras 4.6–4.10. Paragraph 4.6 deals with ‘material omissions’ from a judgment of the lower court:
‘Where a party’s advocate considers that there is a material omission from a judgment of the lower court or, where the decision is made by a lay justice or justices, the written reasons for the decision of the lower court (including inadequate reasoning for the lower court’s decision), the advocate should before the drawing of the order give the lower court which made the decision the opportunity of considering whether there is an omission and should not immediately use the omissions as grounds for an application to appeal.’
Paragraphs 4.7–4.9 inclusive then deal with the duty of the decision-making court and the appellate court each to consider whether there is a material omission which can be dealt with by way of additions to the judgment.
In the second of the leading family authorities, Re I (Children: Fact Finding: Clarification of Judgment), King LJ under the heading of ‘Clarification’ considered the use of the process between paragraphs  and . Having cited from the cases set out above she stated:
‘ In my view, the exhortations as to the limitations on counsel in seeking amplification of a draft judgment over and above correction of typographical and factual errors, is a principle which applies equally to all areas of civil procedure, including family cases. Re A and L (Appeal: Fact-Finding) saying in terms at para  that it is the responsibility of the advocate to raise with the judge “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” is not, in my view, inconsistent with Lord Judge’s observations in R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs
 The question, rather, is as to where one draws the line between a reasonable and appropriate request for amplification of the type identified by Munby LJ in [Re A and L (Appeal: Fact-Finding)], which request will properly be an example of the rare occasions where it is appropriate to go beyond typographical and factual errors in order to clarify issues in a judgment, as against a request which goes beyond [Re A and L (Appeal: Fact-Finding)] and seeks to reargue the case. Unhappily, to my knowledge, such requests can, on occasion, be frankly confrontational and disrespectful in tone.
 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 [Re A and L (Appeal: Fact-Finding)] 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.
 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. 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
 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.
 That excessive demands for clarification are not limited to care cases is evidenced by the observation by Mostyn J in WM v HM (Financial Remedies: Sharing Principle: Special Contribution)  1 FLR 313, when he said:
“ Finally, I would observe that the demands by [counsel] for correction and amplification of the draft judgment went far beyond what is permissible, and amounted to blatant attempts to reargue points which I had already rejected. This practice is becoming commonplace and should be stopped in its tracks in the interests of efficiency and the conservation of the resources of the court. Suggested corrections should be confined to typographical or plain numerical errors, or to obvious mistakes of fact. Requests for amplification should be strictly confined to claimed ‘material omissions’ within the terms of FPR 2010, PD 30A, para 4.6.”
 Provided that the term “material omission” found in para 4.6 is taken to embrace the totality of the matters included in para  of ... Re A and L (Appeal: Fact-Finding) , I would agree and endorse the observations of Mostyn J.
 It is neither necessary nor appropriate for this court 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 either 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. Requests for clarification should not be routine and should only be made in accordance with [Re A and L (Appeal: Fact-Finding)] which I repeat is: “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”.’
In FS v RS and JS  EWFC 63,  2 FLR 641 Sir James Munby stated (at  (iii)) that ‘[t]he sending out of a judgment in draft is not an invitation to enter into an ongoing Socratic dialogue’.
More recently in the family context in Re F and Another (Children) (Sexual Abuse Allegations)  EWCA Civ 1002 (25 July 2022), having referred to or cited from English v Emery, Re A and L (Appeal: Fact-Finding) and Re I (Children: Fact Finding: Clarification of Judgment), Baker LJ stated:
‘ In the three years since the judgment in Re I was handed down, there has been little if any discernible restraint in the practice of seeking clarification of judgments. Meanwhile the pressures on the family justice system have grown ever greater and King LJ’s observations about the burdens imposed on judges having to deal with such requests are of even greater relevance than they were in 2019.
 When giving judgment in a complex children’s case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as [Re A and L (Appeal: Fact-Finding)] emphasised, “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.” It is therefore rarely if ever appropriate for counsel to enquire as to the weight which the judge has given to a particular piece of evidence. If, as frequently happens, a judge draws together various strands of the evidence in giving reasons, it is neither necessary nor appropriate for counsel to separate out each strand and enquire what weight the judge has or has not attached to each piece, unless it can be said that in giving his reasons in a general way the judge has failed to address material parts of the evidence, or has created an ambiguity, or failed to provide sufficient reasons for his decision.’
In Re M (Fact-finding Hearing: Burden of Proof) Wall LJ (as he then was) stated (at ) that ‘[j]udges should welcome’ the process of counsel raising ‘not just any alleged deficiency in the judge’s reasoning process but any genuine query or ambiguity which arises on the judgment’ and ‘any who resent it are likely to find themselves the subject of criticism in this court’.
The above principles have been confirmed in the very recent civil case of Shepherd & Co Solicitors v Peter Brealey  EWHC 3229 (KB) (19 December 2022). Cavanagh J (sitting with Costs Judge Brown as Costs Assessor) stated:
‘ as the Court of Appeal made clear in Egan v Motor Services (Bath) Ltd  1 All ER 1156, attempts to reargue the issues in the case once the judgment has been circulated in draft were appropriate only in the most exceptional circumstances, for example, where counsel feels that the judge (i) had not given adequate reasons for some aspect of his decision, or (ii) had decided the case on a point which was not properly argued or has relied on an authority which was not considered.
 I respectfully wholeheartedly endorse the sentiments expressed by the Court of Appeal in Egan, and by the Court of Appeal in the earlier case of Robinson v Fernsby  EWCA Civ 1820, in which the Court deprecated the practice of counsel taking the opportunity afforded by the invitation to draw the court’s attention to typographical and similar errors to make submissions on further arguments of substance. The very helpful and sensible practice of circulating the judgment in draft is not designed to give the losing side a chance to change the judge’s mind. If there are errors or weaknesses in the judge’s judgment, the remedy is to apply for permission to appeal.’
Mostyn J is a particular critic of the practice of raising omissions which cannot objectively be said to be ‘material’. His comments in WM v HM (Financial Remedies: Sharing Principle: Special Contribution) at  are cited by King LJ in Re I (Children: Fact Finding: Clarification of Judgment) above. More recently in Olga Cazalet v Walid Abu-Zalaf  EWFC 119 (17 October 2022) Mostyn J stated (at ) that after providing his judgment to counsel in draft he received ‘a list of claimed “material omissions” within the meaning of FPR PD30A para 4.6, and an implicit invitation to reconsider my decision in the light of them’. He refused the application and stated as follows:
‘ In my judgment the omissions (if they were indeed omissions) were of no materiality in the legal and factual analysis which I had to undertake. It has taken me some time, at the expense of other work, to deal with complaints which I regard as flimsy and meritless. In my judgment, advocates must consider very carefully, dispassionately and disinterestedly whether there are, on objective analysis, material omissions from the judgment. The omissions would only satisfy the criterion of materiality where it can be plausibly and convincingly argued that a completely different decision would likely have been reached had they been bought into account.’ (original emphasis)
Mostyn J has also been critical of the timing of requests for ‘clarification’. In JL v SL (No 3) (Post-Judgment Amplification)  EWHC 555 (Fam),  2 FLR 1220 the judge was critical of a 9-day delay between circulation of a draft judgment (finalised and handed-down 2 days later) and a request for amplification of his calculations and reasons. He described (at ) the 7-day delay after hand-down as ‘totally unacceptable’ as he ‘had left to sit on circuit and had dealt with much other work. Inevitably the details of this case had faded from my mind’. He further stated that ‘[t]he system depends on requests for clarification of the draft to be submitted promptly and in any event before the judgment is finalised and handed down’.
The line (which is clearly not a bright line) between ‘material omissions’ which justify seeking ‘clarification’ of a judgment and those which are ‘flimsy and meritless’ can be a difficult one to discern. Likewise, the line between ‘additions’ and ‘foundations’ of the judgment (as it was described in Re O (A Child: Judgment: Adequacy of Reasons) by Peter Jackson LJ at ) where it is not appropriate to return to the trial judge but is likely to justify an application for permission to appeal (which Baker LJ described at  as ‘where the omissions [in the judgment] are on a scale that makes it impossible to discern the basis for the judge’s decision, or where, in addition to omissions, the analysis in the judgment is perceived as being deficient in other respects’ and which Cavanagh J described in Shepherd & Co Solicitors v Peter Brealey at  as ‘errors or weaknesses in the judge’s judgment’). The latter distinction is outside the scope of this article but knowing in both situations where to draw the line in seeking further reasons is an imprecise exercise that will vary according to the circumstances of each case.