Journalists and legal bloggers attending family courts – A Workshop for lawyers

29 January 2019 5.30pm, Gresham College, London

Next week I'll be running this Transparency Project training workshop for lawyers. Please do come if you can.

More information:

In light of the Legal Blogging Pilot implemented through PD36J, The Transparency Project are running a CPD workshop for lawyers interested in brushing up their ‘transparency’ knowledge – whether with a view to taking part in the scheme themselves, or so they feel better prepared for responding to attendances by legal bloggers or journalists in cases where they are instructed. We know that for most advocates the attendance of a journalist at hearings is a rare event, and often catches people by surprise. Even more so where legal bloggers are concerned. What is the law and procedure? How should you advise your client, and how should you respond to any application these reporters might make?

Whilst we are keen to encourage lawyers to become aware of and involved in the legal blogging pilot, the purpose of the event is wider than that – to inform and advise on what restrictions on publication would apply or how the pilot scheme operates in the event that a legal blogger attends court.

Our aim is to assist advocates to best serve the interests of their clients whether parent, child or local authority. We’d also like to take the opportunity to gather any feedback from participants on the issues that may be emerging from the pilot scheme and their experiences of it or worries about it.

Because we want to facilitate frank discussion and enable participants to ask questions about things they are concerned or unsure about, this event is a lawyer-only event and will not be video recorded.

This event is open to any lawyer conducting advocacy in the family court in England & Wales or who would be eligible to attend court under the legal bloggers pilot. Tickets are free, but donations are invited. Ticket numbers limited. Please book via our Eventbrite booking page.

This event has been made possible through the kind sponsorship of Bloomsbury Professional Family Law.

What’s in a judgment anyway?

In November a journalist I know and respect took to social media to air her concerns about the probity of family court process as regards transcripts of hearings. She did so in good faith based upon ‘authoritative’ information she had been given about a tricky topic. Although it has taken me some time to get around to is due to other priorities, her tweets in turn caused a lot of people real worry, and prompted those who already held concerns to chip in – creating at least for a short moment – quite a furore and heightening people’s anxiety about the fairness and transparency of the family court process.

 

This is what kicked it off :

 

https://twitter.com/louisetickle/status/1060801947786231808

https://twitter.com/louisetickle/status/1060802795190865921

So, regarding my question on whether judges in family courts can alter transcript of court audio of hearings... I have an authoritative answer which hugely worries me:

A family judge can alter the transcript of audio, in certain respects: they can’t alter the overall sense judgment, but can tidy it up, expand on their reasoning and clarify what they said. So *where* is the precise contemporaneous record of what actually happened in court?

In the course of exchanges with a number of us who raised an eyebrow at this, she went on :

https://twitter.com/louisetickle/status/1060817556217516032

I’m in no doubt that the family justice system means well, but that is utterly inadequate as a standard. If a judge is able, unchecked by anything but their oath, to amend their words, no wonder families feel they are being gaslighted by the system. No wonder they want to record.

https://twitter.com/louisetickle/status/1061234145681125376

I’ve made no assumption of deliberate malice. But I do think that poor practice can happen, that people can inadvertently go too far, and temptation can be facilitated by poor systems.

https://twitter.com/louisetickle/status/1061279920897384448

Oh you know, realising in reading back a transcript that you sounded intemperate, that your reasons wouldn’t stand up, that by replacing a word or two here or there that you might not sound quite so harsh. The little replacements and avoidances that are so easy to do.

 

That was November. I disagree with Louise’s ‘authoritative answer’ and I told her so at the time. I think it confuses and conflates different parts of the same process, making it look like a judge has more free reign to tinker with a transcript than she actually does.

 

I also think that the emotive way that Louise went about airing this issue was unhelpful. I think the issue is more nuanced than Louise allowed for and her tweets fed mistrust of the system without properly acknowledging how things work. What was tweeted was neither entirely accurate (in my view) nor a complete and fair representation of the process – and twitter is not a great medium for explaining something a bit complex. That doesn’t mean I think the system is perfect or fool proof, just that I think in this instance more heat than light was generated. Louise and I have both agreed that we would each write at greater length about this and this is my part of that agreement. Louise has seen this post in draft and when she has published her response I will link to it.

 

Based on the explanations given in the tweets it is entirely understandable that people would be perplexed and worried. I’m very alive (thanks to respectful challenge from engaged outsiders to the system like Louise) of how it looks to litigants. But my respectful challenge to Louise is that people need to understand the context for the bare suggestion that a judge can change his judgment if comment is to be responsible and facilitative of informed debate. The topic arose at the Family Justice Council Annual Debate on Covert Recording, where I spoke, with one audience member complaining of a system where a judge could alter the record of his judgment in a covert way (see here). That individual is not a lone voice. It is important that the processes and practice in this area are explained if people are to have any confidence in what is going on.

 

No system is impervious to corruption, but the processes in place for challenging and holding judges accountable are actually pretty sensible once you understand how they work. This post is an attempt to explain the process as I understand it so that people can form a view about where the weaknesses may actually lie - and I hope so that they feel somewhat reassured.

 

As I discovered when I sat down to write this post there is rather a lot to pull together here, and I need to go right back to basics.

 

First of all, it is important to understand what a judgment is. A judge has a duty to give reasons. A judgment is the record of those reasons.  A useful summary of this can be found in a case called Flannery & Anor v Halifax Estate Agencies Ltd [1999] EWCA Civ 81, where the Court of Appeal said :

 

(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know…whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not. 

(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself. 

(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter…

(4) …the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword. 

 

A judgment is the judge’s expressed reasons for making a decision. The decision itself is expressed in the court order (which says what will happen), and it is the order which is appealed. It is essential that there is a reliable official record of the judge’s reasons, both so that an appeal court can assess whether the order is wrong, and in family cases it is also really important that record exists so that the children involved have some record of decisions made concerning them for the future.

 

Recordings

All court proceedings these days are now audio recorded (when I first started in practice many were not, particularly magistrates courts where the only record was the often terribly inadequate legal advisor’s handwritten scribble of a note).

 

The making of a recording is now a part of the Family Procedure rules (FPR 27.9). Rule 27.9 requires a recording to be made of a hearing in open court of proceedings pending in the High Court, and in other proceedings at the Lord Chancellor’s direction. Quaintly, these still refer to an ‘official shorthand note’, but the rule defines shorthand note as including a ‘record of the proceedings made by mechanical means ‘and … the ‘shorthand writer’ as including ‘the person responsible for transcribing the record’. This slightly odd phrasing basically translates as follows : HMCTS (the court staff) are responsible for the official court recording, subject to the direction of the judge.

 

Most courts now record digitally with court staff logging and downloading the day’s audio recordings onto dvd at the end of the court day, but some still use cassette tapes.

 

This recording will be made of the whole hearing, including any part where the judge speaks a judgment and any discussion with the judge immediately afterwards. Obviously occasionally recording equipment fails, discs are misfiled or lost, and judges or court staff forget to press record. But generally, there should be a complete record of every hearing and every spoken judgment.

 

Other than pressing stop and start judges have nothing to do with the process of recording and storage of the official recordings. When a transcript request is made that is dealt with by court staff other than court staff referring an application to a judge for permission where that is needed (The rules say that the court (judge) must give permission before the shorthand note (recording) or the transcript is provided to anyone. There are very limited exceptions which won’t apply in most cases). It will be court staff who will locate the disc and convey it to the transcription company. The disc itself is usually never handled by the judge or the party who has applied for a transcript.

 

The rules in civil (non family, non crime) proceedings, which are heard in public, are slightly different – for those interested see CPR PD 39A. Paragraph 7.9 of the Court of Appeal (Civil Division) Practice Direction deals with the provision of transcripts for use in the Court of Appeal at public expense.

 

The parties to a case don’t have the general right to listen to or obtain a copy of the actual recording of a hearing and they are prohibited from making their own unless the judge gives permission (s9 Contempt of Court Act 1981). This is to prevent misuse of recordings. A party can ask for permission to obtain a transcript of the recording (on payment of a fee, which in some circumstances the fee can be reduced or waived). Once a party has a transcript, it is possible in exceptional circumstances to apply to listen to the actual recording, but only where there is ‘cogent evidence that the official transcript may have been wrongly transcribed’ (See the little known Practice Direction: Access to Audio Recordings of Proceedings issued by the Lord Chief Justice on 14 February 2014. This also provides that a reporter may also be given permission to listen to a recording in order to ensure accuracy of their report). These rules apply to recordings of both hearings and of judgments.

Delivery of a judgment

There are various mechanisms for handing down (delivering) a judgment :

 

Sometimes a judge will deliver her judgment straight after the parties or lawyers have finished their submissions (known as an extempore judgment), but more often they will go away and think about their decision, make some notes and then deliver the judgment later that day or on another date, depending on the complexity of the material they have to think about and cover in their judgment. This is known as a reserved judgment.

 

Oral judgments

A judge may deliver a judgment orally (by speaking it aloud in court). An oral judgment may or may not be reduced to writing at some stage - it is not automatic. If the judgment is needed for a particular purpose such as distribution to agencies working with a child, for life story work, for publication or reporting in law reports, or for appeal - the written record of it will either be produced by means ordering a transcript to be prepared from the audio recording which is then converted by the judge to the approved (official) judgment, or by the advocates being asked to type up and agree their notes of what was said for approval by the judge (the latter usually only for shorter judgments or where there is some urgency – and usually only if the parties are represented as it is part of an advocate’s job to take a note of judgment unless the judge has told them that a written copy or transcript will be provided).

 

If the court has ordered a transcript of the oral judgment that transcript will be checked and approved by the judge before it becomes an approved judgment and is distributed.

 

The practice of preparing a judgment from a transcript or from advocates notes is expressed in the Family Procedure Rules via rule 29.11, which deals with the drawing up of judgments in family court cases. It says that the court will be responsible for this unless it makes some other order. The court can say that a judgment drawn up by a party must be checked by the court before it is sealed. Either way the court is in control of the production of its own judgment.

 

If the judge does not direct a transcript (either at the joint expense of the parties or at public expense) then any party who seeks a copy either for an appeal or for their records will need to apply and pay a fee unless they have legal aid or qualify for an exemption (See here).

 

Written judgments

A judge may prepare a judgment in writing and circulate it on paper at the time the judgment is formally handed down in court usually without reading it out in full. Occasionally a judge will already have prepared their judgment in writing but will read it aloud anyway.

 

If the judgment has been reserved the judge may circulate a draft for corrections to lawyers in advance of the finalized version being handed down (in which case there are strict confidentiality rules about this draft judgment until it is finalized). This process of checking with advocates that there are no obvious errors may result in some amendments before the draft is finalised. This is described in a recent case called Bath v Escott [2017] EWHC 1101 (Ch) (11 May 2017):

… The current practice (in place now for many years) is that a judge who, instead of delivering a judgment orally at the end of the argument, has reserved it to be given at a later date in writing, will circulate a draft of that judgment before handing it down. A judge may alter the draft judgment between circulating it (and receiving comments from the parties) and handing it down.

 

What happens once the judgment is handed down?

When a judgment is delivered (orally or in writing) the parties lawyers may ask the judge to correct phrases that are confusing or unclear, or minor factual points that have been accidentally misstated. As noted before this sometimes happens in advance of a judgment being formally handed down.

 

These minor corrections fall under Family Procedure Rule 29.16 (the slip rule) which allows the court to correct an accidental slip or omission in a judgment at any time – either off its own bat or when a party asks it to. This is the power that allows the judge to ‘tidy up’ and ‘clarify’ as per Louise’s tweet. That is perfectly unobjectionable – and to that extent it is quite normal for a transcript of judgment to look slightly different from the words actually spoken on the day.

 

As explained by HHJ Matthews in Bath v Escott :

the mere fact that the transcript of the judgment, as approved by the judge, and sent to the parties, is in any way different from the reasons actually pronounced by the judge at the time of giving judgment, is not wrong in law. Nor does it in itself even give rise to concern. 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 starting point is that it is orders of the court that express the courts' decisions. "Judgments", in the popular sense, express only the courts' reasons for those decisions…So it is court orders that are enforced, rather than judgments containing reasons. And appeals to higher courts are appeals against orders that are made by the court, rather than against their reasons. 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.

 

Judges rarely perfectly express their reasons when they deliver a judgment. When delivering a long detailed judgment from notes or an extempore judgmentit is inevitable that a judge will stumble or misspeak a word or two, and even though everyone knows what is meant the judgment should be a correct record of the judges reasons rather than her imperfect performance of them. It is important to understand that getting a transcription company to prepare a transcript of an oral judgment is just the raw material from which an approved judgment is prepared – it requires checking for inaccurate transcription and for inaccurate expression of actual reasons by the judge. Use of the phrase ‘transcript of judgment’ to describe an approved judgment probably isn’t helpful because it doesn’t make clear this distinction between a transcript (the raw material) and the judgment (the finished product).

 

This can be contrasted with a transcript of evidence given or of a hearing – these are what they are, no more than a record of what was actually said – and so they do not need the judge’s approval (but of course transcribers do mishear or mistype sometimes and those corrections can always be made).

 

If a judge messes up shouldn’t that mistake stand so it can be the basis of an appeal?

Sometimes a judge messes up so badly nothing can save their decision and reasoning from an appeal. But remember it is the decision / order that is appealed – the reasons just help us work out whether the decision was wrong or not. Minor errors probably don’t mean the whole decision is wrong and appealable.

Bath v Escott again :

Moreover, it is clear that, "if a judgment contains what the judge acknowledges is an error when it is pointed out, the judgment should be corrected, unless there is some very good reason for not doing so. A judgment should be an accurate record of the judge's findings and of the reasons for the decision": see Space Airconditioning plc v Guy [2012] EWCA Civ 1664, [53].

 

Imperfections in a judgment do not necessarily mean that the judge has not considered a particular point, only that they have forgotten to spell it out in their judgment. If a party or their legal representative thinks something has been left out it is acceptable to ask the judge at the end of her judgment to clarify (indeed this is something that is expected to be done before rushing off to the Court of Appeal on the basis the judge’s reasons aren’t detailed enough).

Bath v Escott :

Lastly, it is also the law that a judge may properly be asked to clarify or amplify the reasons originally given in a judgment even after the 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 of his or her own initiative. It is then legitimate for any higher court hearing an appeal from a judgment of the court below to take into account any supplemental judgment or statement in which the judge amplified the reasons given for the main judgment: see Greenwich Millennium Ltd v Essex Services plc [2014] 1 WLR 3517, [7].

 

Often when asked to clarify whether they have considered a particular point that has been canvassed during the hearing a judge will say ‘Oh yes of course, I have considered that and I should have said so – I will amend my judgment to show that’. Or, I have considered that, but I did not think it was necessary to spell it out. That is often the end of that. Or, they may give a short additional paragraph of reasons to add to their judgment. Sometimes of course a judge will say ‘No. My reasons are adequate and I have nothing to add’.

 

Sometimes it will be apparent following that process of clarification that the judge hasn’t considered something important, or that they have considered something but got it wrong. Those are the sorts of cases where an application for permission to appeal might then be made to challenge the decision.

 

When Louise suggests a judge may expand on her reasons I think this is crossed wires. I think what is being described is this part of the process where a judge is asked in the presence of the parties to clarify, or give additional reasons – and they then give them in the presence of the parties (or by email to all advocates). What seemed to worry Louise and many of those responding to her tweets was that this was somehow done secretly. In fact, this is part of the process and is done openly. Once the judge has expanded on their reasons a party (and their lawyer) can decide whether or not they are satisfied with that or if they want to appeal.

 

Can a Judge change her mind?

In short, yes – at any time until the order is sealed. But a judge should not be ‘capricious’ – they should not do this lightly. Yes, Bath v Escott again :

It is clear law that a judge who gives reasons for a decision may alter those reasons, indeed sometimes even the decision itself, after having made them known to the parties. So, it has long been the practice for judges to revise transcripts taken of their judgments given in court for the purpose of publication. The courts have made clear that, if there are two reports of a decision available, one containing the judgment as revised by the judge, and the other simply giving a transcript as taken down by the shorthand writer, without revision by the judge, then the revised version will be preferred as more authoritative: Fairman v Perpetual Investment Building Society [1923] AC 74, 79.

Turning to judgments which have been formally given or handed down, it has been established for several decades now that even after giving or handing down the judgment a judge is entitled to amend it, and even to change the decision itself if necessary, before the order is actually sealed: see Re L and B (Children) [2013] 1 WLR 634, [16]-[27]. It was held by the Supreme Court in that case that the power of the judge to reverse the decision at any time before the order was drawn up and sealed was not limited to exceptional circumstances, and that the overriding objective in the exercise of power was to deal with the case in question justly.

(you can read more about the L and B case on the Suesspicious Minds blog here).

 

Occasionally, when an omission is pointed out to a judge or they are asked to give better reasons, it will lead a judge to realise they have got something wrong and to change her mind on the main issue in the case.

 

Very occasionally a judge will change their mind independently of any prompt from the parties.

 

Where a transcript is ordered the transcript comes in the first instance to the judge, so that he can check the transcriber has accurately transcribed what was said (often there will be an ‘inaudible’ section which needs to be filled in because someone has coughed or sneezed), and that the punctuation and formatting makes sense – and can check for any minor errors as before. In a case where a judge has expanded upon his reasons or clarified what was meant the judge might amend the transcript when it is sent to her by the transcribers, so that the additional reasoning is incorporated into the main judgment i.e. made a logical part of the sequential explanation, rather than a conversation tagged on to the end. But the judge should not at this stage be adding to or changing her reasons for the decisions - without flagging that to the parties. There would be nothing wrong in principle with a judge changing her mind as long as they were candid about doing so.

 

That is not to say that changing a judgment and pretending nothing is different never happens, and Matthew Richardson gives an example below – but it is rare and as I explain below there are mechanisms for dealing with this.

 

Agreed - I had a judge remove part of a judgment that wasn’t favourable to them and I *very* much noticed, and told the appeal court (though it wasn’t so bad as to be a ground of appeal)

https://twitter.com/mrichardsonlaw/status/1061175900639842304

What seems to have worried people is that idea that a judge who knew they were going to be the subject of an appeal might change their reasoning (or remove some intemperate language) at this stage without being open about it. Any judge who did this would be most unwise because a) the parties would spot what had been done and are likely to raise this as Matthew did and b) the original audio recording will still be available to an appeal court should the changes be an issue. In Matthew’s case if the alteration had been really important the appeal court might have asked the judge about that or could have listened to the audio recording to see what the judge said first time around.

 

If, for example, the appeal was one where it was said the judge was biased and this could be seen in the intemperate language that had been contained in a judgment then the parties would be able to ask the appeal court to obtain a transcript or to listen to the audio recording itself (under the 2014 Practice Direction access to the audio recording by the parties themselves will only be granted in ‘exceptional circumstances, for example where there is cogent evidence that the official transcript may have been wrongly transcribed’). The reality is that if a judge has been intemperate in their judgment they have probably been intemperate throughout the hearing and it is therefore the transcript of a hearing which is most likely where a biased judge will have shown her true colours. That transcript is NOT something that the judge approves or edits so it will come unpolished if requested. It would also be possible to seek the disclosure of the unamended / unapproved transcript of a judgment if a judge had tinkered inappropriately with a judgment in a way that was relevant for an appeal (but I think most bias type allegations would be demonstrable earlier in the process – and because establishing bias is a really high hurdle you would really need in most instances to show more than a couple of off words in a judgment, such as persistent inappropriate remarks or behaviour running through a hearing).

As it happens, Bath v Escott was a case where an inaccurate transcript was precisely the complaint (although it wasn’t a bias case). Mr Escott was applying for the audio recording to show the transcript was inaccurate, but hadn’t spelled out what had been changed or make a case for why that actually mattered at all. The judge said :

What all this means is that, if a judge on later reading the transcript of an oral judgment already delivered considers that what is written there does not accurately represent his or her reasons for the decision, the judge may and indeed should alter it so that it does accurately record the reasons that the judge had for that decision. 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.

On its face, this is an application essentially complaining that a transcript approved by the District Judge does not accurately record what the District Judge actually said on the day. For the reasons which I have given above, there is no duty on the judge to approve a transcript limited to the exact terms of the words spoken on the day. On the contrary, it may be the duty of the judge to alter the transcript in order to make the transcript as approved an accurate record of the reasons for which the decision was made, which may not have been properly or adequately expressed at the time, and even in some cases may not have been articulated at all.

I accept that, if the applicant were to allege, with sufficient evidence to raise a prima facie case, that the statement that the judge had revised and approved the transcript was false, or that although the transcript was so revised and approved it nevertheless did not reflect accurately the judge's reasons for the decision, or that the judge had added to the transcript a new point never previously raised (and which the parties had not been able to comment on), and then decided the case on the new basis, that might be different.It would be a high hurdle to overcome, for obvious reasons, but I cannot say that it could never be done. In the present application, however, the applicant does not make any such allegation, still less provide any evidence for it. In these circumstances, I cannot take the matter further.Accordingly, this application is bound to fail, and it is both unnecessary and inappropriate under CPR rule 23.8(c) to list it for hearing. I dismiss it as totally without merit.

 

Mr Escott didn’t get very far with his attempt to show the transcript was somehow bogus, but there are examples in the caselaw of appeals where the Court of Appeal has listened to an audio recording or read a transcript of things the judge has said in the course of a hearing, sometimes including excruciating extracts from exchanges that took place in court in their judgment in order to illustrate just why the appeal court has come to the view the judge behaved inappropriately and the appeal should be allowed. This demonstrates that whilst an approved judgment is an important document on an appeal, it is not always the onlything the appeal court will consider.

 

In Re G (Child) [2015] EWCA Civ 834, the Court of Appeal considered an appeal from a Circuit Judge who had been very hard throughout a hearing on counsel for the mother after she had arrived late at court due to snow. Her appeal succeeded as a result of the court listening to the audio recordings and reading the transcripts of the hearing.

 

The transcript does not convey the degree of pressure put by the judge on Ms Toch [counsel for the mother] …What is not apparent from the transcript is the judge's tone of voice. I need only say that listening to the recording did nothing to improve the impression gained from the written word. 

…It is understandable that the judge felt frustrated by the loss of time that could otherwise have been devoted to discussions between counsel or other arrangements outside court or to getting the hearing underway. It is clear that it was going to be a challenge to conclude the evidence and submissions within the allotted court time, even without delays of the kind that had occurred and that always poses difficulties for a judge. However, I accept the submission of Mr Phillips that she laboured the issue of Ms Toch's lateness to the point of unwarranted, unfair criticism. 

… I also accept the submission that the mother would have felt that the judge was annoyed with her counsel and that this annoyance influenced the judge's approach to her case and impeded the presentation of it by counsel on her behalf. 

…In reaching the conclusion, as I have done, that the mother's complaints that the hearing was unfair are made out, I have been influenced not only by the extent of the judge's intervention in the cross-examination of the father but also by the very unhappy start to the hearing. It is not difficult to accept that the mother's confidence in her counsel's ability to put forward her case to the judge would have been undermined by the judge's approach to Ms Toch.

 

In Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720, the court of Appeal heard an appeal from Mr Justice Peter Smith (a High Court Judge). One of the parties had asked him to recuse himself (stand down) from the case on the grounds of an appearance of bias.The appeal court was not impressed with how he handled the hearing and allowed the appeal. The transcript of the hearing was crucial in demonstrating that the decision itself was biased.

We have a transcript of the hearing, which does not make entirely happy reading.

…I am bound to say that those exchanges seem to me to be somewhat extraordinary. In my judgment, Mr Crampin was entirely justified in saying that the judge was in the process of giving evidence. The judge's approach was quite wrong. It is one thing to test counsel's submissions as a judge. It is quite another for a judge to give evidence of fact. 

…The judge's contribution to these exchanges seems to me to be intemperate. In short, the cross-examination of Mr Twigden and the approach adopted by the judge in the course of Mr Crampin's submissions provides strong support for Mr Flint's submissions that the fair-minded and informed observer having considered the facts would conclude that there was a real possibility that the judge was biased against AG and its partners, one of whom is the first claimant in the application. When this evidence is put together with the content and tone of the emails sent by the judge that I quoted earlier, I am quite satisfied that this is a case in which the judge should have recused himself. This is not to my mind a case which is close to the borderline but a case in which there is no doubt that the test laid down in the authorities is satisfied. I should add by way of postscript that to my mind Mr Crampin behaved entirely appropriately throughout.

It may well be that the judge became somewhat carried away in the heat of the argument. But for the reasons I have given, I would hold that his attitude throughout, from the emails at the end of May, during the hearing on Friday and in his judgment show that the test for apparent bias is satisfied. As the reviewing court, this court is in a position to form its own view. I have concluded that in all the circumstances, a fair-minded and informed observer would conclude that the judge was biased against AG and its partners, including Mr Howell. It was for that reason that I concluded on Monday that the appeal should be allowed.

A decade later in a case involving the same judge, the Court of Appeal heard another appeal involving a recusal application : Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz [2016] EWCA Civ 556. That recusal application itself arose from a case involving British Airways in 2015 (Emerald Supplies Ltd v British Airways [2015] EWHC 2201 (Ch)), where the judge had had to recuse himself after his luggage had been lost on a flight he had taken with that airline, which David Pannick QC (who had at one stage acted in that case) described in an article he published as follows :

The transcript of the recusal application is extraordinary. Jon Turner, QC, for the airline, began by politely stating his client’s concern. The judge intervened: “Right, Mr Turner, here is a question for you. What happened to the luggage?” Mr Turner responded that his clients would deal with such a personal complaint in the ordinary course of business and not in these proceedings. The judge was not satisfied: “In that case, do you want me to order your chief executive to appear before me today?”

Mr Turner patiently replied (his submissions were a model of courtesy and focus in very difficult circumstances) that if the judge would permit him to develop his argument he would contend “that that would be an inappropriate mixture of a personal dispute...”. The judge interrupted: “What is inappropriate is the continued failure of your clients to explain a simple question, namely what happened to the luggage?” After a lot more of this, the judge reluctantly agreed to stand down from the case. He said that there were no grounds for BA’s application but its “attitude” left him with no alternative.

There are a number of troubling features about this unhappy episode. First, the transcript repeatedly confirms what the judge refused to acknowledge: that his personal irritation (perhaps justified) was affecting his judicial responsibilities and made it impossible for him fairly to hear the BA proceedings…

Second, there is the inexcusably bullying manner and threats: “What has happened to the luggage? ... I will rise until 12.45 and you can find out... Do I have to order you to do it, then?... I shouldn’t make any preparations for lunch because you are going to be sitting through.”

Third, there are the judge’s arrogant comments concerning the decision of the Court of Appeal in 2007...

On hearing about this latest episode, no one at the bar or on the bench would have said, “What, Mr Justice Peter Smith? Surely not?” Litigants are entitled to a better service than this. The reputation of our legal system is damaged by such behaviour. The Lord Chief Justice should consider whether action to address Mr Justice Peter Smith’s injudicious conduct has, like his luggage, been delayed for too long.”

This article had prompted the judge to write a very cross letter to Pannick’s chambers saying that he would no longer support them. In this case another member of Pannicks’ chambers was acting for one party, and so they applied for his recusal as it was felt the judge would be unable to deal with the case in an unbiased way. In their judgment in the Harb case the Court of Appeal set out the article in full, transcript extracts and all. They had not been challenged. The Court of Appeal were not impressed. The judgments and transcripts in these cases are quite extraordinary reading.

See also this case : A v R & Anor [2018] EWHC 521 (Fam), in which the appeal judge read a transcript of the hearing and made a point of criticising the advocates for arguing across one another during the hearing.

It is a noteworthy feature of the transcript of the hearing before the District Judge that, as was to become a feature of the transcript of the hearing before the learned Judge, counsel constantly interrupted each other…without demur from the District Judge… Indeed, at times the transcript appears to show simply an argument between counsel with no input from the District Judge. This conduct continued until the District Judge decided that enquiries should be made as to whether the learned Judge could take the case. The net result of the way this part of the hearing was conducted meant that no party ever got to the point of concluding a complete, focused and structured submission on any issue.

A reminder that it is not just the judge’s conduct which might be captured and later considered by an appeal court.

 

Although none of these examples is of an appeal court comparing an approved transcript of judgment with the audio recording or unamended transcript of the judgment as delivered it is clear that appeal courts are prepared to go back to the source material in order to deal with allegations that form part of an appeal that a judge has behaved inappropriately, and there is no reason why they would not extend this approach to listening to a recording of a judgment as delivered or obtaining the unedited transcript from the transcription company or court staff who would have originally received it.

 

[Update, afternoon of 6 Jan : Thanks to @fitzroybaggers who has DM'd me from an exotic location to remind me of the case of Duo v Duo [1992] 3 All ER 121, where Lord Donaldson MR said :

I should say that the learned judge has struck out those last words in his correction of his judgment, but I feel that was because he was perhaps regretting having said it rather than challenging that they were said. Certainly, they occur in the notes taken by those present.

That is of course the sort of thing Louise was worried about in her tweet :

'Oh you know, realising in reading back a transcript that you sounded intemperate, that your reasons wouldn’t stand up, that by replacing a word or two here or there that you might not sound quite so harsh. The little replacements and avoidances that are so easy to do.'

This single example of it was in 1992. I cannot think of any other reported case in which similar edits are flagged.  Good notes made by lawyers remain important.]

I’ve seen some commentators directly suggest that a judge might tamper with an audio recording to conceal their inappropriate changing of their reasons – firstly recordings once downloaded at the end of the day are stored by court staff. I very much doubt that most judges would have the knowhow to locate the disc, or to access and edit it – if they even had the relevant keys and passwords (which I doubt). And the parties’ recollection and their lawyers notes would still exist. It would be very stupid and very serious judicial misconduct to behave in this way and would be potentially career ending. It would be far easier for a judge to simply say they had changed their mind and give fresh reasons. And one view is that the examples above of judges and lawyers occasionally behaving poorly are rare exceptions precisely because everyone involved knows that they are being recorded and if they shout, swear or behave like an idiot there it will come back to bite them. Even in a private family court without journalists watching what is happening (they are rarely in attendance even though permitted and are restricted in what they may publish anyway) judges are acutely aware of scrutiny – by professional colleagues, by litigants, through recording and by appeal courts and judicial complaint processes – and none of them want to be the judge whose words are read into an appeal judgment as an example of inappropriate, unfair or biased conduct.

 

Undoubtedly these processes are less than transparent to the uninitiated or the unrepresented. It is well known that even accessing a transcript can be a huge headache for litigants in person who wish to pursue an appeal but who don’t understand the process or forms, or who can’t afford the transcription fee. [Continuation of update 6 Jan : Litigants who are unrepresented and worried that their own notes may not be accepted if they conflict with those of a judge may wish to consider either applying to listen to the audio recording OR asking for confirmation from other lawyers involved as to what their notes say. Lawyers have a duty to cooperate with such requests where a dispute arises, and a duty not to mislead in responding.]

No more apologies

Gosh, it's been eons since I've made space for poor old Pink Tape. But I'm not apologising. This year I seem to have spent most of my time neglecting Pink Tape or apologising for neglecting it and promising I'll try harder.

But I'm not going to try harder. I WANT to find time for Pink Tape. And I will. But I'm not going to wring my hands, chase hit rates or make crappy apologetic posts for the sake of posting something. When I have something to say and the time to say it I'll say that thing.

2018 was a year of constant, somewhat frenetic juggling of impossible commitments and pressures. We spent six months living away from home due to building works (and even though we were lucky enough to be able to camp with fantastic extended family I have learnt that change is harder for some children to handle than others), I spent a significant portion of time fretting over 3 or 4 particularly demanding cases, and spending nights away from home with work - all whilst being constantly asked to make decisions about building materials, electrical works and decor in between witnesses - all whilst trying not to blow the budget whilst wondering when I might next get paid. I finished and published a book, and the demands of The Transparency Project have grown and grown. All good and exciting things - but exhausting nonetheless. And in amongst those balls hurtling through the air, each depending on being caught by me are my family and my mental health. When you sit down for just one moment and stop to think - it hits you that these balls are too precious to drop.

I've spent the best part of two weeks at home, with friends and family, scarcely switching on my laptop (just as well the poor thing needs a rest it is near burnout too!), and generally eating and laughing myself into a stupor. My family have needed it. I have needed it. And whilst I can't fit into any of my clothes I do feel refreshed and that my priorities have been reset. I may be about to launch back into the frenzy with a four day trial on 2 January (when did courts start sitting on 2nd January for goodness sakes?) but I am determined that 2019 is not going to eat me up and spit me out the way that 2018 has done - to me and to a number of others I love and respect. I LOVE my job, but 2018 has made me realise more than ever that if I want to keep doing it long term and want to keep doing it well I have to take time to breathe, and I have to do a bit less of it.

So, maybe fewer posts here - but hopefully posts worth waiting for...

Here is to a fabulous 2019 to all who read this blog. Look after yourselves in 2019 and do not let the system eat you up.

Before I leave you though, I thought I'd float a new year's resolution that myself and a mischievous friend thought up over the sloe gin when trying to work out how to make the many noble words spoken in 2018 about wellbeing into more than platitudinous crap -  would it be next level trolling or a harmless yet symbolic reminder to ourselves and The Man of the "workload challenges" faced by advocates, if all orders drawn by advocates at the request of the court in 2019 were prepared and lodged in green comic sans font? Because we're worth it.... (after all I'm pretty sure *someone* was trolling us with the inclusion of multicoloured fonts in the order templates)...