Baker: Message needs to get through
The delivery of a judgment “is not a transactional process” and its contents are “not open to negotiation”, the Court of Appeal has warned, saying the clarification procedure was being misused in family cases.
Lord Justice Baker said it was “inappropriate to use a request for clarifications to reiterate submissions or re-argue the case, or to cite a part of the evidence not mentioned in the judgment and on the basis of that evidence ask the judge to reconsider the findings”.
He continued: “In my view it is also inappropriate to couple a request for clarifications with a warning that an application for permission to appeal will be made if the clarification is not provided. I regret to say that this case provides examples of all of these inappropriate requests.”
The danger was that “an unchecked and ill-disciplined process” may lead the judge to make statements by way of attempted clarification that “water down, undermine or even contradict findings made in the judgment”, Baker LJ said, which was precisely what the appellant local authority, supported by the child’s guardian, contended had happened in this case.
It followed a 14-day fact-finding hearing in care proceedings concerning a small boy, with the local authority admitting that it would not have appealed but for the clarifications.
The practice of seeking clarification was first recognised by the Court of Appeal in a civil case in 2002, while a practice note enshrined it in the family courts in 2011.
Dismissing the appeal, Baker LJ said it had become “increasingly common” for counsel at the conclusion of a fact-finding hearing in care proceedings to submit requests for clarification of the judge’s reasons.
“In some cases, the requests are entirely appropriate and not infrequently the responses obviate the need for an appeal. In a series of recent cases, however, this court has expressed concern about excessive and unnecessary requests for clarification.”
This case illustrated that the procedure was “still being misused”, the judge said. He stressed that a judgment need not address every point that arose and that any request for clarification must explain why it was material to the decisions that had to be taken in the proceedings. The parties should make the request jointly.
Concurring, Lord Justice Males acknowledge that counsel “may sometimes be on the horns of a dilemma”.
“If no request for clarification is made on those rare occasions when a judgment is patently inadequate, criticism may be made if a complaint of inadequate reasons is made for the first time on appeal.
“Nevertheless, this court has warned repeatedly against the inappropriate use of the ‘request for clarification’ procedure. It was suggested by counsel that the message may not have got through to family law practitioners as yet, but if that is so, it is high time that it did.”
