© 2024 by Michael Firth KC, Gray's Inn Tax Chambers
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Procedure.Tax
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P2: Draft decisions and finality
Decision becomes final upon publication
“I have mentioned above the absence in the tribunal rules of an equivalent to sealing a judgment. It seems to me, however, that public release of a decision, and its publication on the Chamber’s website, amounts, in practical terms, to the same thing. If one has to draw a line, and identify a “point of no return”, public release seems to me to be the obvious moment.” (HMRC v. Tager [2017] UKUT 84 (TCC), §29, Judge Bishopp).
No changes after publication unless through slip rule
“It is apparent from the authorities to which I have referred above that while amendments to a judgment or decision are permissible, indeed in some circumstances wholly desirable, between the sending out of a draft and handing down, and a change based on new evidence is permissible in limited circumstances, if the party seeking the change is able to satisfy the Ladd v Marshall conditions, or there is some exceptional 11 circumstance, as Peter Gibson LJ suggested, between handing down and sealing, change after sealing is not permitted and the aggrieved party must resort to an appeal. There is nothing in re L which suggests otherwise; although the Supreme Court made it clear that exceptional circumstances were not required, thus disapproving Peter Gibson LJ on that point, it did so in the context of an order which had not been perfected.” (HMRC v. Tager [2017] UKUT 84 (TCC), §30, Judge Bishopp).
Accordingly, no new evidence after publication
“For those reasons I have concluded, despite what I have said before, that I do not have the jurisdiction to admit the new evidence on which Mr Tager seeks to rely.” (HMRC v. Tager [2017] UKUT 84 (TCC), §31, Judge Bishopp).
But query whether earlier UT decision in the same case is binding authority for the opposite view:
“However, I recognise, as did Mr Yates, that the invitation was made in a decision (my second decision) which, like the first, has been released publicly, and published on the Chamber’s website, and that as a result it can be challenged only by way of appeal. The question nevertheless remains, assuming (contrary to what I have said) that I do have the jurisdiction to admit new evidence, should I exercise my discretion to do so?” (HMRC v. Tager [2017] UKUT 84 (TCC), §31, Judge Bishopp).
Clerical slip rule applies after finalised
“…I see no impediment to the use of rule 42, whose application is not limited to decisions which have not become final, however one defines that term.” (HMRC v. Tager [2017] UKUT 84 (TCC), §33, Judge Bishopp).
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FTT decision is final on all potential issues unless identified as in principle
"[173] (7) Finally, it is clear from Rules 35(2) and (3) of the FTT Rules that the effect of the Decision was final and binding on the parties...
8) (As Mr Baldry pointed out and Rule 35(2) clearly contemplates, the IP Appellants could have asked the FTT to exercise its case management powers under Rule 5(3)(e) to deal with the Miscellaneous Income Issue and the Sale of Occupation Issue as preliminary issues. But they did not do so and in the absence of such an application, we consider that the Decision finally disposed of all the issues in the IP Appeals." (HMRC v. Bluecrest Capital Management LP [2022] UKUT 200 (TCC), Leech J and Judge Herrington)
Estoppel if parties agreed decision would not be final
"If the parties had reached a clear agreement that the Decision would not be final and that the FTT would decide the Miscellaneous Income Issue and the Sale of Occupational Income as a matter of principle only, it is possible that we might have reached the conclusion that HMRC were estopped from arguing the contrary and that the FTT made an error of law in failing to reserve the Disputed Paragraphs for further decision. However, the IP Appellants did not argue that the conduct of HMRC gave rise to an estoppel or that they had waived compliance with Rule 5(3)(e) of the Tribunal Procedure Rules or that they had made a binding election to proceed on the basis that the Decision was not final and dealt with matters of principle only." (HMRC v. Bluecrest Capital Management LP [2022] UKUT 200 (TCC), Leech J and Judge Herrington)
Identify what reference to "in principle" was intended to mean
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"[175] Indeed, we are satisfied that there was no binding agreement that the IP Appeals would proceed on the assumption that the FTT would determine preliminary issues which were common to all of the partners by reference to a representative sample and we found nothing in the correspondence which ought to prevent HMRC from relying on the Decision as final before us now. We accept that HMRC’s Statement of Case referred to a “decision in principle”. But we also accept Mr Baldry’s submission that all that was meant by this was that the FTT would not be asked to deal with issues of calculation. Moreover, when HMRC served their Statement of Case the IP Appellants had already filed their Grounds of Appeal to the FTT and they made no reference to the issues raised in the Disputed Paragraphs. If they had wanted the FTT to decide those issues on a representative basis, they could and should have identified which issues of principle the FTT would be asked to decide and which left over for later determination and then sought to agree them with HMRC before asking the FTT to make a direction under Rule 5(3)(e)." (HMRC v. Bluecrest Capital Management LP [2022] UKUT 200 (TCC), Leech J and Judge Herrington)
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Obliged to comply with FTT decision unless and until varied or set aside
"[56] In the light of this consistent body of authority stretching back to 1846, it is apparent that the alleged invalidity of the order made by the First-tier Tribunal had no bearing on the challenge to the decision of the Secretary of State. Even assuming that the order was invalid, the Secretary of State was nevertheless obliged to comply with it, unless and until it was varied or set aside. The allegation that the order was invalid was not, therefore, a relevant defence to the application for judicial review of the Secretary of State’s decision. As there was no other basis on which the Court of Appeal reversed the Upper Tribunal, and the Secretary of State does not ask the court to dismiss the appeal on other grounds, it follows that the appeal should be allowed." (R (oao Majera) v. Secretary of State for the Home Department [2021] UKSC 46)
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This is subject to statutory modifications.
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Draft judgment not an opportunity for further argument
“For some time now the practice of the High Court and the Court of Appeal has been to submit reserved judgments to the parties in draft for correction and then to produce an approved version of the judgment at the time of making the relevant order. This practice, which was designed in part to allow obvious factual errors to be corrected before the final public version of the judgment was produced, is sometimes used by one or other of the parties to advance further arguments designed to get the Court to alter the substance of its reasons and even the result. For the most part, this practice has been rightly deprecated: see Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002.” (Re A (A child) [2014] EWCA Civ 871, §25).
“…it should also be emphasised that the opportunity to propose corrections of this kind is not an opportunity to challenge findings on which the judge has made a deliberate decision” (Re A (A child) [2014] EWCA Civ 871, §34).
Usually
“None of the points made brought the case anywhere near being within the very narrow range of circumstances in which it is proper to invite the court to defer handing down judgment and to re-open the case for further argument. In the circumstances we declined the request made on behalf of Mrs Haq, and I need say no more about the points sought to be opened up for further argument.” (Haq v. Island Homes Housing Association [2011] EWCA Civ 805, §88).
But is an opportunity for error correction
Positively encouraged
“A party will routinely have the opportunity to draw to the attention of the Court any factual errors in a judgment before it is finalised. As My Lord has noted, that is positively invited where the judgment is pre-circulated in draft in accordance with the modern practice where judgment has been reserved.” (Re A (A child) [2014] EWCA Civ 871, §34).
Judges should correct errors when pointed out unless good reason not to
“I start from the elementary proposition 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. It should not normally be necessary for a party to bring an appeal to correct an error, if it turns out that the parties and the judge agree that there is an error and that a correction should be made.” (Space Airconditioning plc v. Guy [2012] EWCA Civ 1664, §53).
Both parties to given opportunity to make submissions before error corrected
“Before the correction is made the judge should obviously give both sides an opportunity to make submissions on whether there is a valid objection to a proposed amendment of the judgment.” (Space Airconditioning plc v. Guy [2012] EWCA Civ 1664, §53).
Ultimately decision to correct or not is one for judge (dissatisfied party should appeal if possible) –
“In that case the judge did not hand down her judgment for correction in the usual way and, when the error was pointed out before the order was made, she refused to correct it. The decision casts no doubt, however, on the principle that the decision whether to correct is one for the judge and that once the order is made the only remedy is an appeal unless the slip can be described as accidental.” (Re A (A child) [2014] EWCA Civ 871, §27).
UT responding to claim it failed to accurately record submissions
"[118] In accordance with the usual practice, we circulated our decision, in draft form, for the parties to have the opportunity to suggest typographical corrections. On Prudential’s side the corrections were provided by Prudential’s solicitors, who included with their corrections a series of assertions that we had failed accurately to record the submissions of Ms Yang in a number of paragraphs of our draft decision.
[119] We do not regard any of these assertions as well-founded but, for the sake of completeness, we will, as briefly as the assertions allow, deal with these assertions. For the avoidance of doubt the paragraphs of our draft decision which were the subject of these assertions have not changed in this final version of our decision." (HMRC v. The Prudential Assurance Company Limited [2023] UKUT 54 (TCC), Edwin Johnson J and Judge Thomas Scott)
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Duty of party to draw Court's attention to certain alleged procedural failings
"[20] As Wall LJ made clear, it is the duty of counsel to raise with the judge, when a draft judgment is circulated, matters of the kind referred to by Wall LJ. We would respectfully suggest that it is important to read the reference, at [38], to "any alleged deficiency in the judge's reasoning process" in its proper context. We do not read anything said by Wall LJ as undermining the clear dividing line, drawn by Smith LJ in Egan, between attempting to re-argue the issues, on the one side, and addressing a procedural failing such as the judge deciding a case on the basis of a point not properly argued or an authority which was not considered." (HMRC v. Marlborough DP Limited [2024] UKUT 103 (TCC), Edwin Johnson J and Judge Brannan)
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- Applies to decision based on a point not argued
"[23] In any event, in his judgment on the appeal Lord Neuberger MR took some time, before considering the two grounds for the judge's decision, to set out the proper approach for a judge to adopt "when he is proposing to decide a case on the basis of a point which was not argued, or in a way, or to an extent, which is more favourable to a party than the case which that party advanced in court."; see the judgment at [13]. At [14]-[18] Lord Neuberger MR gave the following guidance:...
[24] In terms of how a judge should ensure that the parties have the opportunity to deal with a point thought of by the judge, Lord Neuberger gave the following further guidance at [19]:
"[19] Where (as here) the judge's point is crucial in the sense that, without it, the decision would be different, it is obviously of particular importance that the parties are given a full opportunity to deal with it. Where the point represents a further reason to those which have been advanced and accepted by the judge as reasons for finding for the successful party, it would still normally be fair and sensible to give the parties an opportunity to deal with it, but, in such a case, a relatively short procedure may be justifiable."
...
[27] The circumstances of the present case are very different to Potanina, but we accept that the principles of fairness identified by Lord Leggatt are clearly applicable, by analogy, to a case where a court or tribunal is said to have made a decision on the basis of a point or an authority on which the parties have not had the opportunity to make submissions." (HMRC v. Marlborough DP Limited [2024] UKUT 103 (TCC), Edwin Johnson J and Judge Brannan)
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- Does not apply where the Court applies a test different from that advanced by either party if test is within spectrum under consideration
"[37] It is fair to say that HMRC did not argue that the test of connection was a strong or direct connection. HMRC argued that the test of connection was looser than this. This was hardly surprising. London Luton admits of the possibility of a test of connection having a spectrum of meanings, from a strong and close nexus to a weak and loose one. Our decision that a strong and close nexus was required, for the purposes of section 554A(1)(c), was at the end of the spectrum most favourable to MDPL. The relevant point for present purposes is however that the arguments of the parties over the correct test of connection and over the application of that test to the facts of the present case took place by reference to the spectrum of possible meanings of connection in London Luton. MDPL's case on the facts was put by reference to and against the backdrop of that spectrum. In these circumstances we do not accept that we have come up with a new test of connection, which was not addressed in the submissions of the parties at the original hearing. Even if MDPL had not addressed the test of connection that we adopted (and which was in MDPL's favour), the strong or direct connection test and its application to the facts was plainly in issue before us. In fact, and for the reasons which we have just explained and which we shall explain further when we come to consider the next difficulty with MDPL's case, this question was addressed by MDPL. If however it is assumed that there was a failure by MDPL to address this question, there would not, in the circumstances, have been a procedurally unfair deprivation of the right to be heard.
[38] Putting the matter another way, the present case does not fit into the category of cases where one party argues for construction A of a statutory test, the other party argues for construction B of a statutory test, and the court or tribunal comes up with its own construction C of the statutory test, with construction C being neither addressed nor anticipated in the submissions of the parties. The argument over the test of connection in the present case bears no resemblance to this situation." (HMRC v. Marlborough DP Limited [2024] UKUT 103 (TCC), Edwin Johnson J and Judge Brannan)
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- But query whether the party has reserved its position in such circumstances
"[52] MDPL was therefore on notice that the case of HMRC was that we should proceed to re-make or remit, if we accepted that the FTT had applied the wrong test. MDPL's case in response to this part of appeal featured, prominently, the submission that HMRC had failed to identify what the correct test of connection was. In these circumstances we are bound to say that it seems to us that it was for MDPL to put us on notice, at the original hearing, that it might be necessary for MDPL to be heard further (assuming the setting aside of the Decision), before we remitted or re-made the Decision.
[53] In fairness to MDPL and to [counsel for the taxpayer], it should be recorded that a proviso of this kind was included in MDPL's written submissions in the appeal. The proviso can be found in paragraph 26 of the submissions which MDPL filed in response to our invitation to the parties to make further submissions on the authorities which were not cited to us at the original hearing but which we regarded as relevant to the appeal. The proviso assumed however a situation where the Tribunal decided on a different test of connection, in respect of which MDPL would not have had the opportunity to make submissions as to the application of that test "because it does not know what it is". For the reasons which we have explained, this is not the position in the present case. The test of strong or direct connection derives from London Luton, and was an integral part of the arguments on the Connection Issue at the original hearing." (HMRC v. Marlborough DP Limited [2024] UKUT 103 (TCC), Edwin Johnson J and Judge Brannan)
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Accidental slips and obvious errors
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“The Tribunal may at any time correct any clerical mistake or other accidental slip or omission in a decision, direction or any document produced by it, by--
(a) sending notification of the amended decision or direction, or a copy of the amended document, to all parties; and
(b) making any necessary amendment to any information published in relation to the decision, direction or document.” (FTT Rules, r.37)
- FTT can amend for slips of its own initiative
"[57] (1) There is no restriction on when the FTT can exercise the power under Rule 37. The FTT can amend a decision under Rule 37 of its own initiative or following application or notice by the parties. Rule 37 is not limited to cases where there has been an application for permission to appeal and the FTT is satisfied that the decision contains an error of law. There is no procedural requirement as to giving notice to the parties before making any changes. The restriction on the FTT’s power to amend a decision under Rule 37 is one of substance – the power is to “correct any clerical mistake or other accidental slip or omission”."(Outram v. HMRC [2024] UKUT 203 (TCC), Judges Zaman and Greenbank)
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- For cases where the decision does not reflect what the Tribunal intended
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"[23] The essential distinction to bear in mind in considering the application of the slip rule, in any of its legislative formulations, is between the case where the order in question does not express what the Court actually intended at the moment of promulgation and the case where it does express what the Court intended at the time but it subsequently appreciates that it should have intended something different: see, most recently, para. 18 of my judgment in AS (Afghanistan) v Secretary of State for the Home Department [2019] EWCA Civ 208, [2019] 1 WLR 3065 (p. 3071C). As I say there, how the distinction applies in a particular case may not always be straightforward, but the concept is clear. The proposition which the UT drew from the case to which it referred and from the White Book commentary, namely that the slip rule "cannot be used to change the substance of a judgment or order", is perfectly apt as a reference to the second of the two classes of case that I have mentioned; but it appears from the UT's actual decision that it understood it to mean that the slip rule could not be used in a case where the correction would produce a decision with the opposite effect to that promulgated. With all respect, that is simply wrong. In the case of a simple failure of expression – most obviously a straightforward slip of the pen – the error can and should be corrected even if it alters the outcome (as initially expressed) by 180°." (Secretary of State for Home Department v. Devani [2020] EWCA Civ 612, Underhill LJ)
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- Correcting misunderstanding of the evidence by the Judge that both parties agree on
“I am willing to adjust the inheritance tax penalty in order to correct the error in relation to the value of the deceased’s house, as I have mentioned above, as well as the other minor adjustments which lead to a revised figure of £1,000,210. I direct, therefore, that the penalty be reduced from the figure of £1,171,020 to £1,000,210. I make that adjustment in accordance with rule 42; I declined in my second decision to exercise that power because of a disagreement between the parties about the adjustment to be made but as they are now agreed that at least this adjustment is appropriate, and it is manifestly unfair to maintain a level of penalty based on a misunderstanding by the judge, I see no impediment to the use of rule 42, whose application is not limited to decisions which have not become final, however one defines that term.” (HMRC v. Tager [2017] UKUT 84 (TCC), §33, Judge Bishopp)
- Not to be used where FTT substantively misquotes an authority on the legal test
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"[21] In the amended Decision, this sentence was removed. The FTT relied upon rule 37 of the Tribunal Procedure (First-tier Tribunal)(Tax Chamber) Rules 2009 to effect this change. However, rule 37 provides for the correction of clerical mistakes or other accidental slips or omissions in a decision. We consider the FTT’s reliance on this provision to have been inappropriate. The mis-quotation of Lord Loreburn did not involve the introduction of a typographical error or some other immaterial clerical mistake into the Decision. The misquotation involved a substantive addition to the test propounded by Lord Loreburn, which the FTT was purporting to apply." (Development Securities Plc v. HMRC [2019] UKUT 169 (TCC), Marcus Smith J and Judge Brannan)
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- Not to be used for substantive changes to reasoning
"[69] The parties disagreed as to the significance of these changes. Ms Choudhury submitted that these changes could, in any event, have been made under Rule 37 or following a review relying on s9(4)(a). We do not accept that submission. They are both substantive changes to the FTT’s reasoning:
(1) The change of language in [143] from the message (from Montpelier) about trading “does not appear to have been understood by them” to “does not appear to have been acted upon by them” is significant. It is part of the FTT’s findings as to what the Appellants did or did not do, and is relied upon by the FTT (albeit without express crossreference) in its reasons for concluding that the conduct was deliberate.
(2) The deletion in [149] of “In any event, the losses could only be created if there was a loan” initially appears very significant, particularly in the light of the Appellants’ submissions on Grounds 1 and 4 which included that the FTT’s findings in relation to the loans revealed, in the Appellants’ submission, that the FTT had failed to understand the arrangements and the basis on which the losses were expected to be claimed. However, we recognise that at [171] of the Revised Decision the FTT states “Crucially the appellants do not and never did have any liability to repay a purported loan. Therefore they did not incur expenditure and they incurred no losses that were capable of being relieved.” This makes substantially the same point as that which had been made by the deleted language and we consider that this reduces the significance of the deletion in [149]." (Outram v. HMRC [2024] UKUT 203 (TCC), Judges Zaman and Greenbank)
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- FTT should make it clear whether changes made under slip rule or following review
"[63] Having considered the PTA Decision, the FTT’s letter of 25 September 2023 and the Revised Decision, we have concluded that the Original Decision was reviewed by the FTT under Rule 41 and not Rule 37. We recognise that the FTT’s communications with the parties created unfortunate and unnecessary confusion on this point:...
[64] We describe this confusion as unnecessary as the FTT had clearly informed the parties that it was proposing to review the Original Decision and subsequently sent them in draft the changes it proposed to make, and on which they made representations. The process being followed was that in Rule 41. Irrespective of confusion caused by other communications, we answer the question whether the Revised Decision was amended under Rule 37 or Rule 41 by reference to the Revised Decision itself – that document was released to the parties by the FTT and is the decision notice containing the FTT’s written findings and reasons for the decision. The Revised Decision states expressly that it was amended pursuant to Rule 41 of the FTT Rules on 21 September 2023, and has an amended release date of 25 September 2023. We are satisfied that the Revised Decision was, as it says, amended following a review under Rule 41." (Outram v. HMRC [2024] UKUT 203 (TCC), Judges Zaman and Greenbank)
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- Refusal to correct not appealable
“…even after the judgment is finalised a judge may have the power to correct obvious errors (though it does not follow that a refusal to use that power is appealable – see Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569).” (Re A (A child) [2014] EWCA Civ 871, §34)
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Jurisdiction to alter decision that is not final
“These authorities…make it clear that the court has long possessed the jurisdiction…under certain circumstances to change its mind on a conclusion stated in an unperfected judgment, even to the extent of reaching an opposite result, rather than simply passing judgment and allowing the aggrieved party to take the matter to appeal. I have extracted the following guidance in approaching the task facing me from the material put before me by counsel:
(i) The court is guided first and last by consideration of the overriding objective of the CPR;
(ii) There is a ‘real public interest in finality to litigation’. An applicant for reconsideration of an unperfected judgment must demonstrate that there are exceptional circumstances or at least strong reasons why the jurisdiction should be exercised. This will depend on the circumstances of the case.
(iii) The jurisdiction is to be exercised sparingly.
(iv) The mere fact that a judge has missed a point or overlooked say, a particular argument did not of itself justify a review or even the making of an application for a review of the judgment. The error had to be of such consequence that it could well have led to a wrong conclusion on a significant issue. Even so, this of itself did not automatically justify review.
(v) Such an application involves an exercise of the court’s discretion. Moreover this is a discretion which is unfettered by statute.
(vi) The appropriate time to apply for the exercise of the Barrell jurisdiction is before judgment was handed down.
(vii) Fearing a plethora of such applications, I detect from the authorities a palpable discouragement to permit dissatisfied litigants even to apply for Barrell jurisdiction. The normal avenue by which to ventilate dissatisfaction with a judgment is to apply for leave to appeal it.” (Markem Corporation v. Zipher Ltd (No.2), [2004] RPC 11, §5);
Re Barrell Enterprises [1973] 1 WLR 19; Stewart v. Engel [2000] 1 WLR 2268; Kirin Amgen v. Transkaryotic Therapies Inc [2002] RPC 2; Royal Brompton Hospital NHS Trust v. Hammond [2001] EWCA Civ 778;
Strength of reasons required for re-opening issue depend on context
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"[37] It is not feasible to state such a test. An evaluative judgment has to be made, but it has to reflect and respect the importance in this context of the principle of finality. Structured forms of discretion, where a general discretionary power exists but the exercise of the discretion is governed by principles which accord priority and greater weight to some factors over others, arise quite often in the law: see, eg, the principles governing the grant of injunctive relief (American Cyanamid Co v Ethicon Ltd [1975] AC 396; Fourie v Le Roux [2007] UKHL 1; [2007] 1 WLR 320, paras 16, 25 and 30) and the exercise of discretion regarding service out of the jurisdiction (Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460; VTB Capital Plc v Nutritek International Corpn [2013] UKSC 5; [2013] 2 AC 337). A judge exercising such a discretion will err in law if he or she does not act in accordance with the principles which govern that exercise. In other contexts, by contrast, a discretion may be more open-ended, such as in relation to ordinary case management decisions, and leave greater choice to the judge to decide the weight to be given to each factor.
[38] The Pinnock case was concerned with an application by a local authority landlord to recover possession from an overstaying tenant and the power of a judge to refuse an order for possession if it would involve a disproportionate interference with the tenant’s right to respect for his or her private and family life and his or her home under article 8 of the European Convention on Human Rights. In the assessment of proportionality, in which a number of factors could be relevant, this court emphasised the very considerable weight to be given to the local authority’s property rights. It was not simply to be treated as one factor among many, all having more or less the same significance. In order to express this idea, rather than saying that an order for possession should be refused only in “very highly exceptional cases” (see para 51) the court instead spoke of the authority’s property rights being, “in the absence of cogent evidence to the contrary, … a strong factor in support [of the making of such an order] … in the overwhelming majority of cases” (para 53) and a matter “of real weight” constituting “a very strong case” for the authority in favour of obtaining such an order (para 54).
[39] In light of the importance of the finality principle in the present context, we consider that such formulae are appropriate to be used here. It is difficult to improve upon them. The question is whether the factors favouring re-opening the order are, in combination, sufficient to overcome the deadweight of the finality principle on the other side of the scales, together with any other factors pointing towards leaving the original order in place.
[40] It would also be wrong to attempt to identify a list of factors prima facie qualifying for inclusion as being in principle sufficient to displace the finality principle. Subsequent cases will always reveal that the list has proved to be inadequate, and the peculiarities of the present case could hardly have been imagined in advance. Some, such as judicial change of mind, have already been the subject of analysis in the authorities, but even they are of widely variable weight. It is perhaps easier to advance factors that will have no significant weight, such as a desire by counsel to re-argue a point lost at trial in a different way." (AIC Ltd v. Federal Airports Authority of Nigeria [2022] UKSC 16)
Exceptionality not the correct approach
“The Court of Appeal were, of course, applying an exceptionality test which in my view is not the correct approach. They were, of course, right to consider the extent to which the December decision had been relied upon by the parties, but in my view Rimer LJ was also correct to doubt whether anyone had irretrievably changed their position as a result….The majority were, of course, also right to stress the importance of finality, but the final decision had not yet been taken. I agree with Rimer LJ that no judge should be required to decide the future placement of a child upon what he or she believes to be a false basis.” (Re L and B [2013] UKSC 8, §29).
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Finality to be given central importance
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"[31] As stated in Sainsbury’s Supermarkets, the Overriding Objective implicitly affirms and reinforces the long-standing principle of finality, which had been an objective of civil procedure for at least 175 years: see eg Henderson v Henderson. Litigation cannot be conducted at proportionate cost, with expedition, with an appropriate share of the court’s resources and with due regard to the rules of procedure unless it is undertaken on the basis that a party brings his whole and best case to bear at the trial or other hearing when a matter in dispute is finally to be decided (subject only to appeal). As Lewison LJ said in FAGE UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] FSR 29, at para 114:
“The trial is not a dress rehearsal. It is the first and last night of the show.”
In that respect we are in full agreement with Coulson LJ, in the Court of Appeal at para 50, when he said:
“The principle of finality is of fundamental public importance … The successful party should not have to worry that something will subsequently come along to deprive him or her of the fruits of victory. The unsuccessful party cannot treat the judgment that has been handed down as some kind of rehearsal, and hurry away to come up with some new evidence or a better legal argument. … [T]here is a particular jurisdiction which permits a judge to change his or her order between the handing down of the judgment and the subsequent sealing of the order. But in most civil cases, the latter is an administrative function, and it would be wrong in principle to allow parties carte blanche to take advantage of an administrative delay to go back over the judgment or order and reargue the case before it is sealed. Hence it is a jurisdiction which needs to be carefully patrolled.”
[32] This means that, on receipt of an application by a party to reconsider a final judgment and/or order before the order has been sealed, a judge should not start from anything like neutrality or evenly-balanced scales. It will often be a useful mental discipline, reflective of the strength of the finality principle, for the judge to ask herself whether the application should even be entertained at all before troubling the other party with it or giving directions for a hearing. It may be a perfectly appropriate judicial response just to refuse the application in limine after it has been received and read, if there is no real prospect that the application could succeed. Judges should not re-open proceedings just to allow debate on the point if it is already clear that the judgment or order should not be re-opened. That would defeat the Overriding Objective in the CPR that cases be decided “justly” and “at proportionate cost”.
...
[45] But we do consider that a fair, even generous, reading of the judgment reveals that the Judge did not give the finality principle the central importance which it deserved, all the more so because the Enforcement Order constituted a final judgment for AIC on the claim which it had brought by its proceedings, subject only to appeal..." (AIC Ltd v. Federal Airports Authority of Nigeria [2022] UKSC 16)
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Must be based on something more than second thoughts on material already in play
“The examples given by Neuberger J (as he then was) in In Re Blenheim (Restaurants) Ltd, The Times, 9 November 1999, were:
"... a plain mistake by the court, the parties' failure to draw to the court's attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given."
Whilst I accept that this is not to be treated as a closed list of categories, I consider that they are all examples of situations where either something has obviously gone wrong or relevant material was overlooked through no fault of the parties. In my view they do not sit easily with the situation where a party knows the relevant facts (or, where appropriate, the relevant law) but simply fails to appreciate a potential legal consequence of the matters of which it is aware…It therefore seems to me that in principle there has to be something more than a post-judgment second thought based on material that was already in play. If it were otherwise, any fresh point that occurred to a party following the handing down of a judgment would entitle the party to require the court to hear further submissions with a view to revisiting the judgment. That would then become the rule rather than the exception.” (Heron Bros Ltd v. Central Bedfordshire Council (No.2) [2015] EWHC 1009 (TCC), §§16 – 18).
Demonstrable error should normally be corrected
“Third, it follows that if a draft judgment contains a demonstrable error of fact, it is open to a judge to correct it. Not only is this so, but I would have thought he or she should normally do so. Otherwise the judgment will be handed down despite containing a factual error. If the error makes no difference to the result, there is no reason not to correct it; if however it does make a difference to the result, to decline to correct it would mean the judgment was flawed, and no doubt lead to an appeal where one might otherwise have been unnecessary.” (R (Veolia ES Landfill Ltd & another) v HMRC [2016] EWHC 1880 (Admin), §225, Nugee J).
Relying on new evidence: exceptionality or Ladd v. Marshall
“It is apparent from the authorities to which I have referred above that while amendments to a judgment or decision are permissible, indeed in some circumstances wholly desirable, between the sending out of a draft and handing down, and a change based on new evidence is permissible in limited circumstances, if the party seeking the change is able to satisfy the Ladd v Marshall conditions, or there is some exceptional circumstance, as Peter Gibson LJ suggested, between handing down and sealing, change after sealing is not permitted and the aggrieved party must resort to an appeal.” (HMRC v. Tager [2017] UKUT 84 (TCC), §30, Judge Bishopp).
“It is not in the interests of efficient case management for a litigant, having seen from a draft judgment in detail why he has lost (or is about to lose), to be permitted to try and make good any gaps that the judge has found in his case by new evidence or argument. The trial is the opportunity for a litigant to put forward his case and the evidence he relies on; trial is not, and should not be allowed to become, an iterative process. That is not to say that there may not be circumstances where fresh evidence can be admitted after trial (and even after judgment has been handed down), but such applications are rare and not to be encouraged: see Charlesworth v Relay Roads [2000] 1 WLR 230.” (R (Veolia ES Landfill Ltd & another) v HMRC [2016] EWHC 1880 (Admin), §226, Nugee J).
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“even if the new documents are said to be produced under a continuing duty of disclosure, the claimant cannot now rely on further documents without permission: r.31.21. I should regard it as wholly wrong, as being inconsistent both with the well-known purpose for which draft judgments are circulated and with sound case-management and discipline in litigation, to permit the claimant now to re-open the issue of causation and adduce further evidence in that regard.” (Altus Group (UK) Ltd v. Baker Tilly Tax and Advisory Services LLP [2015] EWHC 12 (Ch), §190).
“… because it is inherently contrary to the public interest and unfair on the other side that an unsuccessful party should be able to raise new points or call fresh evidence after a full and final judgment has been given against him, it would generally require an exceptional case before the court was prepared to accede to an application where the applicant could not satisfy the three requirements in Ladd v Marshall.” (Charlesworth v Relay Roads [2000] 1 WLR 230 at 238 per Neuberger J).
No new evidence where it is the party’s fault it was not produced earlier
“I have reached the conclusion that the overriding objective cannot be prayed in aid by a litigant who has brought an adverse result on himself by his own failings, including, as regards the inheritance tax notice, a failure to comply with an undertaking and correspondingly his own breach of rule 2(4).” (HMRC v. Tager [2017] UKUT 84 (TCC), §32, Judge Bishopp).
No necessity for a hearing
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“…although the Court can in an appropriate case be invited to look again at a draft judgment, the Court is not obliged to hold a hearing. If having looked at what it is invited to do and why, the Court sees no reason to alter the draft, it must be open to the Court to decline the invitation without more.” (R (Veolia ES Landfill Ltd & another) v HMRC [2016] EWHC 1880 (Admin), §227, Nugee J).
Breach of embargo on draft judgment
Purpose of embargo
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"[41]...Furthermore, it was for the specific purposes of enabling the parties to make suggestions for the correction of errors, prepare submissions on consequential matters and to prepare themselves for the publication of the judgment. It is important that the published text of a judgment of the court should be accurate, complete and in its final form. This restriction was clearly necessary in order to achieve the legitimate objective of maintaining the authority of the judiciary and judicial decisions and was a proportionate means of achieving that result." (HM Attorney General v. Crosland [2021] UKSC 15)
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"[24] It is important, therefore, to understand why judgments are handed down in draft under embargo in the first place. Some insight is gained from the passage cited above from Crosland. That suggests that the process is to enable the parties to make suggestions for the correction of errors, prepare submissions and agree orders on consequential matters and to prepare themselves for the publication of the judgment. The process is not for any other purpose and dissemination of the judgment itself or its substance beyond those that I have specifically mentioned is forbidden (unless the court expressly gives consent). For a fuller explanation of the history and rationale of the court's practice, see Woods: Paragraph 168: A Cautionary Tale Concerning the Circulation of Draft Judgments to Counsel, 2017, Oxford University Comparative Law Forum." (R (oao Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, Sir Geoffrey Vos)
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Contempt proceedings​
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[1] This application by Her Majesty’s Attorney General for permission to pursue an application for committal for contempt concerns an alleged breach of an embargo on publication of a judgment of the Supreme Court in R (Friends of the Earth Ltd) v Heathrow Airport Ltd [2020] UKSC 52; [2021] PTSR 190 by Mr Timothy Crosland, an unregistered barrister who represented the charity Plan B Earth in those proceedings.
...
[52] In these circumstances, we propose to deal with this matter by the imposition of a fine. In coming to a conclusion as to the appropriate level of fine, we have taken account of the fact that the respondent faces disciplinary proceedings before his professional body. We have also taken account of what the respondent has told us about his income. We therefore impose a fine of £5,000. That fine will be enforceable in like manner to a judgment of the High Court for the payment of money under section 16(1)(a) of the Contempt of Court Act 1981." (HM Attorney General v. Crosland [2021] UKSC 15)
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"[21] I should say that I have called this case into court because, amongst other reasons, the breaches that occurred here are not alone. I have become aware formally and informally of other breaches in other cases. It seems, anecdotally at least, that violations of the embargo on publicising either the content or the substance of draft judgments are becoming more frequent. The purpose of this judgment is not to castigate those whose inadvertent oversights gave rise to the breaches in this case, but to send a clear message to all those who receive embargoed judgments in advance of hand-down that the embargo must be respected. In future, those who break embargoes can expect to find themselves the subject of contempt proceedings as paragraph 2.8 of CPR PD40E envisages." (R (oao Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, Sir Geoffrey Vos)
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"[34]...In the course of the hearing there was discussion of Mr Clayton's conduct in discussing this case over dinner with the intermediary after he had received and read the draft judgment and been instructed to settle grounds of appeal but before the judgment had been formally handed down. We are not in a position to make any finding about this, except to say that it is unwise for a person in Mr Clayton's position to have any discussion about a case with any third party at a time when a judgment is subject to embargo." (Griffiths v. Tickle [2022] EWCA Civ 465, Warby LJ)
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Lawyers should not draft press releases during embargo (but party itself might be allowed to)
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"[26] Secondly, drafting press releases to publicise Chambers is not a legitimate activity to undertake within the embargo. It would be different if a corporate party wished to issue a press release immediately on hand down to explain to the public what had occurred in the judgment. But barristers (and solicitors) are not parties to the proceedings; they are legal representatives, who are provided with the draft judgment to make suggestions for the correction of errors and to prepare submissions and agree orders on consequential matters. They have no need to prepare themselves for the publication of the judgment, as an individual or other party might need to do. Of course, counsel and solicitors can properly assist and advise their client to make such preparations but that was not what happened in this case." (R (oao Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, Sir Geoffrey Vos)
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Limit the number of people with access to draft judgment
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"[27] Thirdly, too many people in Matrix seem to have had access to the summary contained in the press release. It should be sufficient for one named clerk to provide the link between the court and the barrister or barristers. Nobody else in the Chambers' administrative machine should have access to the draft judgment or any of the documents created in relation to it without there being a good reason, connected to one of the permitted purposes I have mentioned, for them to do so." (R (oao Counsel General for Wales) v. Secretary of State for Business, Energy and Industrial Strategy [2022] EWCA Civ 181, Sir Geoffrey Vos)
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