What counts is the judgement

Re A (A Child) [2014] EWCA Civ 871 concerned long fought proceedings between parents where, at an interim stage in proceedings, the father had asked HHJ Horowitz to alter what he had said in a 2011 judgement which he had not appealled against, and where his request for an alteration under the ‘slip rule’ had been made over two years after the judgement. The judge refused to alter his judgement; and Patten LJ (with whom Black and Underhill LJJ agreed) gave F permission to appeal but refused to allow F’s appeal.

He analysed the question as akin to the rule in Lake v Lake [1955] P 366 (considered recently in the Court of Appeal in Re M (Children) [2013] EWCA Civ 1170), namely that where a judge’s findings are not part of his reasons for his/her decision and would not therefore form a basis for appeal against a decision, then they would not be part of an formal application to amend under the slip-rule (as more fully explained in Cie Noga D’Importation Et D’Exportation SA v Australia & New Zealand Banking Group Ltd (No 3) [2002] EWCA Civ 1142 per Waller LJ [27] and [28]). Of the slip-rule application Patten LJ said:

[23] It seems to me that if a judge’s findings of fact are of the kind which are not to be regarded as forming part of his judgment so as to be amenable to appeal in themselves then this Court has no jurisdiction to entertain an appeal from a judge’s refusal to amend such findings in accordance with the criticisms of the affected party. Findings of that kind which cannot be said to form part of the judgment within the meaning of CPR 40.12 cannot be amended at any time under the slip rule and a judge’s refusal to accede to an application under CPR 40.12 is not in such circumstances open to challenge.

Black LJ then went on to explain further the meaning of ‘judgement’ and ‘order’ in the context of the rules as follows:

[38] … I add these few words only because the argument as originally presented to us proceeded, I think, upon the basis of what is perhaps an understandable confusion between two uses of the word “judgment” in an area of law and procedure which it is not easy for non-lawyers to understand. I offer the following very short explanation in what I hope will be found to be non-technical language but I stress that it is not intended to alter established legal principles.
[39] To many people, the word “judgment” signifies the oral or written judgment given at the end of proceedings in which the judge explains in a narrative form what he has decided and why. What I am now saying is a judgment in this sense. In contrast, the word is used in a different sense in, for example, CPR 40.12 and CPR 52.10(2)(a) which refer to “a judgment or order” meaning, to use lay language, the end product of the proceedings. The end product of this appeal is that the appeal is dismissed and that is what will be encapsulated in a formal order in due course. The end product of Judge Horowitz’s 2011 hearing was the financial orders that he then made.
[40] The correction that the father wished Judge Horowitz to make to his judgment was not “an accidental slip or omission in a judgment or order” within the slip rule contained in CPR 40.12. It was not a correction of the judge’s order or of the “judgment” in the sense in which that word is used in CPR 40.12. The father was seeking a correction (in his eyes) of the contents of Judge Horowitz’s judgment in the other sense.
[41] The slip rule not being available, and the judge having concluded his function in relation to the February 2011 decision, as Patten LJ says in §22 of his judgment, the only possible route of challenge to what the judge said was by way of an appeal against the “order or judgment made or given” by him (CPR 52.10(a)). Here again “judgment” has a restricted meaning as Patten LJ has explained and I am doubtful that it includes the aspects of Judge Horowitz’s judgment that the father sought to challenge….

In fact the references to which Black LJ refers are as follows:

Civil Procedure Rules 1998 r 40.12(1) (FPR 2010 r 29.16(1), to which reference should also have been made (since below these were family proceedings), is exactly the same) reads as follows:

Correction of errors in judgments and orders
(1) The court may at any time correct an accidental slip or omission in a judgment or order.

CPR 1998 r 52.10(2)(a) (as does FPR 2010 r 30.11(2)(a)) enables the appellate court to ‘affirm, set aside or vary any order or judgement made’ by a lower court.

This assessment unfortunately overlooks three further aspects of the question:

(1) An appeal is against a ‘decision’ of the lower court (see CPR 1998 r 52.2(1) and 52.4(2); FPR 2010 rr 30.2(1) and 30.4(2));
(2) A judge can change his/her mind up till such time as an order is actually sealed (Re L and B (Children) [2013] UKSC 8: it was all right for a judge to change her mind where an order had not been sealed); and
(3) What is the meaning of MFPA 1984 s 31F(6) in the family court:

(6)The family court has power to vary, suspend, rescind or revive any order made by it, including—
(a)power to rescind an order and re-list the application on which it was made,
(b)power to replace an order which for any reason appears to be invalid by another which the court has power to make, and
(c)power to vary an order with effect from when it was originally made.

It is beyond the scope of this note to try to answer (3).

If (2) happens it plainly creates its own special difficulties especially with the time for appeal, if from the court’s decision, has expired. What it suggests is that the judgement and the order for most practical purposes are two separate things.

By contrast, the decision, for most purposes – save where an order is not sealed – must surely be the date on which judgement is given? From this date time to appeal runs. It is against the judgement which a party appeals (the Lake v Lake point is that there is no point in appealing against an aspect of the judgement where the overall outcome of the case was success).

It is therefore the judgement that counts. This is the decision which gives rise to an appeal, and on which the appeal notice will be based. The order is the product of this. And if a judge changes his/her mind before the order is drawn, you would expect time to start to run again.

David Burrows
10 July 2014

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