COMMON LAW DEMANDS REASONS FOR A JUDGE’S DECSION

Reasons required in a judicial decision

 

I had always thought it axiomatic that, in giving judgment, a judge must include reasons for his/her decision. When a district judge in the Family Court in Exeter recently turned down an application for costs in a financial relief case in two lines of text in the pre-amble to her one line order, and insisted on a formal application if more reasons were to be given, I was forced to justify my assumptions.

 

In general an order for costs in matrimonial finance cases cannot be made (FPR 2010 r 28.3(5)), save where ‘conduct’ is alleged (r 28.3(6)). What is to be taken into account as conduct is defined by r 28.3(7). The district judge merely said r 28.3(5) was ‘relevant’ – well obviously that was the case since it was a finance case – and that there was no conduct ‘having regard to FPR 2010 sec (sic) 28.3(7)’. That was that.

 

So why is it that a court – if such be the case – must give reasons for its decision? The main reason for reasons (other than good manners, it might be thought, where a party has gone to the trouble of putting a reasoned argument before the judge) was considered by the Court of Appeal in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Lord Phillips MR gave the judgment of the court, sitting with with Latham and Arden LJJ. The Court’s main bases for holding that a reasoned judgement should always be provided by the judge is that it is a component of justice to know how your arguments have been answered by the judge and to know whether you have a basis for appeal.

 

In English Lord Phillips’s starting point (at §6) was another decision of the Court of Appeal in Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 where Henry LJ (at 381) had stressed that the giving of reasons was a component of justice:

 

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.

 

Henry LJ went on, in Flannery, to stress the importance of balancing the parties’ respective arguments:

 

… Where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where, as here, there is disputed expert evidence, but it is not necessarily limited to such cases.

 

A fair trial; reasons at common law

 

Lord Phillips MR went on to show how the Strasbourg jurisprudence has found that the requirement for a fair trial (European Convention 1950 Art 6(1)) ‘normally carries with it an obligation that the judgment should be a reasoned judgment’. And, pointed out Lord Phillips, ‘in response to this requirement, Magistrates Courts now give reasons for their decisions’ (§7).

 

The court held that at common law there is a ‘general recognition’ at common law that reasons should be provided. In addition to the reasons in Flannery (above) Lord Phillips also stressed the components of justice, as well as practicality on appeals, implied by giving reasons:

 

[15] … While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public. Henry LJ in Flannery observed that the requirement to give reasons concentrates the mind of the Judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power.

 

On appeals the court commented, in relation that the appeal process required reasons if it was to ‘work satisfactorily’:

 

[19] It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained….

 

So what is to be done if no adequate reasons are provided? At §§[22]-[25] the Court of Appeal says how the lack of reasons should be remedied. Normally a party must seek permission to appeal from the judge, who should then consider giving reasons. A second bite at the carry was not the ideal means, but if reasons were inadequate it was the least worst means to resolve the short-comings of the judge.

 

So my suggestion to the Exeter judge would be that, on an application to her for permission to appeal, she provide a full reasoned judgment. If she still thinks her order should stand, the client will be able to consider whether he has a basis to appeal.

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8 thoughts on “COMMON LAW DEMANDS REASONS FOR A JUDGE’S DECSION

  1. I was in the Magistrates in North Wales where you might as well toss a coin. After a days final hearing they gave their judgement by simply reading aloud the CAFCASS report.

  2. Reblogged this on | truthaholics and commented:
    “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.”

  3. Reblogged this on UZA – people's courts, forums, & tribunals and commented:
    CANONS OF JUDICIAL ETHICS
    19. Judicial Opinions.
    In disposing of controverted cases, a judge should indicate the reasons for his action in an opinion showing that he has not disregarded or overlooked serious arguments of counsel. He thus shows his full understanding of the case, avoids the suspicion of arbitrary conclusion, promotes confidence in his intellectual integrity and may contribute useful precedent to the growth of the law.
    Source: Black’s Law 4th Edition, 1968; revised 6 – 1971; page LXIXI;

  4. Who I supposed to enforce this law, ie if the judge does not give a reason for his ruling? Who will hold him accountable? I appealed a case on up and no judge gave me a reason, nor would they account for the other judge who did not give a reason either! what do you do if no one seems to enforce due process, enforcing the law?

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