Reasons for judgment

Common law duty to provide reasons

 

In a passage which applies to any common law judgment, and certainly to any in civil or family proceedings Lord Phillips MP (in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 at §[118]): ‘while it is perfectly acceptable for reasons to be set out briefly in a judgment, it is the duty of the Judge to produce a judgment that gives a clear explanation for his or her order’.

 

This case and the principles encapsulated in it were recently referred to in Iqbal v Iqbal [2016] EWCA Civ 19 (judgment: 25 January 2017). In that case, the Court of Appeal was confronted by an appeal by a husband who had been committed to prison on evidence which they felt was inadequate. Basic procedural rules were not followed. The husband had not been present when an ancillary relief order was made and on the wife applicant’s evidence only. A committal order was made on a judgment summons application involving just under £4M, as was explained by the Sir Ernest Ryder, Senior President of Tribunals in the Court of Appeal.

 

Inadequate evidence on judgment summons application

 

In his judgement Sir Ernest dealt with the evidence and judgment in the proceedings which lead to the order and which Mrs Iqbal wanted to enforce. Despite its inquisitorial functions, the court failed to make further inquiries as to the husband’s means; but proceeded on assumptions:

 

[20] Financial remedy proceedings in the Family Court are in part inquisitorial, however hotly contested the issues may be between the parties. The court has an obligation to satisfy itself about the statutory factors that are relevant to the decision it makes or the settlement it approves given that the parties have an obligation of full and frank disclosure. At any stage during the final hearing the judge could have asked about the existence and content of the basic evidential materials, for example the husband’s Form E. He did not. The manner in which assumptions were made by the judge can be ascertained from this exchange on the transcript between the judge and the wife:

 

Judge Brasse: He has not provided any information in this case at all.

Ms Iqbal: Yes

 

No attempt was made by the judge to test the wife’s evidence:

 

[21] … The wife was not sworn and relied upon her submissions and signed documents which contained no truth recital. There was no real attempt by the court to test anything that the wife said. The process of determining that the husband had assets of £6,440,000 was little more than an inadequate (and it appears incorrect) computational exercise based upon what the wife said to the judge in court. In one exchange the judge says “What is the evidence? (And) you have not got it” and in another he comments: “I appreciate that you do not have any actual original documents to support these, but you assert that…”. The judge was on notice of the evidential failings inherent in the process that was being conducted and yet he failed to act upon his own warnings.

 

Requirement to give reasons

 

The judge provided no judgment, nor any reasons, for what he had decided:

 

[22] The judge failed to give a formal judgment with the consequence that this court has had to analyse the transcript to ascertain whether there is a clear thread within the discussion which identifies the conclusions to which the judge came and sufficient reasoning for the same….  It should not be taken as read that this court will undertake that process lightly given the clear strictures of this court which apply as much to family proceedings as any other civil process: see English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605. Parties are entitled to a determination, no matter how short, that is capable of being scrutinised so that it can be understood and so that advice can be given about it and ultimately an appeal court can ascertain whether it was sufficient in law and on the facts.

 

It is this passage and the references to reasons for a judgment which leads to this note. In English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, [2002] 1 WLR 2409 the Court of Appeal, in a judgment of the court (Lord Philips MR, Latham and Arden LJJ) and under a heading ‘The requirement to give reasons under common law’, said that ‘[15] There is a general recognition in the common law jurisdictions that it is desirable for Judges to give reasons for their decisions’. This is not only so that parties may be clear as to whether they have grounds of appeal, and that an appellate court knows how a judge has reached his/her decision, but also:

 

• That justice may ‘be seen to be done;
• If decisions are to be acceptable to the parties and to members of the public;
• A requirement to give reasons may help to concentrate a judges mind; and
• Reasons may also provide an important means under the common law for setting precedents for the future

 

So, said the court, to put it at its simplest (§[16]): ‘justice will not be done if it is not apparent to the parties why one has won and the other has lost’; and the ‘why’ requires reasons, not just a statement of what the judge has decided and a bald order of the court.

 

Sufficient to comply with requirement

 

So what is sufficient to comply with the requirement for reasons? There is no need for a judge to deal with every argument put forward by a party; but – in a passage the court held, should apply to all judgments (§[18]) – Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122 said:

 

When dealing with an application in chambers to strike out for want of prosecution, a judge should give his reasons in sufficient detail to show the Court of Appeal the principles on which he has acted, and the reasons which led him to his decision. They need not be elaborate. I cannot stress too strongly that there is no duty on a judge in giving his reasons to deal with every argument presented by Counsel in support of his case. It is sufficient if what he says shows the parties, and if need be the Court of Appeal the basis on which he acted… (see Sachs LJ in Knight v Clifton [1971] 2 AER 378 at 392–393, [1971] Ch. 700 at 721).

 

Thus if appeals are to work properly the judge must enable the appellate court to understand why a decision was reached:

 

[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. It is not possible to provide a template for this process….

 

The court concluded this passage by referring to a judge’s approach to expert evidence and reasons why one expert may have been referred to another:

 

[20] The first two appeals with which we are concerned involved conflicts of expert evidence. In Flannery Henry LJ quoted from the judgment of Bingham LJ in Eckersley v Binnie (1988) 18 Con L.R. 1 at 77-8 in which he said that ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal’. This does not mean that the judgment should contain a passage which suggests that the Judge has applied the same, or even a superior, degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another…. Whatever the explanation may be, it should be apparent from the judgment.

 

Lack of reasons will not necessarily justify an appeal; but if an order is made which does not make immediate sense justification for an appeal may more readily be found.