Bath v Escott

The defendant applies by notice dated 26 April 2017 for an order that the audio recording of the judgment of District Judge Britton given in the Bristol District Registry of the High Court on 18 August 2014 be released

“to Truro County Court for voice recognition at the trial on 8 May 2017… for forced sale of the property. The transcript by Carter [sic] Walsh was generated one year later. It is not true to what was said in court.”

The application was supported under box 10 of Form N244 by identifying certain information on which the applicant would be relying. There were two items. The first was a letter from the civil appeals office dated 19 May 2015, and the second was the transcript of a judgment given by District Judge Britton on 18 August 2014. The letter from the civil appeals office simply informed the applicant that the master of civil appeals had directed that a transcript of the judgment of HH Judge McCahill QC dated 26 August 2014 be ordered at the public expense. But, as the applicant says in his application notice, box 10, it is clear that the judge concerned was District Judge Britton. So the letter does not take the matter further. As to the transcript, it is unmarked, so that there is no indication of which part or parts the applicant objects to. There is no other evidence in support of the application.

At the outset, I should say that it is regrettable that I am dealing with this application on paper only after the date of 8 May 2017, when there was apparently to be a hearing at the County Court at Truro. This is because, when the papers were delivered to my room on 4 May, I was already in court, dealing with a busy whole day list, and unfortunately did not notice these papers, and in particular that there was a hearing listed for 8 May. On 5 May I was absent on annual leave giving a lecture elsewhere in the country, and on Monday 8 May I commenced what was intended to be a four-day trial.

I do not know what was the result of that hearing on 8 May in Truro. Nevertheless, I must still deal with the application. Normally I would list an application of this kind for hearing. But in the circumstances of this case, that is not necessary, as will be seen. However, it does mean that I have not had the benefit of any input from the respondent to the application. My judgment must be read subject to that caveat.

The starting point is that the applicant says that the transcript which has been provided of the judgment of District Judge Britton “is not true to what was said in court.” I understand this to mean that it does not accurately set out the judgment which the judge actually delivered on the day. However, the applicant does not give any particulars of the differences to which he is referring. I do not know whether it is a matter of a few words, whether whole paragraphs been added, moved, or deleted, or indeed if the judgment was completely different from beginning to end.

Nevertheless, whatever the position, the mere fact that the transcript of the judgment, as approved by the judge, and sent to the parties, is in any way different from the reasons actually pronounced by the judge at the time of giving judgment, is not wrong in law. Nor does it in itself even give rise to concern. It is an entirely lawful and proper practice for a judge, on receiving a transcript of what was said at the time in giving judgment, to alter that transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes, and even matters of style, but also so that the reasons recorded accurately reflect why the judge made the decision that he or she made, even if they were not then properly or fully articulated.

The starting point is that it is orders of the court that express the courts’ decisions. “Judgments”, in the popular sense, express only the courts’ reasons for those decisions. (There is an old, technical sense of ‘judgment’ meaning a final decision made at certain kinds of trial, but I am not using the word in that sense.) So it is court orders that are enforced, rather than judgments containing reasons. And appeals to higher courts are appeals against orders that are made by the court, rather than against their reasons. Thus when the judge decides a case, it is the order that is made at the end that is all-important, and the reasons simply explain the basis for the decision. Of course, when an appeal court considers an appeal against an order, it will want to see what the reasons were. But even if the reasons were wrong, the decision might still be right, and in that case the appeal would be dismissed.

It is clear law that a judge who gives reasons for a decision may alter those reasons, indeed sometimes even the decision itself, after having made them known to the parties. So, it has long been the practice for judges to revise transcripts taken of their judgments given in court for the purpose of publication. The courts have made clear that, if there are two reports of a decision available, one containing the judgment as revised by the judge, and the other simply giving a transcript as taken down by the shorthand writer, without revision by the judge, then the revised version will be preferred as more authoritative: Fairman v Perpetual Investment Building Society [1923] AC 74, 79.

But the process of revision nowadays begins even earlier. The current practice (in place now for many years) is that a judge who, instead of delivering a judgment orally at the end of the argument, has reserved it to be given at a later date in writing, will circulate a draft of that judgment before handing it down. A judge may alter the draft judgment between circulating it (and receiving comments from the parties) and handing it down: see eg Royal Brompton Hospital NHS Trust v Hammond [2001] EWCA Civ 778.

Turning to judgments which have been formally given or handed down, it has been established for several decades now that even after giving or handing down the judgment a judge is entitled to amend it, and even to change the decision itself if necessary, before the order is actually sealed: see Re L and B (Children) [2013] 1 WLR 634, [16]-[27]. It was held by the Supreme Court in that case that the power of the judge to reverse the decision at any time before the order was drawn up and sealed was not limited to exceptional circumstances, and that the overriding objective in the exercise of power was to deal with the case in question justly.

Moreover, it is clear 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”: see Space Airconditioning plc v Guy [2012] EWCA Civ 1664, [53].

Lastly, it is also the law that a judge may properly be asked to clarify or amplify the reasons originally given in a judgment even after the delivery of that judgment. Indeed sometimes it may be the duty of counsel to ask the judge to do so, or the judge may consider the matter of his or her own initiative. It is then legitimate for any higher court hearing an appeal from a judgment of the court below to take into account any supplemental judgment or statement in which the judge amplified the reasons given for the main judgment: see Greenwich Millennium Ltd v Essex Services plc [2014] 1 WLR 3517, [7].

What all this means is that, if a judge on later reading the transcript of an oral judgment already delivered considers that what is written there does not accurately represent his or her reasons for the decision, the judge may and indeed should alter it so that it does accurately record the reasons that the judge had for that decision. More, if the judge changes his or her mind as to the reasons for a decision or (in certain cases) changes the actual decision, then the judgment can be altered too. As a result, it does not matter if the approved transcript adds to or differs from the actual words used by the judge at the time of giving judgment. What matters is only that it has been considered, revised if necessary, and then approved by the judge. And that is what appears to have happened in the present case.

On its face, this is an application essentially complaining that a transcript approved by the District Judge does not accurately record what the District Judge actually said on the day. For the reasons which I have given above, there is no duty on the judge to approve a transcript limited to the exact terms of the words spoken on the day. On the contrary, it may be the duty of the judge to alter the transcript in order to make the transcript as approved an accurate record of the reasons for which the decision was made, which may not have been properly or adequately expressed at the time, and even in some cases may not have been articulated at all.

I accept that, if the applicant were to allege, with sufficient evidence to raise a prima facie case, that the statement that the judge had revised and approved the transcript was false, or that although the transcript was so revised and approved it nevertheless did not reflect accurately the judge’s reasons for the decision, or that the judge had added to the transcript a new point never previously raised (and which the parties had not been able to comment on), and then decided the case on the new basis, that might be different. It would be a high hurdle to overcome, for obvious reasons, but I cannot say that it could never be done. In the present application, however, the applicant does not make any such allegation, still less provide any evidence for it. In these circumstances, I cannot take the matter further.

Accordingly, this application is bound to fail, and it is both unnecessary and inappropriate under CPR rule 23.8(c) to list it for hearing. I dismiss it as totally without merit.