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Court of Appeal outlines approach advocates and judges should take to requests for clarification of judgments

The Court of Appeal has considered the extent to which judges are required to respond to requests for clarifications in judgments.

This arose in a case concerning the alleged sexual abuse of two children.

In F And G (Children : Sexual Abuse Allegations) [2022] EWCA Civ 1002 Lord Justice Baker, who sat with Lady Justice Elisabeth Laing and Lord Justice William Davis, said that the appellant’s case drew attention to the refusal of Recorder Evans, who heard the original case at the Family Court at Derby, to respond to a request for clarification.

In granting permission to appeal, King LJ observed it was arguable Recorder Evans fell into error in declining to respond entirely to the request.

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Baker LJ noted that the approach to be adopted by advocates and judges to requests for clarification of judgments had been considered by the Court of Appeal on a number of occasions since the decision in English v Emery Reimbold and Strick Ltd [2002] EWCA Civ 605. In the family law jurisdiction, the two key authorities were Re A and another (Children) (Judgment: Adequacy of Reasoning) [2011] EWCA Civ 1205 ("the Practice Note") and Re I (Children) [2019] EWCA Civ 898. The procedure to be adopted was set out in the Family Procedure Rules 2010 Practice Direction 30A paragraph 4.6 to 4.10. 

Baker LJ said that in the practice note, Munby LJ had emphasised it was the responsibility of the advocate to raise with the judge any material omission in the judgment, any genuine query or ambiguity and any perceived lack of reasons or other perceived deficiency.

Munby LJ had also said where permission is sought from the trial judge to appeal on the ground of lack of reasons, “the judge should consider whether his judgment is defective for lack of reasons and, if he concludes that it is, he should set out to remedy the defect by the provision of additional reasons”.

Baker LJ said in in the three years since Re I was handed down "there had been little if any discernible restraint" in the practice of seeking clarification of judgments.

He added that the pressures on the family justice system had grown ever greater and concerns expressed by King LJ about the burdens imposed by request for clarifications “are of even greater relevance than they were in 2019”.

He said in the present case “counsel submitted carefully crafted and detailed ‘points of clarification raised on behalf of the intervenor’ and had not sought to reargue the case nor water down the judgment.

"But in my view the points of clarification raised went beyond what is intended by the authorities and the recorder was not obliged to answer them,” he said.

“The recorder's refusal to respond to any of the points of clarification was not a ground of appeal raised on behalf of the intervenor. In my view, had it been raised, it would not have led to a successful appeal.”

He explained: “When giving judgment in a complex children's case, no judge will deal with every point of evidence or every argument advanced on behalf of every party. The purpose of permitting requests for clarification to be submitted is not to require the judge to cover every point but rather, as the Practice Note emphasised, "to raise with the judge and draw to his attention any material omission in the judgment, any genuine query or ambiguity which arises on the judgment, and any perceived lack of reasons or other perceived deficiency in the judge's reasoning process."

"It is therefore rarely if ever appropriate for counsel to enquire as to the weight which the judge has given to a particular piece of evidence. If, as frequently happens, a judge draws together various strands of the evidence in giving reasons, it is neither necessary nor appropriate for counsel to separate out each strand and enquire what weight the judge has or has not attached to each piece, unless it can be said that in giving his reasons in a general way the judge has failed to address material parts of the evidence, or has created an ambiguity, or failed to provide sufficient reasons for his decision."

On the abuse case, Baker LJ said: “Although in some respects [Recorder Evans] expressed his reasons in general terms without descending to the particulars, I see no reason to doubt that he failed to consider all the evidence or the extensive submissions put before him at the end of the hearing.”

Lady Justice Elisabeth Laing and Lord Justice William Davis agreed.

Mark Smulian

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