In Parr v MSR Partner LLP (and others) [2022] EWCA Civ 24 the Court of Appeal considered the question of discrimination time limits in the context of a decision to de-equitise a member of an LLP.

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In Burn v Alder Hey Children’s NHS Foundation Trust [2021] EWCA Civ 1791, the Court of Appeal (Underhill, Singh and Elisabeth Laing LJJ) rejected an argument, brought by a consultant surgeon under disciplinary investigation, that a contractual right to sight of correspondence imposed on her employer a general duty of disclosure extending to all documentation relating to the investigation.

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What right, or indeed duty, does an advocate have to seek to influence judicial reasoning after a judgment has been produced in draft?

This question which often arise in employment law cases (particularly in the High Court), as in many other areas of the law.  But two recent Court of Appeal decisions suggest a lack of commonality of view on the point amongst the appellant judges themselves.

In In Re A (Children) [2012] 1 WLR 595, the Court of Appeal held unanimously that, where there is concern about the adequacy of a judge’s reasoning, it is the responsibility of the advocate, whether or not invited to do so, to raise this with the judge and draw to his attention any material omission, any genuine query or ambiguity which arises, and any perceived lack of reasons or other perceived deficiency in the judge’s reasoning process. 

The judgment in question was given by Judge Compston in the course of care proceedings.  The children’s mother sought to appeal his finding that she had been involved in their sexual abuse by third parties, on the grounds that his reasoning was insufficient.  Munby LJ, giving the lead judgment, said that the approach to be adopted in such circumstances was that in English v Emery Reinbold & Strick Ltd [2002] EWCA Civ 605 [2002] 1 WLR 2409.  In other words, where an application for permission to appeal on grounds of lack of reasons is made to the trial judge, he should be given the opportunity to consider whether to remedy the defect by providing additional reasons.  Where the appeal is made to the appellate court, that court should consider whether to remit the case to the judge for additional reasons to be provided.

Munby LJ emphasised that: (1) It is the responsibility of advocate to raise with the judge any material omission in the judgment, whether or not invited to do so; and (2) Where permission is sought to appeal on grounds of lack of reasons, the judge should set out to remedy any defect in reasons by providing additional reasons:see [16]-[17].

Contrast the judgment of Rix LJ in Mercedes Travis Brewer v Stanley Mann[2012] EWCA 246,  a complex case about the sale and hire purchase of a vintage Bentley.  The judge in that case, HHJ Thornton QC, substantially amended his draft judgment in the light of the parties’ applications for permission to appeal, which included the ground that the judge had failed to address submissions which had been made to him.

Rix LJ distinguished English v Emery Reinbold on the basis that the judgment in that case was a short judgment on a relatively straightforward issue, where an appeal might be avoided altogether by the provision of additional reasons.  He concluded that, “where a judge … has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part.”

We are left, then, with startlingly contrasting approaches.  In Re A (Children) [2012] 1 WLR 595 appears to require advocates proactively to raise with the judge apparent deficiences in reasoning in a draft judgment.   Mercedes Travis Brewer appears to deprecate such an approach, in so far as it strongly discourages judges from supplementing the reasons given in a draft judgment in the light of submssions made by the parties.  The latter approach seems more consistent with the Court of Appeal’s previous decision in R (Binyam Mohamed) v Secretary of State for the Foreign & Commonwealth Office[2010] EWCA Civ 158, which re-emphasised the very limited circumstances in which it may be appropriate for a party to seek to correct more than typographical errors in a draft judgment: see [4].

Faced with these contrasting approaches, what is the advocate to do?  Whilst there is no easy answer, the following general points can be made: (1) In will be more appropriate to point out an apparent omission in a draft judgment where the matter is relatively straightforward, the omission is obvious, and the rectification may avoid the need for an appeal; (2) It will not be appropriate to request additional reasoning in circumstances where to do so is in effect to challenge the substance of the judgment, or further a potential ground of appeal; (3) Given that it is ultimately up to the judge to decide what to do, a “safety first” approach may be to draw these contrasting authorities to his attention.

As for the position of the judges, whilst the genuine further elucidation or explanation of a judgment would appear to be permissible, any attempt to buttress the reasoning in a judgment in anticiption of mooted grounds of appeal is unlikely to meet with approval from the Court of Appeal.  Subject to minor corrections and truly exceptional circumstances, a draft judgment should not be regarded as up for further debate, either by the parties or by the judge.

Daniel Stilitz QC

With the Equality Act 2010 (Amendment) Order 2012 (“the Regulations”) the Government has, somewhat belatedly, amended the compromise provisions contained in the Equality Act 2010 (“the EA”).  Section 147 of the EA sets out the conditions which must be fulfilled in order for a settlement agreement compromising a discrimination claim to be a “qualifying compromise contract”.  Only a “qualifying compromise contract” is effective to compromise a claim brought under the EA.

One of the stipulated conditions is that the complainant has, before entering into the contract, received advice from an “independent advisor” about its terms and effect (section 147(3)(c)).  Unfortunately, the definition of “independent advisor” was poorly drafted.  It excluded (at sections 147(5)(a) and (d)) “a person who is acting for a person who is party to the contract or the complainant” from being a qualifying “independent advisor”.  On a narrow, literal reading, this definition is wholly self-defeating, since it prevents a lawyer or other representative who is advising the complainant from providing the requisite advice for the purposes of the compromise agreement.

Most took the view that this construction of the section was so manifestly absurd that no court or tribunal would countenance it.  However, written advice obtained by the Law Society suggested that section 147 might indeed be ineffective.  This naturally made those advising the parties to discrimination complaints and their advisors somewhat nervous.

The Government has finally rectified the problem with the introduction of the Regulations.  Now, only persons who are acting for “a person who is a party to the contract or the complaint (other than the complainant)” are excluded from the definition of “independent advisor” under section 147(5)(d) of the EA (see regulation 2(3) of the Regulations, amending section 147(5)(a) of the EA).  This is clearly what was intended all along.

The Regulations will come into force on 6 April 2012.  However, since the Explanatory Note to the Regulations makes clear that the amendment has been introduced merely to “clarify” that a complainant’s legal adviser may be an “independent advisor”, it would perhaps be wrong to assume that the section is defective as it stands.