Losing defendants in a civil claim have failed to overturn a judge’s ruling – despite it taking him 18 months from the end of proceedings to hand it down. 

In Nuttal & Anor v Kerr & Anor, Mr Justice Freedman rejected the argument that the judgment was tainted by the judge’s recollection of evidence on a crucial point. Following a rolled-up hearing, he directed that permission be granted to bring the appeal, but that the appeal should be dismissed. 

The court had heard that His Honour Judge Hand QC finished receiving written submissions in September 2016, after completing oral proceedings in July 2016, but gave judgment in March 2018. The judge apologised for the delay, explaining it was ‘essentially due to personal difficulties, which I prefer not to give detail of here’. 

The judge, who had by then retired, was given formal advice following an investigation due to this delay. 

The defendants in the case were found to have made fraudulent misrepresentations over the value and outstanding debts of a company. They were found liable to pay back £50,000 with interest, and they then appealed on one single ground. 

At a hearing of consequential matters, HHJ Hand set out an ‘emotional address’ about a serious illness to an immediate member of his family.  

He said that the earliest draft he had of the judgment was in March 2017, and it had proved impossible to make anything out of the recording of the original hearing due to a transcription problem.  

The defendants argued on appeal that the judge had failed to apply the appropriate authorities in his appraisal of one key witness, and in particular the judge should have found the witness lied during her evidence, undermining her overall credibility.

The claimants said the alleged error complained of was about characterisation, not recollection. In effect, the delay itself did not affect how the judge chose to assess the evidence, and he had taken into account the unsatisfactory nature of elements of the case. 

Freedman J accepted that the delay was ‘inordinate and very regrettable’, and not appreciably shorter than in cases where there had been judicial disapproval. He said it was ‘utterly unrealistic’ to reject the witness evidence entirely and that the judge had come to the right conclusion, with no fault other than the delay itself.