District Judge Adam Taylor examines how judges can recall and replace their judgments and orders

Visiting European judges are often surprised to hear their English and Welsh counterparts deliver an oral judgment at the end of a trial. Oral, or extempore, judgments have several advantages over written: they involve no delay; they ensure that witnesses' evidence and demeanour remain fresh in the judge's mind; and they allow judges more time in which to hear cases. Occasionally, though, an oral judgment may betray signs of haste that a written judgment would have avoided.


Picture Judge Perplexed, roused before dawn from his accustomed slumber by the indigestible thought that his judgment, delivered orally the previous day, was less than perfect and, worse, that his conclusions overlooked an important and invalidating point.


What should he do? Despairing of sleep, Judge Perplexed dons his dressing gown, flicks on his government-issue computer, and starts searching the law reports for an answer.


Two recent decisions catch his attention. In Birmingham City Council and another v Yardley [2004] EWCA Civ 1756, the defendant argued that the judgment and order of the court at first instance were of no effect because the former was headed 'draft' and was neither signed nor sealed and the latter was drawn up more than two months after the judgment had been delivered.


Lord Justice Gage dismissed these arguments succinctly - the judgment and order took effect immediately they were pronounced. But to this conclusion, he added a more debatable observation: 'All judgments, even those handed down, have to be approved by a judge. When approving a judgment, a judge may alter the wording, but not, of course, the decision, even if approval comes after it has been handed down.'


Similarly, in Perotti v Collyer-Bristow (No. 2) [2004] EWCA Civ 1019, the Court of Appeal was willing, at the claimant's suggestion, to correct 'typing errors, wrong references and other minor corrections of that kind', but would not entertain further submissions once its judgment had been delivered in draft.


More encouragement for our insomniac hero is to be found in English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605, where Lord Phillips MR weighs the pros and cons of amending a judgment that does not contain adequate reasons: 'Where the judge who has heard the evidence has based a rational decision on it, the successful party will suffer an injustice if that decision is appealed, let alone set aside, simply because the judge has not included in his judgment adequate reasons for his decision. The appellate court will not be in as good a position to substitute its decision, should it decide this course is viable, while an appeal followed by a rehearing will involve a hideous waste of costs.


'Accordingly, we recommend the following course. If an application for permission to appeal on the ground of lack of reasons is made to the trial judge, the judge should consider whether his judgment is defective for lack of reasons... If he concludes that it is, he should set out to remedy the defect by the provision of additional reasons, refusing permission to appeal on the basis that he has adopted that course.'


So, a judge can supplement his reasons. But what if a judgment is defective not only in its reasoning, but in its conclusion?


In Pitallis v Sherefettin [1986] 1 QB 868, the judge at first instance was sure 'within minutes' of delivering his judgment that it was wrong. He recalled it and substituted another. Lord Justice Dillon, on appeal, followed Millensted v Grosvenor House (Park Lane) Limited [1937] 1 KB 717, observing: 'It is indeed exceptional for a judge who has pronounced an order in court to be completely satisfied, before the order has been drawn up, registered or perfected, that the order was wrong. That happened, however, in the present case, and accordingly the judge was entitled, taking the view he did, to recall his earlier order.'


Does the power to recall a judgment survive the introduction of the Civil Procedure Rules 1998 (CPR)? Stewart v Engel [2000] 3 All ER 518, CA answers this question. The headnote begins: 'Provided that the recording of his decision had not been formally completed, a judge had the power to reconsider his conclusion and in effect reverse his own decision. Such a power had existed before the introduction of the CPR, and there was nothing in the new code abrogating it. On the contrary, that jurisdiction, if exercised very cautiously and sparingly, served a useful purpose, fully in accord with the CPR's overriding objective of enabling the court to deal with cases justly.'


In Robinson v Fernsby [2003] EWCA Civ 1820, the Court of Appeal reviewed previous authorities and cited Stewart with approval. And here, in the short concurring judgment of Lord Justice Gibson that concludes the ruling, is the guidance that Judge Perplexed has been searching for: 'With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made, even if he has given reasons for that order by a judgment handed down or orally delivered... Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for a judge to have the courage to recall his order.


'If... the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so?... The possible qualification to which I have referred is where the judgment handed down or delivered has reasonably been relied on by a party who has altered his position irretrievably in consequence. In such a case the interests of justice may require the judge not to resile from that judgment even if the order has not been sealed.'


This view cannot be reconciled with Yardley, but Lord Justice Gage's observation in that case is not necessary to his conclusion and is therefore obiter. Even if that were not so, Robinson is based on a comprehensive review of earlier authorities and is to be preferred.


Now Judge Perplexed knows what he should do. He must recall and replace his judgment and order.


But not just yet; dawn is breaking. The first birds, like young advocates, are trying their voices. And it is time Judge Perplexed - perplexed no longer - returned to bed.


District Judge Adam Taylor sits at Horsham County Court