Bond v Dunster Properties Ltd & others
| Jurisdiction | England & Wales |
| Judge | Lady Justice Arden,Lord Justice Longmore,Master of the Rolls |
| Judgment Date | 21 April 2011 |
| Neutral Citation | [2011] EWCA Civ 455 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: A3/2010/1741 |
| Date | 21 April 2011 |
[2011] EWCA Civ 455
The Master of the Rolls
Lady Justice Arden
and
Lord Justice Longmore
Case No: A3/2010/1741
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
(QUEEN'S BENCH DIVISION)
BRISTOL DISTRICT REGISTRY
MERCANTILE COURT
HHJ Havelock-Allan QC
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Ascroft (instructed by Thrings LLP) for the Appellant
Ms Michelle Stevens-Hoare (instructed by Andrew Simpson, In House Solicitor for the First and Second Defendants) for the Respondents
Hearing date: 14 March 2011
"Everyone is entitled to a hearing…within a reasonable time"
The thrust of the appeal is against the judge's findings of fact. A major cause of complaint is that the judge did not hand down judgment until some 22 months after the conclusion of the hearing and that as one result his findings of fact are against the weight of the evidence. This extraordinary delay clearly called for an apology and, if any existed, an explanation of the mitigating circumstances. However, so far as we are aware, there was none. Litigation is stressful for the parties, sometimes because they are members of the same family and sometimes because the transactions are commercial in nature and their outcome has implications for other transactions that the parties or others need to carry out. Life has to go on before, during and after litigation. In some cases, a delay in producing a judgment may prevent the parties from reaping any benefit from the litigation at all. Unfortunately, this case involves both the elements of close family relations and of commercial transactions. Irrespective of the respective merits of the appeal, this court has no reservation in expressing its sympathies for the parties as a result of the length of time they had to wait for this judgment. We would include others involved in the litigation such as the witnesses and the professional advisers. Delays of this order are lamentable and unacceptable.
The matter goes further than just the effect on the parties. An unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. If there were regular delays of this order, the rule of law would be undermined. There can, of course, be very different reasons for delay, such as ill-health of the judge or a close relative. In rare cases it could be a reprehensible lack of diligence or even sometimes a belief that the parties might do better to settle their differences or to conduct their affairs without knowing the legal result. None of these reasons, except serious ill-health of the judge, would, however, justify a substantial delay beyond the usual period taken for delivering judgments. This may vary according to the tier of the court but is usually taken to be three months.
The opening cross-heading of this judgment is a quotation from article 6 of the European Convention on Human Rights, which has been given protection under domestic law by the Human Rights Act 1998. A "hearing" includes the delivery of judgment. The right is not a new one or one which is alien to the common law. Clause 40 of Magna Carta provides: "To no one will we …delay… justice".
There is no statutory rule which provides that a judgment must be delivered within a specified time. It has to be delivered within a reasonable time and what is a reasonable time may well vary according to the complexity of the legal issues, the volume and nature of the evidence and other matters. There can also be factors which make it necessary for the court to deliver judgment more speedily than would otherwise be the case, for example, where urgent steps need to be taken, or the case involves the welfare of a child, or where a party is in the final stages of a terminal illness. Judges do their best to assist in these situations even though the judgment may have to be written in their own time. To accelerate the judgment in one case may involve other judgments being put back or cases being reallocated to other judges, and there has to be some flexibility for a judge to make those types of judgments as a matter of case management. But the situations in which longer than usual is necessary for writing judgments must be out of the norm and they should be limited to special cases and the delay should be justified. There may be delays which occur for which the judiciary are not responsible, as, for example, where an unrepresented party is unable (perhaps through ill health) to comply with some requirement of the court without which the court cannot proceed to judgment.
In addition, since the hearing of civil cases is to provide litigants with a means of settling their disputes, any delay beyond the reasonable period for judgments should also, as a matter of courtesy to litigants, be explained by letter or email to the parties who are waiting for the judgment. This should be done as a matter of good practice and transparency even if the parties do not press for the judgment. They may understandably be reluctant to approach the judge themselves.
Cases of this nature are exceptional. In giving judgment in Gardiner Fire Ltd v Jones, a decision of this court in 1998, where there had been a delay of 22 months in the delivery of judgment, also, Lord Woolf MR stated that mechanisms had been put in place to alert judges with responsibility for supervising the delivery of judgments by other judges about delays so that they could take appropriate steps to prevent delays. The mechanisms did not assist the parties in this case and it will fall to the Master of the Rolls, as the Head of Civil Justice, to consider whether there are any new measures that are required.
Standard of review on appeal against findings of fact in a seriously delayed judgment
The function, however, of the court on hearing this appeal is not to impose sanctions or to investigate the reasons why the delay occurred. The function of this court on this appeal, which is principally brought against the judge's findings of fact, is to consider whether any of those findings of fact should be set aside and a retrial ordered. Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. This high test takes account of the fact that trial judges normally have a special advantage in fact-finding, derived from their having seen the witnesses give their evidence. However there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge's recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. That party might have been the winning party even if judgment had not been delayed.
In Goose v Wilson Sandiford [1998] TLR 85, Peter Gibson LJ explained the potential effect of delay on the formulation and finalisation of findings of fact in these terms:
"113. Because of the delay in giving judgment, it has been incumbent on us to look with especial care at any finding of fact which is now challenged. In ordinary circumstances where there is a conflict of evidence a judge who has seen and heard the witnesses has an advantage, denied to an appellate court, which is likely to prove decisive on an appeal unless it can be shown that he failed to use, or misused, this advantage. We do not lose sight of the fact that the judge had transcripts of the evidence, as well as very extensive written submissions from counsel. But the very fact of the huge delay in itself weakened the judge's advantage, and this consideration had to be taken into account when we reviewed the material which was before the judge. In a case as complex as this, it is not uncommon for a judge to form an initial impression of the likely result at the end of the evidence, but when he has come to study the evidence (both oral and written) and the submissions he has received with greater care, he will then go back to consider the effect the witnesses made on him when they gave evidence about the matters that are now troubling him. At a distance of 20 months, Harman J. denied himself the opportunity of making this further check in any meaningful way."
Two points need to be added to this helpful passage. First, some judges adopt strategies to mitigate the risk of misrecollection. For example, some judges adopt the practice of writing up the facts required to be set out in a judgment in detail almost immediately after a hearing, and that is obviously a good practice to follow especially where the crucial events turn on oral and not contemporaneous written material. There is no evidence that the judge took that course in this case. However, the judge has made his notebooks available and his copies of the submissions which shows that he had detailed notes to work from.
The second point that I would respectfully add is to agree with the thrust of two points about the judicial assessment of demeanour made by the Privy Council in Cobham v Frett [2001] 1 WLR 1775 at 1783:
"As to demeanour, two things can be said....
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