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	The Law Commission Practice Directions
You are here: BAILII >> Databases >> The Law Commission >> The Law Commission Practice Directions >> Practice Direction PD_2_04_1998 (22 April 1998) URL: http://www.bailii.org/ew/other/EWLC/PD/1998/PD_22_04_1998.html Cite as: Practice Direction PD_2_4_1998, Practice Direction PD_2_04_1998

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Practice Directions

Practice Statement by The Lord Chief Justice

Royal Courts of Justice: Judgments

22 April 1998

1. Introduction

I am making this statement with the agreement of the Master of the Rolls, the Vice-Chancellor and the President of the Family Division. It applies to judgments delivered in all Divisions of the High Court and the Court of Appeal.

In recent years a practice has developed for the written judgment of the court to be handed down without, as in the past, being read aloud. In this way much time is saved for the court, for practitioners and for litigants. The development of this practice, coupled with the increasing use of information technology, has, however, also led to the development of problems which have hindered the efficient administration of justice.

One of these problems is associated with the delays that have often been experienced before the approved judgment of the court can be made available from an official source. A second problem has arisen as a direct consequence of the first: because of these delays, there has been widespread dissemination of many unapproved judgments of the court, which often omit significant last minute changes to the text, sometimes without any clear warning about their unapproved status. A third problem has been that the judgments delivered in courts not staffed by official shorthandwriters have lacked a common format, and inconsistent practices have developed in the way they are distributed. There is also a contemporary need for the courts to facilitate the speedy publication of their approved judgments by electronic means, including the Internet's Worldwide Web.

The Vice-chancellor and Lord Justice Brooke were invited to study these problems last autumn and to make recommendations as to how they might be resolved. Although they consulted quite widely, they are conscious that they have not consulted everyone who might have an interest in these matters. The arrangements I am announcing today should be regarded as experimental. Although they will take immediate effect, they will be kept under review, and if they meet with general approval they will be formalised in a Practice Direction in due course.

2. Availability of handed down judgments in advance of the hearing: new arrangements

Unless the court otherwise orders - for example, if a judgment contains price-sensitive information - copies of the written judgment will now be made available in these cases to the parties' legal advisers at about 4 pm on the second working day before judgment is due to be pronounced on condition that the contents are not communicated to the parties themselves until one hour before the listed time for pronouncement of judgment. Delivery to legal advisers is made primarily to enable them to consider the judgment and decide what consequential orders they should seek. The condition is imposed to prevent the outcome of the case being publicly reported before judgment is given, since the judgment is confidential until then. Some judges may decide to allow the parties' legal advisers to communicate the contents of the judgment to their clients two hours before the listed time, in order that they may be able to submit minutes of the proposed order, agreed by their clients, to the judge before the judge comes into court, and it will be open to judges to permit more information about the result of a case to be communicated on a confidential basis to the client at an earlier stage if good reason is shown for making such a direction.

If, for any reason, a party's legal advisers have special grounds for seeking a relaxation of the usual condition restricting disclosure to the party itself, a request for relaxation of the condition may be made informally through the judge's clerk (or through the associate, if the judge has no clerk).

A copy of the written judgment will be made available to any party who is not legally represented at the same time as to legal advisers. It must be treated as confidential until judgment is given.

Every page of every judgment which is made available in this way will be marked "Unapproved judgment: No permission is granted to copy or use in court". These words will carry the authority of the judge, and will mean what they say.

The time at which copies of the judgment are being made available to the parties' legal advisers is being brought forward 24 hours in order to enable them to submit any written suggestions to the judge about typing errors, wrong references and other minor corrections of that kind in good time, so that, if the judge thinks fit, the judgment can be corrected before it is handed down formally in court. The parties' legal advisers are therefore being requested to submit a written list of corrections of this kind to the judge's clerk (or to the associate, if the judge has no clerk) by 3pm on the day before judgment is handed down. In divisions of the court which have two or more judges, the list should be submitted in each case to the judge who is to deliver the judgment in question. Lawyers are not being asked to carry out proof-reading for the judiciary, but a significant cause of the present delays is the fact that minor corrections of this type are being mentioned to the judge for the first time in court, when there is no time to make any necessary corrections to the text.

3. Availability of approved versions of handed down judgments: new arrangements

This course will make it very much easier for the judge to make any necessary corrections and to hand down the judgment formally as the approved judgment of the court without any need for the delay involved in requiring the court shorthandwriter, in courts which have an official shorthandwriter, to resubmit the judgment to the judge for approval. It will always be open to the judge to direct the shorthandwriter at the time of the hearing in court to include in the text of the judgment any last minute corrections which are mentioned for the first time in court, or which it has proved impractical to incorporate in the judgments handed down. In such an event the judge will make it clear whether the shorthandwriter can publish the judgment, as corrected, as the approved judgment of the court without any further reference to the judge, or whether it should be resubmitted to the judge for approval. It will be open to judges, if they wish, to decline to approve their judgments at the time they are delivered, in which case the existing practice of submitting the judgment for their approval will continue.

4. Handing down judgment in court: availability of uncorrected copies

When the court hands down its written judgment, it will pronounce judgment in open court. Copies of the written judgment will then be made available to accredited representatives of the media, and to accredited law reporters who are willing to comply with the restrictions on copying, who identify themselves as such. In cases of particular interest to the media, it is helpful if requests for copies can be intimated to the judge's clerk, or the presiding lord justice's clerk, in advance of judgment, so that the likely demand for copies can be accurately estimated. Because there will usually be insufficient time for the judge's clerk to prepare the necessary number of copies of the corrected judgment in advance, in most cases these uncorrected copies will similarly bear the warning "Unapproved Judgment: No permission is granted to copy or use in court." The purpose of these arrangements is to place no barrier in the way of accredited representatives of the media who wish to report the judgments of the court immediately in the usual way, or to accredited law reporters who wish to prepare a summary or digest of the judgment or to read it for the purpose of deciding whether to obtain an approved version for reporting purposes. Its purpose is to put a stop to the dissemination of unapproved, uncorrected, judgments for other purposes, while seeking to ensure that everyone who is interested in the judgment (other than the immediate parties) may be able to buy a copy of the approved judgment in most cases much more quickly than is possible at present.

If any member of the public (other than a party to the case) or any law reporter who is not willing to comply with the restrictions on copying, wishes to read the written judgment of the court on the occasion when it is handed down, a copy will be made available for him or her to read and note in court on request made to the associate or to the clerk to the judge or the presiding lord justice. The copy must not be removed from the court and must be handed back after reading. The object is to ensure that such a person is in no worse a position than if the judgment had been read aloud in full.

5. Availability of approved judgments

In courts without an official shorthandwriter, the approved judgment should contain on its frontispiece the rubric "This is the official judgment of the court and I direct that no further note or transcript be made". (This will cover the requirements of Order 68 Rule 1, in the cases to which that rule applies, and will provide for certainty in all other cases). In future, all judgments delivered at the Royal Courts of Justice will be published in a common format.

For cases decided in the two divisions of the Court of Appeal and in the Crown Office List, copies of the approved judgment can be ordered from the official shorthand writers, on payment of the appropriate fee. In the other courts in the Royal Courts of Justice, copies of the approved judgment can be ordered from the Mechanical Recording Department, on payment of the fee prescribed for copy documents. Disks containing the judgment will also be available from the official shorthandwriters, and the Mechanical Recording Department, where relevant, on payment of an appropriate charge. It is hoped that in most cases copies of the approved judgment will be available from these sources on the same day as the judgment is handed down: they should no longer be sought from judges' clerks.

6. Restrictions on disclosure or reporting

Anyone who is supplied with a copy of the handed-down judgment, or who reads it in court, will be bound by any direction which the court may have given in a child case under section 39 of the Children and Young Persons Act 1933, or any other form of restriction on disclosure, or reporting, of information in the judgment.

7. Availability of approved versions of ex tempore judgments

Delays have also been experienced in the publication of approved versions of ex tempore judgments, whether they are produced by the official shorthand writers or by contractors transcribing the tapes which have been mechanically recorded.

Sometimes the delay is caused in courts without an official shorthandwriter because a transcript is bespoken by one of the parties a long time after the judgment was delivered. If a transcribed copy of such a judgment is to be required, in connection with an appeal, for example, it should be ordered as soon as practicable after judgment was delivered.

Delays are also sometimes caused in these cases because judgments are delivered to a judge for approval without supplying the judge with copies of the material quoted in the judgment. In future no judge should be invited to approve any such transcript unless the transcriber has been provided by the party ordering the transcript with copies of all the material from which the judge has quoted. If the transcript is ordered by a person who is not a party to the case (such as a law reporter), that person should make arrangements with one of the parties to ensure that the transcriber (and the judge) will have access to all the material quoted in the judgment.

From time to time delays are also caused because judges have been slow in returning approved transcripts to the transcribers. I and the other Heads of Division have recently asked judges, as a general rule, that they should endeavour to return approved transcripts to the transcribers within two weeks of their being delivered to them for approval. If anyone encounters serious delay on this account, the relevant Head of Division should be informed.

8. Citation of Authorities in Court

For citation of authorities in court, the practice set out in the Practice Notes on Citation of Authorities (Court of Appeal (Civil Division) [1995] 1 WLR 1096; [1995] 3 All ER 256 and [1996] 1 WLR 854; [1996] 3 All ER 382 are now to be followed in all courts to which this Practice Statement applies. For convenience of reference, the relevant parts of these Practice Notes read:

"When authority is cited, whether in written or oral submissions, the following practice should in general be followed.

If a case is reported in the official Law Reports published by the Incorporated Council of Law Reporting for England and Wales, that report should be cited. These are the most authoritative reports; they contain a summary of argument; and they are the most readily available.

If a case is not (or not yet) reported in the official Law Reports, but is reported in the Weekly Law Reports or the All England Law Reports, that report should be cited.

If a case is not reported in any of these series of reports, a report in any of the authoritative specialist series of reports may be cited. Such reports may not be readily available: photostat copies of the leading authorities or the relevant parts of such authorities should be annexed to written submissions; and it is helpful if Photostat copies of the less frequently used series are made available in court.

It is recognised that occasions arise when one report is fuller than another, or when there are discrepancies between reports. On such occasions, the practice outlined above need not be followed. It is always helpful if alternative references are given. Where a reserved written judgment has not been reported, reference should be made to the official transcript (if this is available) and not to the handed down text of the judgment.

Leave to cite unreported cases will not usually be granted unless counsel are able to assure the court that the transcript in question contains a relevant statement of legal principle not found in reported authority and that the authority is not cited because of the phraseology used or as an illustration of the application of an established legal principle."

9. Conclusion

The purpose of these changes, which are being made on an experimental basis after full consultation with the Court Service, is to improve the quality of service rendered by the judges to those who use the courts. Any comments on these changes, or suggestions about further improvements in relation to the matters set out in this statement, should be addressed to Lord Justice Brooke at the Royal Courts of Justice. They will be taken fully into account when the time comes to decide whether these arrangements should be formalised, with or without amendment, in a Practice Direction.

The Right Honourable
Lord Bingham of Cornhill
Lord Chief Justice of England

22 April 1998