In R (on the application of Davies) v Carmarthenshire County Council (see PP 2015/46) counsel for the unsuccessful defendant – following circulation of the draft judgment – submitted substantial written submissions to the judge on the issue of the correct remedy. Counsel for the successful claimant then submitted an extensive reply to those submissions, while contending that they amounted to an abuse of process. What is acceptable in practice?
The starting point, perhaps, is CPR Practice Direction 40E – Reserved Judgments. This refers only to the possibility of corrections being made to the draft judgment. And, in R (on the application of Edwards) v Environment Agency [2008] UKHL 22, Lords Hoffmann and Hope were heavily critical when, after drafts of the speeches that they and their colleagues intended to deliver had been circulated, counsel for the appellant submitted a memorandum consisting of 27 paragraphs of closely typed submissions. This referred to three EU directives that had not been mentioned in the appellants’ lengthy arguments before the House of Lords, and repeated other arguments that had already been considered.
Lord Hoffmann stated: “In my opinion, the submission of such a memorandum is an abuse of process of the procedure of the House. The purpose of the disclosure of draft speeches to counsel is to obtain their help in correcting misprints, inadvertent errors of fact or ambiguities of expression. It is not to enable them to reargue the case.”
Again, the Court of Appeal in Binyam Mohamed v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158 was equally critical in commenting on the role of draft judgments. The appeal judges emphasised that the primary purpose of the practice was to enable any typographical or similar errors to be notified to the court. It was not to provide an opportunity to any party (and in particular the unsuccessful party) to reopen or reargue the case, or to repeat submissions made at the hearing, or to deploy fresh ones.
In Davies, the judge – Gilbart J – chose not to consider whether what had happened amounted to an abuse of process. Having acknowledged the submissions made to him, he confirmed that he had made a finding that he was not persuaded was in any sense outside his powers, and that the remedy granted remained appropriate.
John Martin is a planning law consultant
