Category Archives: 2017

Paragraph 168: A Cautionary Tale Concerning the Circulation of Draft Judgments to Counsel

 

by Thomas S. Woods[2]

(2017) Oxford U Comparative L Forum 1 at ouclf.iuscomp.org | How to cite this article

1.0 Introduction[1]

It comes as a surprise to judges and counsel—not only in the common law provinces of Canada but elsewhere in the common law world[3]—that, in England and Wales, courts routinely circulate their judgments in draft to counsel and thereby provide them with an opportunity to comment and suggest changes—both as to style and substancebefore those drafts are made final.

In some highly publicised English cases that come in for detailed discussion further on in this article, that practice led to headlines in the mainstream media like “Appeal judge watered down Binyam Mohamed torture ruling.”[4]This article considers the English practice of circulating draft judgments and the arguments that are offered in support of it. It then turns to consider a high-profile instance of the practice in action that brought unfortunate, but not entirely unpredictable, consequences to the panel of the English Court of Appeal that presided over the case and to some of the barristers who appeared before the panel as counsel. The article concludes with a discussion of whether the practice of circulating draft judgments to counsel for comment before they are made final is one that ought to be considered for adoption in Canada and other jurisdictions in the common law world. This latter question is one to which it is anticipated judges and counsel may bring differing perspectives. It is submitted that, perhaps, the fact that the practice is not more ubiquitous is a good thing.

2.0 Some Context: When English Judges Can Permissibly Change Their Minds

The subject of circulating judgments in draft to counsel for “correction” before they are made final in England must be considered against the background of a broader subject, that being the question of when and under what circumstances a judge there may permissibly change his or her mind. The practice under scrutiny in the present article has certainly created new opportunities for judges to change their minds; indeed, after counsel have received their judgments in draft, English judges not uncommonly receive submissions urging them forcefully to do just that. But this is not the only situation in which a judge might be inclined to change his or her mind.

A judge may simply come, on reflection, to question his or her initial findings of fact or legal conclusions. Or a judge may discover that an important authority on point has been overruled or not been cited to the court, or that a binding authority has been handed down since the judge prepared the initial draft of his or her reasons. Nevertheless, in order that there be finality in legal proceedings, at some stage a judge must no longer be free to change his or her mind (absent a successful, intervening application to re-open or call fresh evidence). The answer to the question of when that stage is reached in English law is a somewhat nuanced and complex one.

2.1 Rule 40.7(1)

The starting point is Rule 40.7(1) of Lord Woolf’s English Civil Procedure Rules (CPR). That Rule provides, straightforwardly, that a judgment takes effect “from the day when it is given or made, or such later date as the court may specify”. English judgments are “given or made” when they are delivered orally or handed down in court. Thus, the filing of the orders embodied in the judgments, on the authority of (for example) Holtby v. Hodgson,[5] was generally considered an administrative act that did not affect when those judgments (and the orders they contain) begin definitively to “speak”.[6] Would that it were so simple.

2.2 The Gloss

Rule 40.7(1), its pre-CPR predecessor Rule[7] and the authority of decisions like Holtby v. Hodgson have all been effectively glossed by a body of case law which has held that judges retain a power to make changes to their judgments up to the point where the judgments are “perfected”. In the recent case of In re L and B (Children) (Preliminary Finding: Power to Reverse)[8] (hereinafter, Re LB), Britain’s highest court confirmed that point starkly by stating “… a judge is entitled to reverse his decision at any time before his order is drawn up and perfected”. In support of that conclusion, Baroness Hale (Lords Neuberger, Kerr, Wilson and Sumption concurring) cited, among other cases, In re Suffield and Watts, ex p Brown,[9] Millensted v. Grosvenor House (Park Lane) Ltd.[10] and Paulin v. Paulin[11] (which, in turn, cited In re Harrison’s Share under a Settlement).[12]

By so holding in Re LB, the UK Supreme Court disapproved and overruled important, and previously binding, contrary Court of Appeal authority—namely, In re Barrell Enterprises.[13] In re Barrell had purported to limit a judge’s jurisdiction to change his or her mind after the handing down but prior to the perfection of a judgment to the “most exceptional circumstances” (at pp. 23-24). That limitation, sometimes referred to as the “Barrell jurisdiction,” has now been wholly swept away.[14]

In overruling In re Barrell, the UK Supreme Court also gave some sense of the considerations that ought to inform the exercise of a judge’s discretion as to whether to change his or her mind in an individual case. The court in Re LB stressed that there is one consideration that stands above all others. That is the imperative of dealing with the case “justly”. Close in importance to that is the question of whether a party may have reasonably relied to its detriment upon a judgment in its originally released form. Referring to an earlier decision of Neuberger J (as he then was) in In re Blenheim Leisure Restaurants Ltd. (No. 3)[15] Baroness Hale also adverted in Re LB to other, subsidiary considerations, including “a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given” as considerations that might justify a judge in changing his or her mind.[16] Her Ladyship was careful however to acknowledge that the list is not a closed one and that the determination is necessarily fact-dependent:[17]

This court is not bound by Barrell or by any of the previous cases to hold that there is any such limitation upon the acknowledged jurisdiction of the judge to revisit his own decision at any time up until his resulting order is perfected. I would agree with Clarke LJ in Stewart v. Engel [2000] 1 W.L.R. 2268, 2282 that his overriding objective must be to deal with the case justly. A relevant factor must be whether any party has acted upon the decision to his detriment, especially in a case where it is expected that they may do so before the order is formally drawn up … A carefully considered change of mind can be sufficient. Every case is going to depend upon its particular circumstances.

2.3 When is an English Judgment “Perfected”?

As has been noted, there remains a hard limit to the timeframe within which a judge in England can revisit his or her reasoning and conclusions and that is the stage where the subject judgment has been “perfected”.[18] At that point, the judge becomes functus officio.

Under the modern CPR, perfection means sealing.[19] Thus, judgments in England must be regarded as being necessarily provisional until the orders they embody and express have been perfected . In this latter regard, see Chandra and Anor v. Brooke North and Anor (Rev 3), where Thornton J stated the following:[20]

… [T]he Supreme Court has overruled the Barrell jurisdiction in In the matter of L and B (Children). This decision holds that a judge (including any appeal or first instance judge of whatever status) retains a jurisdiction to change his or her mind after he or she has made an order until the order is sealed. The order that was made takes effect immediately on being made but the power to revisit the order and confirm, vary or replace it with a different order must now be exercised on broad principles.

The focus of the present article falls, as noted, upon one particular factor that can trigger changes to provisional judgments. That is a factor of the English courts’ own making, namely, the aforementioned practice of circulating judgments to counsel in draft for correction before they have been put in final form and then perfected. Such judgments are, according to current court practice, expressly marked as being subject to correction. This reservation will exclude any reasonable, detrimental reliance upon them as being apparently, but not truly, definitive. Nevertheless, the practice of circulating judgments in draft to counsel for comment does inevitably elicit suggestions for change and, while the practice carries certain benefits, it has also sometimes led to unintended consequences together with some very public and unwelcome controversy.

3.0 Circulating Draft Judgments: How it All Got Started

As is evident from a review of the original Practice Direction issued in 1995 and two Practice Statements issued in 1998 that speak to the subject,[21] the custom of circulating draft judgments to counsel for their review grew out of a desire on the part of the English courts to “enable [counsel] to consider … judgment[s] and decide what consequential orders they should seek” so that those orders could be settled at the time judgment is given.[22] This led in turn to the need for a mechanism for identifying the definitive versions of judgments, given the mischief that had sometimes resulted from draft and final versions having both been released.

As the first Practice Statement acknowledges, in past, delays often occurred in getting clearly definitive versions of judgments out to the parties and others with an interest in the outcomes of cases, including accredited representatives of the media and law reporters. This was attributable to the time required to incorporate minor revisions that were often suggested by counsel following the oral delivery of reasons in open court. Similarly, when in the past written reasons were simply handed down without being delivered orally, a need to modify them to incorporate subsequently suggested minor revisions often arose. This sometimes resulted in two or more differing, written versions being brought into existence, compounding the problem of delay with unnecessary and avoidable confusion and uncertainty.

To overcome these problems, a decision was taken to institute a formal court policy, as expressed in 1998 by the Lord Chief Justice in the first Practice Statement, to permit judges to issue to counsel, on a confidential basis, draft reasons. These drafts were required to be clearly marked on each page, “Unapproved judgment: No permission is granted to copy or use in court”. The Lord Chief Justice introduced this policy upon the following rationale:

… copies of the judgment are being made available to the parties’ legal advisers … 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 …

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.[23]

Actual practice was quickly fine-tuned by the second Practice Statement, issued later in 1998,[24] given that difficulties persisted in having final and definitive versions of judgments issued with the necessary dispatch.[25] That refinement allowed for a middle ground type of written judgment that was definitive, sort of, and could be freely disseminated as such, but which remained expressly “subject to editorial corrections.”

Arguably—in the interest in getting judgments out more quickly—the second Practice Statement restored a measure of the uncertainty that the first Practice Statement sought to remove. Handed-down and publicly circulated judgments under that refinement of court policy could still not have been the last word, given the possibility of future editorial corrections going beyond the merely cosmetic.

Current practice has been governed, since 2013, by Practice Direction 40E which offers a rather more detailed and comprehensive regime for the issuance and revision of draft judgments. Practice Direction 40E introduced further refinements, including labeling refinements, to make the provisional status of draft judgments even more clear. However, despite its more elaborate prescriptions regarding dissemination and confidentiality, it does not—just as its predecessor Practice Directions and Practice Statement did not—expressly provide that counsel’s correspondence with the court concerning recommended changes to draft judgments must be kept confidential.

English case law confirms the usual requirement that counsel who communicate directly with the court about a matter before the court must simultaneously inform all other counsel of the fact and content of such communications.[26] Furthermore, that case law makes it distressingly plain that when counsel engage with the court for the purpose of persuading it to change a draft judgment cosmetically or substantively (or persuading the court to resist opposing counsel’s entreaties to do so), it is indeed a requirement of the law that those communications be strictly confidential. In this regard, see the statement by Lord Judge LCJ in Mohamed, R (On the Application of) v. Secretary of State for Foreign Affairs (Rev 1) (hereinafter, Mohamed Appeal No. 2):[27]

Draft judgments are necessarily circulated in confidence. It follows that all communications in response are covered by the same principle … The observations on the draft by any of the parties continue to be covered by the same confidentiality principles which govern the circulation of judgments in draft.

It was foreseeable that the English courts’ adoption of a policy and practice of confidentially circulating draft judgments to parties’ counsel for “correction” would lead, eventually, to controversy surrounding the extent to which counsel receiving draft judgments could transcend the merely cosmetic and seek, confidentially, to have revisions made to those judgments that go to substance.

Equally foreseeable, in the author’s view, was the larger risk that by embarking upon a process whereby confidential, court-sanctioned communications were to be undertaken between counsel and courts after trials and hearings in open court had ended—confidential communications about draft judgments that could change provisional outcomes substantively, that is—the English courts were vulnerable to being perceived to have unjustifiably compromised the open courts (or open justice) principle.

4.0 Some Case Law on the Practice of Circulating Draft Judgments

As it was initially conceived, the practice of circulating judgments to counsel in draft was aimed at catching typographical errors and minor flaws. This was so that the delay caused by the need to correct such flaws after a judgment had been handed down or given orally could be avoided. This is plain on the face of the first Practice Statement with its references to “typing errors, wrong references and other minor corrections of that kind”.[28] While counsel have certainly recommended more substantive changes to draft judgments, courts continue to emphasise that the practice is aimed mainly at intercepting and correcting errors that are cosmetic and technical so that the parties might be spared unnecessary delays and expense. For example, in Robinson v. Fernsby and Anor, May LJ stated[29]:

The practice of providing the parties’ legal representatives with a draft of written reserved judgments a day or two before the date appointed for handing them down is intended to promote efficiency and economy. Typographical corrections may be made so that the judgment is available in its final form for publication on the day that it is handed down. The parties are enabled to agree the form of any order and consequential order, for instance as to costs…[30]

The correction of typographical errors and others of largely cosmetic significance does remain the mainstay of what results from the circulation of draft judgments in England up to the present. Getting those sorted before judgments issue in final form is a laudable objective and those kinds of changes have not provoked any meaningful controversy. Rather, it is the less common—but nevertheless persistent—cohort of cases where, upon reviewing judgments in draft, counsel have sought to have courts make substantive changes to their reasoning and conclusions that have proven more vexing.

Before turning to some of those cases, however, it is useful to reflect again upon the implications of the recent UK Supreme Court’s 2013 decision in Re LB and its overruling of In re Barrell. The effect of that decision has been to lower the threshold for substantive reconsideration, by judges, of their own decisions before they are perfected. This effect has been brought about by removing the requirement that such reconsideration be permitted only in “extraordinary circumstances”. Arguably, the door to invitations by counsel for substantive reconsideration of draft judgments has been opened wider by Re LB. Pre Re LB case law must, for this reason, be treated with some caution inasmuch as the threshold for permissible reconsideration was, then, higher and more unyielding.

That said, there is still something to be taken from some of the earlier case law for present purposes. One key example will serve to illustrate. In Royal Brompton Hospital NHS Trust v. Hammond and Ors,[31] the Court of Appeal released the draft judgments of its three-member panel to the parties in accordance with the practice outlined in the earlier (pre-40E) Practice Direction and Practice Statement introduced in the 1990s. Beyond the expected suggestions for change dealing with typographical and other such errors, certain parties also supplied skeleton arguments “suggesting that some of the conclusions reached were wrong” (at 3). Counsel submitted that even under the strict limits imposed by the Barrell jurisdiction, reconsideration was permissible.

Members of the court delayed release of their judgments in final form and directed that skeleton arguments were to be filed “to assist the Court to decide whether it should reconsider the judgments and, if so, what the results should be”.[32]

Guidance was taken in Royal Brompton Hospital from the court’s earlier decision in Stewart v. Engel,[33] which stands for the proposition that, among other considerations, the overriding objectives of the then newly constituted CPR (reflecting Lord Woolf’s wide-ranging reforms) must govern the exercise of a court’s discretion to substantively reconsider a decision, when invited by counsel to do so, after counsel have reviewed a decision in draft. That overriding objective was summarised as follows in Royal Brompton Hospital:[34]

It is an overriding objective of the CPR that cases should be dealt with expeditiously and fairly with an appropriate share of the court’s resources being allotted to the case.

Per curiam it was determined in Royal Brompton Hospital that counsel’s request that the court revisit its reasoning and conclusions in all but one small area should be denied. This was in part on the basis that to allow a wholesale reopening, for further argument, of large areas of the court’s previously addressed reasoning would violate the overriding objectives of CPR. Citing particular concerns about finality and expense, the court noted pointedly that:[35]

If such submissions were to be entertained, we can see no end to this appeal as even a revised judgment would, if past experience is a guide, lead to another application to reconsider the revised judgment.

At the time of writing, Royal Brompton Hospital has not been considered since Re LB was decided. It is the author’s view that the overriding objective of CPR will continue to number among the somewhat coextensive factors acknowledged in Re LB that govern when it will be appropriate for judges to accede to counsel’s suggestions that they revisit substantive aspects of their decisions, and when to do so would not be appropriate.

Veolia E.S. Landfill Limited Anor v. The Commissioners for HM Revenue and Customs is a very recent (July 25, 2016), post-Re LB decision in which Nugee J provided a cogent summary of the applicable authorities before declining a request to hold a further hearing to deal with an issue raised with him after his draft judgment in that case was circulated.[36] Among the points addressed in Veolia was the growing jurisprudence that emphasises that while the practice of circulating draft judgments does open the door to substantive reconsideration, it is not meant to afford parties “a second bite at the cherry”:

… [T]he circulation of a draft judgment is not however intended to provide an opportunity for the unsuccessful party to re-open or re-argue the case, or to repeat submissions made at the hearing, or to deploy fresh ones: Mohamed at 4. A fortiori, the circulation of a draft judgment is not intended to provide an opportunity for the unsuccessful party to change his case, or adduce new evidence. It is not in the interests of efficient case management for a litigant, having seen from a draft judgment in detail why he has lost (or is about to lose), to be permitted to try and make good any gaps that the judge has found in his case by new evidence or argument. The trial is the opportunity for a litigant to put forward his case and the evidence he relies on; trial is not, and should not be allowed to become, an iterative process … [at para. 226]

With respect, the counsel of restraint that is reflected in that passage appears to attempt to restore some of what was lost with the abolition of the Barrell jurisdiction limiting substantive reconsideration to “extraordinary circumstances”. Could it perhaps be argued that, seeing an increasing pattern of requests for reconsideration of substantive points coming before the English courts, Nugee J was trying to return the genie to the bottle that, as one could argue, the UK Supreme Court opened in Re LB?

Lastly, GSTS Pathology LLP and Ors v. Commissioners for Revenue and Customs[37]—also a post-Re LB decision—arose out of a tax dispute. The claimants (collectively, “GSTS”) were faced with a potentially injurious change to the tax treatment given to the supplies they used in their business. They applied for an interim injunction to restrain the taxing authority from implementing the change pending a full hearing into its legality. The interim injunction was granted with oral reasons by Leggatt J. After reviewing the injunction ruling in draft, GSTS’s counsel then asked his Lordship to exclude from mention in the final version of his transcribed oral judgment two types of sensitive information. The present discussion of the case will focus upon only one type—that being commercially sensitive information regarding the deleterious effects that GSTS submitted the implementation of the changed tax regime would likely have on its commercial viability. GSTS were concerned that if competitors and customers came to know of those anticipated deleterious effects, GSTS’s business interests would suffer greatly if the new tax regime were ultimately to be implemented.

The taxing authority took no position on GSTS’s application to have the information—which the company considered to be commercially sensitive—excised from the written version of the decision granting the interim injunction. After careful consideration, Leggatt J declined GSTS’s request, noting that the entire premise of the injunction application, and the decision to enjoin that it yielded, was that the potential change in tax treatment would cause “serious damage to the business of GSTS”.[38] He went on in that paragraph to state that “I think it important in the interests of open justice to explain the facts which justify the conclusion”.

The decision on GSTS’s failed application to exclude commercially sensitive information from the written reasons on the injunction application adverts to the “principle of open justice” and, furthermore, to the requirement that “the public should be able to scrutinise the workings of the court system and to know the basis on which the court has reached its judgment in any given case”.[39] Counsel for GSTS acknowledged the existence of that principle but argued, unsuccessfully, that the court’s inherent jurisdiction to determine how the principle is applied survived the granting of the oral decision, and should be exercised in favour of removing the sensitive material from the written version of the decision.

The judgment of Leggatt J in GSTS[40] stands as a strong affirmation of the open court principle. It presents a clear demonstration of how that principle can serve as a check upon excessive, confidential entreaties from counsel requesting that judges exercise their otherwise rather broad discretion to revisit and revise their draft decisions.

5.0 The Binyam Mohamed Cases in the Divisional Court

We come now to the litigation that brought the English practice of circulating judgments in draft for “correction” out of barristers’ chambers, solicitors’ offices and courtrooms fully into view in a firestorm of very public controversy. Once a matter of professional interest mainly to judges and lawyers, this court practice was vaulted into the public consciousness of Britons in early 2010 via headlines like “Binyam Mohamed: Timeline of a torture case and the fight to keep it secret,”[41] and “Paragraph on Guantanamo detainee Binyam Mohamed becomes focus of torture row.”[42]

Binyam Mohamed pursued protracted legal battles with the British government over his treatment while detained by, and on behalf of, the US military in Pakistan, Afghanistan, Morocco and, ultimately Guantánomo Bay. Those battles produced numerous court decisions in England between 2008 and 2010. Commenting in the course of giving judgment in one of the two appellate decisions that are the subject of discussion below, namely Mohamed, R (On the Application of) v. Secretary of State for Foreign Affairs (Rev 1)[43] (hereinafter, Mohamed Appeal No. 1), Lord Neuberger MR (as he then was) observed that to that point:[44]

The open judgments extend to over 500 paragraphs, themselves in many cases then divided into sub-paragraphs. They cover nearly 150 closely typed pages of the Weekly Law Reports.[45]

It is beyond the scope of this article to canvass the entirety of that litigation in detail and so a brief summary of the background must suffice.

5.1 Who is Binyam Mohamed?

Binyam Mohamed, though born in Ethiopia, was at all material times a resident of the UK. Interestingly, he has a connection to Canada insofar as he emigrated from Ethiopia to this country in 1995 seeking asylum and remaining there for seven years.[46] However, he left without gaining permanent resident status and ultimately became, as noted, a resident of the UK.

There was some reason to believe that, soon after the 9-11 incident, Mr. Mohamed may have become involved with Al-Qaeda in terrorist activity in Afghanistan. Accordingly, he was arrested in Pakistan in 2004, then moved from one country to another (sometimes pursuant to alleged “extraordinary rendition” practices) and ultimately transferred by the US military to Guantánomo Bay in 2004.

During his five-year stay at Guantánomo he participated in hunger strikes and was required to spend some of his time in the facility’s highest security section, the notorious “Camp 5”. Mr. Mohamed contends that he was subject to various forms of torture both before and during his stay at Guantánomo, all of which were aimed at obtaining intelligence and confessions from him. Importantly, he further contends that the British government was aware of, and complicit in, the torture and mistreatment inflicted upon him by and on behalf of the US military. He remained at Guantánomo until 2009 when, after the US suddenly dropped all of its charges against him,[47] he was released and returned to the UK.

5.2 Mr. Mohamed’s UK Litigation Generally

While detained at Guantánomo, Mr. Mohamed correctly anticipated that he would eventually face charges at the instance of the US government in relation to his alleged terrorist activities based, in part, upon what he alleges were false confessions.[48] Accordingly, as a UK resident, through his British and American lawyers he requested that the UK government provide him with documents on a confidential basis to assist him in defending those charges. The UK government declined to comply with his request, citing grounds of national security. It is also clear that the UK government was under heavy pressure from the US government not to supply the information and documents Mr. Mohamed was seeking. Thus, on May 6, 2008, he filed proceedings in the UK. Terrorism charges were indeed brought against him in the US shortly thereafter on May 28, 2008. Those charges carried the potential for the imposition of the death penalty.

The charges against Mr. Mohamed were based, in part, upon confessions he had given to his US interrogators and their agents. Mr. Mohamed denied involvement in any terrorist activities and alleged that his confessions were false and had been induced through the use of torture and other inhumane treatment. He and his legal team believed that the documents and information he sought from the UK government would help him prove this.

The jurisdiction invoked by Mr. Mohamed in his UK application seeking documents and information—sometimes referred to as the Norwich Pharmacal jurisdiction—was described by Lord Neuberger MR as follows in his judgment in Mohamed Appeal No. 1:[49]

Mr. Mohamed’s application was based on the court’s jurisdiction to order a third party who has become involved in wrongdoing to give the victim of the wrongdoing any documentation in the custody of the third party to assist the victim in identifying and pursuing the wrongdoer—see Norwich Pharmacal Co v Customs and Excise Commissioners [1974] AC 133, 175 and Ashworth Hospital Authority v MGN Ltd [2002] UKHL 29, [2002] 1 WLR 2033, paragraphs 30 and 35. As the Divisional Court pointed out in paragraph 72 of the first judgment, it was “not necessary for Mr Mohamed to establish anything more [on the part of the UK Government] than innocent participation and certainly not knowledge of the alleged wrongdoing. However if a degree of knowledge were to be established, then the involvement or participation is the clearer”.

At the first of Mr. Mohamed’s hearings the Divisional Court had to consider as a threshold issue whether there had been any “wrongdoing” with respect to his treatment by US authorities and their agents. It quickly concluded, on the evidence, that he had established an arguable case that he had been mistreated and, indeed, that that wrongdoing arguably involved certain crimes against humanity and war crimes recognised by the UK International Criminal Court Act 2001.

Next, the court had to consider whether the UK government was involved, however innocently, in any such alleged wrongdoing. In the course of making that determination, the Divisional Court found inter alia that the British Security Service (the SyS) and the British Secret Intelligence Service (the SIS) had supplied questions and background information for use in the “interviews” of Mr. Mohamed. These were conducted by US and other authorities while he was detained. Moreover, the court determined that SyS and SIS became involved in that manner after US authorities supplied them particulars of Mr. Mohamed’s detention and his treatment during detention. Lord Neuberger MR notes in Mohamed Appeal No. 1 that the Divisional Court thus had little difficulty in concluding, in Mr. Mohamed’s favour, that the role of the UK government in the US authorities’ dealings with him went “far beyond that of a bystander or witness to the alleged wrongdoing”.[50]

On the third and fourth matters it had to consider—that is, were the information and documents sought by Mr. Mohamed “reasonably necessary” and “within the scope of available relief”?—the court also held for Mr. Mohamed. On the fifth and final point however—that being whether the court should exercise its Norwich Pharmacal jurisdiction in favour of granting the relief Mr. Mohamed was seeking—the Divisional Court demurred, saying that the Foreign Secretary ought to:

… have the opportunity to consider whether in all the circumstances he will invoke public interest immunity in respect of the disclosure of the information which would otherwise follow from the decision” (Mohamed Appeal No. 1 at para. 71, quoting from the Divisional Court’s first decision).

Some of the skirmishing that followed took place in closed sessions of the Divisional Court. Thus, that skirmishing generated both open and closed judgments. The litigation at that stage centred upon, inter alia, the Foreign Secretary’s (a) continuing resistance to release documents and information sought by Mr. Mohamed on national security grounds; and (b) submissions that certain paragraphs in circulated drafts of various judgments of the Divisional Court be redacted. Mr. Mohamed pressed hard against the Foreign Secretary’s initiatives in both areas. Because the subject matter of his litigation—namely, the alleged acquiescence (if not complicity) of British security and intelligence operatives in the torture of a British resident by US military investigators and their agents—soon became the subject of intense public interest, multiple intervenors joined the proceedings, both at the Divisional Court and later in the Court of Appeal. Among them were human rights advocacy groups—for example, Liberty, Justice and Index on Censorship—and media organisations. Some of the media organisations were based in the UK (for example, The Guardian, BBC, The Independent and The Times) and some were based in the US (such as, the New York Times, Los Angeles Times, Washington Post, Associated Press and Vanity Fair).

5.3 Paragraphs Redacted from the Divisional Court’s First Judgment

The Divisional Court’s first open judgment was handed down on 21 August, 2008, styled Mohamed, R (On the Application of) v. Secretary of State for Foreign and Commonwealth Affairs[51](hereinafter, the First Divisional Court Decision). Upon reviewing that judgment in draft, counsel for the Foreign Secretary urged the Divisional Court to redact seven paragraphs (the Redacted Paragraphs) from it on national security grounds. The Divisional Court did so, over Mr. Mohamed’s objections, but agreed that there should be a further, follow-up hearing to determine whether the Redacted Paragraphs should be restored in a revised version.

The Redacted Paragraphs were eventually restored and they are reproduced in Appendix “A” to this article. As the Divisional Court described them in its follow-up decision (hereinafter, the Divisional Court Follow-up Decision), they set out the:[52]

… gist of reports made by the [US] Government to the [UK] Government in relation to the detention and treatment of [Mr. Mohamed] whilst in custody by or on behalf of the [US] Government in the period 2002-2004

The Redacted Paragraphs, as can be seen, cast UK security and intelligence operatives in a negative light and suggest culpable acquiescence, if not active complicity, on their part, in the torture and inhumane treatment of Mr. Mohamed.

Mr. Mohamed’s arguments in favour of restoring the Redacted Paragraphs during the follow-up hearing were focused upon “the requirements of open justice, the rule of law and democratic accountability.”[53] The Foreign Secretary contended that national security and international relations imperatives constituted a competing and paramount public interest that could only be properly served by keeping the Redacted Paragraphs “out of the public domain”.[54] In the end the Divisional Court accepted the Foreign Secretary’s arguments over those of Mr. Mohamed noting, inter alia, that there was:[55]

… powerful evidence that intelligence is shared on the basis of a reciprocal understanding that the confidence in and control over it will always be retained by the State that provides it. It is a fundamental part of that trust and confidentiality which lies at the heart of the relationship with foreign intelligence agencies.

The above-described reciprocal understanding is often referred to in general discourse on the topic, in shorthand, as the “control principle”.[56]

In the background of these proceedings significant changes were unfolding in the US that were affecting British/American relations generally and, ultimately, came to affect Mr. Mohamed directly. Barack Obama succeeded George W. Bush and took office as the new President of the US. It was apparent that Mr. Obama’s new administration would approach foreign policy and issues of terrorism from a markedly different perspective than did the Bush administration. President Obama in particular had a very different view of the proper role and use of non-court military tribunals and other trappings of Guantánomo as part of the US approach to dealing with terrorism and its national security generally. Indeed, Mr. Mohamed was released from Guantánomo by the Obama administration and sent back to the UK only a couple of weeks after the Divisional Court rejected his argument that the Redacted Paragraphs should be restored. Even more importantly, the US government dropped all charges against Mr. Mohamed and provided to his American lawyers many of the documents he had been seeking from the UK government in his UK litigation. (Mr. Mohamed believed, correctly, that copies of them were in both US and UK hands.)

The landscape appeared, Mr. Mohamed thought, to be changing in his favour and so he applied for leave to argue for a reconsideration of the Divisional Court’s earlier rejection of his efforts to have the Redacted Paragraphs restored. This leave was granted. At the hearing of the reconsideration application, the Foreign Secretary—assisted by new evidence from US sources—continued to oppose the restoration of the Redacted Paragraphs, saying that the change in the US administration did not alter any of the fundamentals governing relations between the two countries. Included in the evidence tendered by the Foreign Secretary in support of that proposition was a letter from the CIA to which Lord Neuberger MR made reference in Mohamed Appeal No. 1:[57]

The CIA letter ended by saying that if the SyS were “unable to protect information we provide to you even if that inability is caused by your judicial system, we will necessarily have to review with the greatest care the sensitivity of information we can provide in the future.”

In a dramatic reversal, the Divisional Court handed down a decision (hereinafter, the Divisional Court Reconsideration Decision) in favour of Mr. Mohamed’s request for reconsideration.[58] The court was clearly less persuaded by the Foreign Secretary’s arguments than it had been previously and ordered the Redacted Paragraphs to be restored. In coming to that conclusion, the Divisional Court first noted that in what was clearly an exceptional case, the “control principle”[59] could not be taken to be absolute.[60] The court also expressly noted that the findings recorded in the Redacted Paragraphs were “necessary and justifiable” because the UK government and SyS not only knew of but facilitated the wrongdoing that had caused Mr. Mohamed’s suffering.[61]

The Divisional Court further held that the governments of both the US and the UK must have appreciated that the operation of the control principle could, in some circumstances, be qualified by court-ordered disclosure. Beyond that, the court did not consider that restoration and publication of the Redacted Paragraphs would, in fact, put information that was sensitive from a security perspective into the public domain. The court added that the release of documents in the US and statements made by the newly elected American President about a change of course in American policy surrounding Guantánamo and intelligence gathering generally had made the subject matter of the Redacted Paragraphs a matter of even greater public interest. For all of these reasons, the Divisional Court decided that the Redacted Paragraphs must be restored.

It is an interesting sidelight that the decision of the Divisional Court just described—in which it concluded that the Redacted Paragraphs must be restored—was itself initially circulated to counsel in draft form in the ordinary course. The Foreign Secretary, citing national security concerns, sought through his counsel to have some passages from it redacted. Upon hearing further submissions, the Divisional Court accepted some, but not all, of the proposed redactions to its judgment authorising publication of the Redacted Paragraphs in the First Divisional Court Decision.[62]

6.0 The Binyam Mohamed Cases in the Court of Appeal

With leave, the Foreign Secretary appealed the Divisional Court’s decision to restore the Redacted Paragraphs in the First Divisional Court Decision. In three concurring judgments in the Court of Appeal, displaying somewhat different reasoning, Lord Judge LCJ, Lord Neuberger MR and Sir Anthony May PQBD dismissed the Foreign Secretary’s appeal and no further appeal was taken to the UK Supreme Court. As a result, the Redacted Paragraphs have been restored and published in, inter alia, an appendix to Mohamed Appeal No. 1.[63] For present purposes, there is little need to summarise all of their Lordships’ reasoning on the appeal. The three concurring judgments in Mohamed Appeal No. 1 run, in total, to 296 paragraphs. Suffice it to say that the arguments that ultimately availed Mr. Mohamed when he brought the Divisional Court to the conclusion that the Redacted Paragraphs should be restored, and some others, found favour with the Court of Appeal.

6.1 Paragraph 168

Of greater interest for the purposes of this article is the fact that, after a draft of the court’s decision in Mohamed Appeal No. 1 was circulated in confidence to counsel for correction and comments, the Foreign Secretary took great exception to the content of paragraph 168 in the judgment of Lord Neuberger. Jonathan Sumption, QC—as he then was[64]—wrote a stern letter to the court urging it in the most forceful terms to remove from the paragraph what the Foreign Secretary considered offensive. A copy of Mr. Sumption’s letter is attached as Appendix B to this article. It is, in the author’s opinion, a most extraordinary document and it deserves a close, thoughtful and critical reading.

As can be seen upon a review of Mr. Sumption’s letter, the objections taken by the Foreign Secretary to the Master of the Rolls’ judgment in Mohamed Appeal No. 1 mainly turned not on issues of national security but rather on the characterisation of the culture within the British national security and intelligence establishment in the draft judgment. Among other concerns conveyed on page 1 of his letter, Mr. Sumption objected that the Master of the Rolls’ observations in paragraph 168 were “likely to receive more public attention than any other part of the judgments”. These observations would, according to Mr. Sumption, “be read as statements by the Court that [inter alia] … the Security Service does not in fact operate a culture that respects human rights or abjures participation in coercive interrogation techniques” and that there existed “… a culture of suppression in its dealings with the Committee, the Foreign Secretary and indirectly the Court, which penetrates the service to such a degree as to undermine any UK government assurances based on the Service’s information and advice”.

Mr. Sumption went on to say, inter alia, on page 2 of his letter that:

More generally, the Master of the Rolls’ observations, which go well beyond anything found by the Divisional Court, constitute an exceptionally damaging criticism of the good faith of the Security Service as a whole …

While Mr. Sumption had copied his letter to counsel for Mr. Mohamed—Dinah Rose, QC—and Ms. Rose had received it, copies did not reach counsel for all of the intervenors in the case. In this respect, the conventions associated with the practice of circulating draft judgments to counsel for correction and comment, for some apparently innocent reason, were not followed perfectly. This slip-up did not come to the attention of the Court of Appeal until later; the court assumed meanwhile that all counsel had received copies and that all who had corrections or comments of any kind would provide them swiftly in the ordinary course. Thus, as is noted at para. 7 of Mohamed Appeal No. 2:

In the absence of any intimation from any other party of the wish to respond or object to the observations contained in Mr Sumption’s letter, the Master of the Rolls [Lord Neuberger] decided substantially to amend the draft of paragraph 168, with minor consequential amendments to paragraphs 169 and 170 …

The court’s assumption—namely, that the suggestions made as to how the draft might be changed to take account of the Foreign Secretary’s concerns were unobjectionable to other parties—proved to be badly mistaken. The court continues at para. 7:

This second draft (and it remained a draft) of these paragraphs was circulated on Tuesday around lunchtime. During the course of the afternoon it gradually became apparent that something may have gone awry with the arrangements for the delivery of Mr Sumption’s letter, and in any event, that there were indeed objections both to the course taken by Mr Sumption and to his proposals for possible reconsideration of the original draft of para 168.

The Court of Appeal concluded that it was a priority that it give Mr. Mohamed the fruits of his long-awaited success in the Divisional Court below and release the second draft of its judgment on the appeal, to which the Redacted Paragraphs from the First Divisional Court Decision are annexed. It concluded in the decision that has been previously referred to in this article as Mohamed Appeal No. 2 that it must do so even though, as regards paragraph 168, its judgment was still a work in progress.[65] Moreover, the Court of Appeal concluded that since the second draft of its decision was to be released, the first version would have to be as well. Without the first draft being public, and with the discovery that Mr. Sumption’s letter had been, or was likely to be, released publicly,[66] the court reasoned there would be no way for citizens at large to make sense of the changes to paragraph 168 in the second draft.

The unhappy consequence of all of this was that before anything was received from the many counsel who, as it happens, did oppose Mr. Sumption’s recommendations for change to paragraph 168, both draft versions of the court’s decision entered the public domain, neither of which was definitive. The first included paragraph 168 as originally presented. The second contained paragraph 168 as amended by Lord Neuberger MR, having seen only the suggestions of Mr. Sumption and not the views of other counsel who wished their views to be considered.

The fact that Mr. Sumption’s letter had been circulated beyond the parties to the litigation and was ultimately released to the press drew condemnation from the Court of Appeal in Mohamed Appeal No. 2. It was Dinah Rose, QC—Mr. Mohamed’s counsel—who released it. The court commented that that was done in breach of the confidentiality requirement that forms an essential part of the court’s longstanding practice of circulating judgments to counsel in draft.[67] Arguments advanced by Ms. Rose that the wider dissemination of Mr. Sumption’s letter was permissible under Part 31.22 of the CPR[68]—which makes allowance for the use of disclosed documents for purposes other than for the proceedings in narrow circumstances—were rejected. Ms. Rose quickly offered an apology to the court. [69]

As can be seen in the account of events given in the judgment of Lord Neuberger MR in Mohamed Appeal No. 2,[70] his Lordship first considered—upon receiving Mr. Sumption’s letter—that extensive revisions to his original paragraph 168 were justified. He made those revisions and they too became public when the second draft was released. However, by then it had become known to Lord Neuberger MR that not all voices had been heard and so the court emphasised that the second version, though handed down and made public, was still a draft subject to further changes after all counsel’s views had been considered. Once Lord Neuberger MR had received and considered the input of other counsel—who, to say the least, were differently minded than Mr. Sumption regarding the proposed changes to paragraph 168—he concluded that much of what he had taken out of his first draft of the paragraph, based only on Mr. Sumption’s objections, now needed to be put back and that some other changes were needed as well. The final and definitive version of paragraph 168, prepared with the benefit of all required feedback from all counsel who had a view, is thus presented in Mohamed Appeal No. 2.[71] It is not greatly different from the version that the Master of the Rolls drafted before hearing from Mr. Sumption on behalf of the Foreign Secretary.

Paragraph 168, in all three of its iterations, is reproduced in Appendix C to this article.

6.2 Damage Control

The Court of Appeal recognised that it was essential that the full story of how paragraph 168 had gone through its various changes needed to be told publicly and transparently—hence the detailed chronology of events that is given in Mohamed Appeal No. 2. The court was alive to the controversy that the widespread dissemination of Mr. Sumption’s letter, and the substantially softened version of paragraph 168 in the second draft of Mohamed Appeal No. 1, had set loose and it wished to ensure that the full sequence of events was part of the public record. In one article[72] by Afua Hirsch, legal affairs correspondent for The Guardian, Shami (now Baronness) Chakrabarti, then director of Liberty—an intervenor and thus a party to the case—was quoted as follows:

“In all the years – I was first a government lawyer and then a liberty lawyer – I have never known the draft judgment process abused in this way,” said Shami Chakrabarti, director of Liberty, the human rights organisation which was a party to the case. “The purpose of using drafts is for typographical and factual corrections – minor matters such as names and dates.

“It is not to allow one party to re-run substantive arguments and tempt a court to tone down or change its judgments.”

She added: “I can’t believe that the Foreign Office thought they could get away with this. It shows the kind of contempt for the law that this case has always been about.”

Thus, in his judgment Lord Judge LCJ was moved to state, at para 17:

Ever since the publication of the seven redacted paragraphs [as an Appendix to Mohamed Appeal No. 1 when it was released as a draft], part at least of the discussion has understandably focussed on the events narrated in this judgment and the amendment to para. 168 following receipt of Mr Sumption’s letter. That discussion will continue, and unless it is fully informed a damaging myth may develop to the effect that in this case a Minister of the Crown, or counsel acting for him, was somehow permitted to interfere with the judicial process. This did not happen, and it is critical to the integrity of the administration of justice that if any such misconception may be taking root it should be eradicated.

These efforts at damage control were important, given the firestorm of public controversy that the changes to paragraph 168 had caused, including—even in the conventional, non-tabloid print media—headlines like “Binyam Mohamed case: Devil in the details around paragraph 168”[73] and “Appeal judge watered down Binyam Mohamed torture ruling”.[74]

7.0 Do the Benefits of Circulating Draft Judgments Outweigh the Costs?

The aforementioned—and calamitous—events that unfolded in the course of the Binyam Mohamed litigation invite a cost/benefit assessment of the English practice of circulating draft judgment to counsel for comment before they are made final.

7.1 Illusory Benefits?

One might venture that the formally acknowledged benefits of circulating draft judgments to counsel before they are finalised appear rather meagre when considered in context of the remarkable difficulties that the practice has created. Recall that the main focus in the Practice Direction and two Practice Statements that formally gave the court’s blessing to the practice to begin with in the late 1990s, fall upon essentially cosmetic concerns: “typing errors, wrong references and other minor corrections of that kind”, to quote the first Practice Statement. A companion priority was timing—a desire to hasten the release of judgments and to remove delays and confusion resulting from counsel’s suggestions for correction made shortly after judgments were first handed down or delivered orally.[75]

Yet, are these truly significant benefits and advantages? And, are they not attainable in other ways?

While it was asserted expressly in the first Practice Statement that “[l]awyers are not being asked to carry out proof-reading for the judiciary,”[76] is that, with respect, not precisely what counsel are being called upon to do when they are invited to scrutinise draft judgments for “typing errors, wrong references and other minor corrections of that kind”? Surely it is not unreasonable to expect judges, with the assistance of judicial clerks functioning as copyeditors, to catch such errors in their own judgments before they are released.[77]

It should surprise no one that when counsel discover, in draft judgments, factual findings and legal conclusions that are uncongenial to their clients’ interests, they are going to strive mightily, one last time, to persuade courts to arrive at more palatable findings and conclusions. To expect counsel in these circumstances to limit themselves to typographical and stylistic feedback is, in this author’s respectful view, to expect too much. Indeed, it could perhaps be argued that counsel, who are offered one last chance to persuade the court to a favourable outcome, may fail in their duties to the parties they represent if they allow that opportunity to pass them by.

Experience has shown, in keeping with the foregoing, that counsel’s suggestions for revisions of draft judgments regularly transcend the cosmetic and enter into the realm of the substantive. This has prompted judges, in turn, to attempt to force the genie back into the bottle by incorporating into their judgments statements like:

… the circulation of a draft judgment is not however intended to provide an opportunity for the unsuccessful party to re-open or re-argue the case, or to repeat submissions made at the hearing, or to deploy fresh ones”.[78]

This appears to be a losing battle. It is quite common, now, to find references in English court decisions to further submissions received from counsel seeking substantive changes after judgments have been circulated in draft. In addition to everything else they must cover in their decisions, judges now routinely must also provide the reasons why counsel’s further submissions regarding possible substantive changes to draft judgments were rejected or accepted, either wholly or in part. Having to consider, and respond, to late-received and confidential submissions must often negate any benefits in reducing delays that were intended to result from the practice of circulating judgments in draft.

Moreover, there is the abolition of the Barrell jurisdiction by the UK Supreme Court in 2013 to ponder. Re LB has opened the door to substantive reconsideration by judges of their findings and conclusions, even in non-extraordinary circumstances. Now, such reconsideration can occur any time before decisions are perfected: in other words, anytime before orders are sealed. Because the exercise, by judges, of their power to reconsider has been made so much more liberal with the elimination of the Barrell jurisdiction, it is reasonable to expect that counsel will, in the coming years, appeal more frequently and more forcefully to that power when they are given draft judgments to review whose reasoning and results their clients do not like.

To the extent that avoidance of delay is raised as an argument in favour of circulating draft judgments for comment prior to finalisation, actual experience with the practice reveals unintended consequences that have taken matters in quite the opposite direction. A great proportion of the jurisprudence generated by the Binyam Mohamed litigation, for example, was the direct result of that practice—starting with the Foreign Secretary’s ultimately unsuccessful effort to have certain paragraphs redacted from the first decision of the Divisional Court and concluding with the Foreign Secretary’s ultimately unsuccessful effort to have para. 168 of the judgment of Lord Neuberger MR almost wholly rewritten to remove criticisms of the practices of British security operatives and of the culture within the British security and intelligence establishment.

One is reminded of the Royal Brompton Hospital decision in which the Court of Appeal, at para. 19, stated “… we can see no end to this appeal as even a revised judgment would, if past experience is a guide, lead to another application to reconsider the revised judgment”.[79] One is also reminded of the words of Nugee J in Veolia: “[T]rial is not and should not be allowed to become an iterative process”.[80]

The Binyam Mohamed cases show that the practice of circulating draft judgments has demonstrably introduced a multiplier effect into the litigation equation in England. In some cases that has, far from reducing delays, led to increases in costs and delays. That multiplier effect could be removed if there were to be a return to the practice under which all parties, through their counsel, used to put their best foot forward at their hearings and then allowed courts to come to final decisions without further debate or argument. Under that approach, cosmetic errors that survive internal, rigorous copyediting and require correction can be addressed by way of corrigenda and substantive ones can be addressed by way of appeals.

7.2 Intolerably High Costs?

Looking past what might be only illusory benefits of circulating decisions in draft for comment before finalisation, one can see that there is, potentially, a much more serious casualty. The practice necessarily erodes some of the societal benefits that accrue to what is referred to in Canada as “the open court principle” and in the UK the “open justice principle”. It does so by inviting in camera exchanges between counsel and the court, sometimes going to important matters of substance, all after the public phase of court proceedings has ended.

Recall that while it is not prescribed expressly in the CPR or any associated practice materials, the case law that has grown up around the circulation of draft judgments to counsel has left no doubt: counsel’s exchanges with the court regarding suggested changes are to be kept strictly confidential. In the words of Lord Judge LCJ in Mohamed Appeal No. 2, at para. 12:

Draft judgments are necessarily circulated in confidence. It follows that all communications in response are covered by the same principle.

This insistence—upon maintaining the confidentiality of exchanges between counsel and judges in England regarding draft judgments—puts those exchanges beyond the reach of the public or the accredited media and renders an important aspect of English court proceedings wholly opaque. The potential that embarrassment, if not injury, to the repute of the administration of justice will result from the continued insistence upon confidentiality in this regard is writ large on the face of the troubled Binyam Mohamed litigation. In that litigation, the Court of Appeal found it necessary to go to extraordinary lengths to overcome a public perception, namely: that judicial independence had been compromised by in camera direct dealings between counsel for the Foreign Secretary and the Court of Appeal while its decision was on reserve. The Court of Appeal found it necessary to issue its judgment in Mohamed Appeal No. 2 to answer and rebut the suggestion that the Foreign Secretary, through his counsel’s private communications with the court, had succeeded in improperly influencing the court’s conclusions regarding the impugnable conduct of British security and intelligence service operatives and the institutional culture within which they were operating at the relevant time.

Keeping exchanges between counsel and the courts regarding draft judgments confidential is all the more difficult to justify in England in the wake of the ruling of the Court of Appeal in R. (Guardian News and Media Limited) v. City of Westminster Magistrates’ Court.[81] In that judgment, Toulson LJ.—as he then was—with Hooper LJ and Lord Neuberger MR concurring, affirmed inter alia that, in the interests of preserving open justice, counsel’s written submissions should be and are accessible to the public and accredited media representatives. The judgment of Toulson LJ commences with these stirring words:

Open justice. The words express a principle at the heart of our system of justice and vital to the rule of law. The rule of law is a fine concept but fine words butter no parsnips. How is the rule of law itself to be policed? It is an age old question. Quis custodiet ipsos custodes – who will guard the guards themselves? In a democracy, where power depends on the consent of the people governed, the answer must lie in the transparency of the legal process. Open justice lets in the light and allows the public to scrutinise the workings of the law, for better or for worse. Jeremy Bentham said in a well known passage quoted by Lord Shaw of Dunfermline in Scott v Scott [1913] AC 407, 477:

“Publicity is the very soul of justice. It is the keenest spur to exertion and the surest of all guards against improbity. It keeps the judge himself while trying under trial.”

Toulson LJ referred in Guardian News and Media to arguments he received to the effect that “…[J]udges increasingly receive and read written material which in previous years would have been given orally in open court. This makes it more difficult for journalists to follow the details unless one of the parties chooses to provide the press with copies of the documents” (at para. 15). His Lordship accepted those arguments and he was aided in doing so in part by Canadian authorities cited to him that relate to public access to court exhibits. Those authorities include: R. v. Canadian Broadcasting Corporation[82] and Attorney General of Nova Scotia v. MacIntyre.[83]

In the author’s view, Lord Justice Toulson’s reasoning with regard to permitting public and media access to the written submissions of counsel applies a fortiori to correspondence directed by counsel to English courts inviting judges to change their minds following the circulation of provisional, draft judgments. It is difficult to see a reason, in principle, why the same imperative for transparency would not mandate making the submissions that counsel tender in response to draft judgments public, barring some “need to protect social values of superordinate importance … [such as] the protection of the innocent”.[84]

As is the case in the UK, the separation of powers, judicial independence and the open court principle enjoy high prominence in the constitutional jurisprudence of Canada: see, for example, the decisions of the Supreme Court of Canada in Beauregard v. Canada[85] and also in R. v. Dagenais, R. v. Mentuck and Re Vancouver Sun.[86] As was held by the Supreme Court of Canada more recently in A.B. v. Bragg Communications Inc.,[87] the open court principle “requires that court proceedings presumptively be open and accessible to the public and to the media” and open, accessible and transparent court processes are a “hallmark of a democratic society”. Part of the rationale for that openness is that transparency will contribute to the prevention of real or apparent interference with judicial independence, by either state or private actors.

The court practice under discussion in this article enables, if not encourages, counsel to attempt to persuade judges to change their provisional conclusions on facts and law as expressed in draft judgments. Moreover, it does so by condoning confidential exchanges between counsel for state and private actors and judges. The adoption of such a practice would, in the author’s respectful opinion, be wholly incompatible with constitutionally entrenched notions of judicial independence, separation of powers and open courts as they are understood and upheld in Canada.

The unedifying spectacle created by the Binyam Mohamed litigation in the UK—in which the Court of Appeal was driven, after the fact, to place before the public all three versions of the notorious paragraph 168 of the Master of the Rolls’ judgment in Mohamed Appeal No. 2—amply illustrates the risks that attend the draft judgment circulation process. The Court of Appeal had to bring those three versions out into the open and explain them out of a very real concern that, otherwise, public confidence in the court’s impartiality and the legitimacy of its processes might be damaged. Future situations of that kind would best be avoided.

8.0 Concluding Comments

The developing law in England often provides Canadian courts with examples—beacons even—that can point the way forward. Occasionally, however, English legal practices will leave Canadian jurists, lawyers and legal scholars scratching their heads in wonderment and perplexity. The current practice under which English judges routinely circulate their judgments in draft for comment by counsel fits into the latter category. Viewed through this author’s Canadian eyes, it appears to be a practice that has brought few, and perhaps, illusory advantages. Those advantages appear, in turn, to have been largely offset by damage to the open court principle and damage to public perceptions of the integrity of the administration of justice in England. The circulation of court judgments in draft for comment before their finalisation and release is not, therefore, a practice that this author, at least, can recommend be imported to Canada.

9.0 Endnotes

  1. * This article is an adapted and revised version of a paper that was presented to the 20 Club in Vancouver on November 3, 2016.
  2. † BA, MA, LLB (UBC), a judge of the Provincial Court of British Columbia. This article reflects the views of the author in his individual capacity. Those views may not necessarily be shared by other members of the Provincial Court of British Columbia or by any of those who helpfully answered the author’s questions as he went about his research and inquiries while preparing this article. In the latter regard, the author wishes to express his appreciation to the following persons for their wise, patient and helpful assistance: Andrew Hogarth, QC of 12 King’s Bench Walk Chambers, London; Philip Newman, barrister, of 42 Bedford Row Chambers, London; Ian Cobain, senior reporter with The Guardian; Judge Daniel M.B. Steinberg of the Provincial Court of British Columbia; and “Mark” and his skilled and unfailingly helpful librarian colleagues at the British Columbia Courthouse Library Society in Vancouver. Thanks are also due to Professor G. Dannemann and the reviewers at the Oxford University Comparative Law Forum for their insightful comments regarding an earlier draft of this article. All of that said, responsibility for any errors of fact or analysis that may be found in this article falls exclusively at the author’s feet.
  3. See, for example, with respect to New Zealand, D. Mathieson, “Reforming Civil Procedure” (2012) 43 VUWLR 127 (135, n. 23).
  4. The Guardian, 10 February 2010 (www.theguardian.com/world/2010/feb/10/binyam-mohamed-judge-deleted-ruling).
  5. (1890), LR 24 QBD 103.
  6. Of course, where no substantive changes are made to it, a judgment—and the orders it contains—speaks from the date of its pronouncement, even before it is perfected. Thus, a draft of an unperfected judgment that reflected the court’s true and substantively unaltered final decision was held enforceable: Birmingham City Council v. Nott and Anor [2004] EWCA Civ 1756 (18).
  7. See note 19.
  8. [2013] UKSC 8, at 16.
  9. (1888), 20 QBD 693.
  10. [1937] 1 KB 717.
  11. [2009] EWCA Civ 221.
  12. [1955] Ch 260.
  13. [1973] 1 WLR 19 (C.A.): see paras. 20-27 particularly.
  14. That judges and counsel do truly now consider that the Barrell jurisdiction was of dubious merit, historically unsound and has indeed been wholly swept away by Re LB is made plain by, for example, the words of Cobb J in In the matter of RA (Baby Relinquished for Adoption) [2016] EWFC 47 (45), decided on October 14, 2016: “ I have proceeded (without demur from the Bar) on the basis that I would be entitled to alter, even reverse, the decision which I communicated in my draft judgment, and could do so at least at any time before the order made in these proceedings is drawn up and perfected (see In re Suffield and Watts, Ex p Brown (1888) 20 QBD 693 @ 697, and Re LB [2013] UKSC 8 at 16.”
  15. The Times, 9 November 1999.
  16. In re L and B (Children) (Preliminary Finding: Power to Reverse) [2013] UKSC 8, at 24.
  17. At 27.
  18. Subject, of course, to manifest errors of judicial inadvertence and slips that are remediable by recourse to a slip rule.
  19. See Rule 40.2(2)(b). In Canadian parlance, the “sealing” of an order is referred to as the “entry” of an order.
  20. [2013] EWHC 417 (QB); at 31.
  21. Practice Direction (Court of Appeal: Handed Down Judgments) [1995] 1 WLR 1055; Practice Statement (Royal Courts of Justice: Judgments) [1998] 1 WLR 825; and Practice Statement (Royal Courts of Justice: Judgments (2)) [1999] 1 W.L.R. 1.
  22. Practice Direction (Court of Appeal: Handed Down Judgments) [1995] 1 WLR 1055.
  23. Practice Statement (Royal Courts of Justice: Judgments) [1998] 1 WLR 825.
  24. Practice Statement (Royal Courts of Justice: Judgments (2)) [1999] 1 WLR 1.
  25. Ibid. at p. 1: “… [F]or a number of reasons it has not proved possible for the official shorthand writers to publish the official transcripts as quickly as we had hoped, and there has been some uncertainty as to the status of the judgment given by the court to the shorthand writers. We have decided to retain the embargo on copying the draft judgment which is sent to the parties two days before judgment is handed down. An approved judgment, when handed down in court, will now be entitled “Judgment: Approved by the court for handing down (subject to editorial corrections)” and every page of a judgment which is handed down in this form will be marked in a similar manner. There will be no embargo on copying a judgment handed down in this form, so long as its status is made clear …”.
  26. “It is an elementary rule of the administration of justice that none of the parties to civil litigation may communicate with the court without simultaneously alerting the other parties to that fact …”. Mohamed, R (On the Application of) v. Secretary of State for Foreign Affairs (Rev 1) [2010] EWCA Civ 158 (7).
  27. [2010] EWCA Civ 158, at 12.
  28. N 7.
  29. [2003] EWCA Civ 1820, at 95.
  30. In the author’s view the Robinson v. Fernsby reasoning must now be approached with some caution in the wake of the UK Supreme Court’s decision in Re LB and the overruling of In re Barrell by that decision. The Court of Appeal in Robinson v. Fernsby considered itself bound by In re Barrell and its reasoning accepted, on the authority of that case, that judges could only permissibly change their minds and alter their decisions substantively before perfection in “exceptional circumstances” or where there are “strong reasons” to do so. That limitation has now been eliminated and so references to the promotion of “efficiency and economy” as the chief or primary rationale for circulating drafts of judgments to counsel for comment will not, arguably, be given the same emphasis, post-Re LB. The promotion of efficiency and economy remain one rationale for the practice, to be sure, but the creation of opportunities for the detection and correction of substantive errors in fact finding and the application of the law is another, and the arguably dominant, rationale in the wake of the Re LB decision.
  31. [2001] EWCA Civ 778:
  32. At 3.
  33. [2000] 1 WLR 2268 (CA)
  34. At 11.
  35. At 19,
  36. [2016] EWHC 1880 (Admin), at 220-227.
  37. [2013] EWHC 1823 (Admin).
  38. At 15.
  39. At 3.
  40. At para. 8 of his decision, Leggatt J appears to express a view of the discretion English judges have to change their minds upon receiving and considering comments on their draft judgments that is a narrower discretion than that recognised by the UK Supreme Court in Re LB. In that paragraph, his Lordship states “…the purpose of providing a draft judgment in confidence to the parties and their legal representatives before the judgment is handed down is to enable them to assist the court by spotting typographical or minor factual errors and to consider consequential matters such as costs and whether to seek permission to appeal. It is not to allow submissions to be made on matters of substance, such as what facts should be relied on or referred to in support of any conclusion. Any such submissions ought to be raised at an earlier stage.” This passage, with respect, appears to be irreconcilable with the binding authority of Re LB that acknowledges a broad, though not wholly unfettered, discretion under which judges are free to “change their minds” until their judgments are perfected. At the time of writing, the decision of Leggatt J had not been subsequently considered. Time will tell whether the noted anomaly will impair the precedential force of the otherwise unassailable logic and outcome in GSDS.
  41. The Guardian, 10 February 2010. (www.theguardian.com/world/2010/feb/10/binyam-mohamed-torture-timeline-guantanamo).
  42. The Independent, 26 February 2010. (www.independent.co.uk/news/uk/home-news/paragraph-on-guantanamo-detainee-binyam-mohamed-becomes-focus-of-torture-row-1912032.html)
  43. [2010] EWCA Civ 65.
  44. At 7.
  45. There were both open and closed judgments given by English courts in connection with the claims that Binyam Mohamed litigated against the British government. The reference in the quoted paragraph to “open” judgments relates to judgments that are given in public in the ordinary course. In certain circumstances in the UK, proceedings can unfold in camera pursuant to “closed material procedure,” primarily for reasons of national security, and the judgments that result from them are “closed” judgments. “Closed material procedure” is governed by Part 82 of the CPR and Rule 82.16(1), which provides that: “Where the court gives judgment in any proceedings to which this Section applies, it may withhold any, or any part, of its reasons if and to the extent that it is not possible to give those reasons without disclosing information the disclosure of which would be damaging to the interests of national security.” As to whether the UK courts are free, constitutionally, to fashion “closed material procedures” for proceedings not specifically governed by statutes like the Terrorism Prevention and Investigative Measures Act 2011, c. 23 (Schedule 4) or the Counter-Terrorism Act 2008, c. 28 (Part 6), see Bank Mellat v. Her Majesty’s Treasury (No. 1) [2013] UKSC 38 and Christopher Forsyth’s thoughtful commentary on that case and its implications entitled “Principle or Pragmatism: Closed Material Procedure in the Supreme Court”, UK Const. L. Blog (29th July 2013). (ukconstitutionallaw.org/2013/07/29/christopher-forsyth-principle-or-pragmatism-closed-material-procedure-in-the-supreme-court/).
  46. The Canadian connection to Binyam Mohamed may run deeper. See the CBC News report of February 6, 2009 entitled “UK Resident Held at Gitmo Alleges Canadian Involvement in Torture.” (http://www.cbc.ca/news/canada/u-k-resident-held-at-gitmo-alleges-canadian-involvement-in-torture-1.853373). The report states, inter alia, the following:… Binyam Mohamed, 31, claims to have been tortured after being arrested in Pakistan in 2002. And he alleges that Britain was complicit in the torture and Canada may have also had a role in his rendition. Mohamed was flown to Morocco after his arrest and interrogated. He alleges that after refusing to speak with Americans, a third-party intermediary, who called herself “Sarah, the Canadian,” was brought in. Zachary Katznelson, Mohamed’s lawyer, spoke to CBC News exclusively on Thursday and shared sections of a diary his client says he kept during the ordeal. “If you don’t talk to me, the Americans are getting ready to carry out torture,” Mohamed wrote that Sarah told him. “They’re going to electrocute you, beat you and rape you.” …
  47. It remains open to prosecutors in the US to lay new charges against Mr. Mohamed in the future should they see fit to do so.
  48. Mr. Mohamed had previously been charged in 2004 but the procedure employed was ruled unconstitutional by the US Supreme Court in Hamdan v. Rumsfeld (2006) 548 US 757.
  49. At 63.
  50. At 70.
  51. [2008] EWHC 2048 (Admin).
  52. : Mohamed, R (On the Application of) v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 152 (Admin), at 1.
  53. At 54.
  54. At 16.
  55. At 74.
  56. See the discussion of the control principle in Mohamed Appeal No. 1 at 276 et seq.
  57. At 95.
  58. Mohamed, R (On the Application of) v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 2549.
  59. Recall that under that principle, where the intelligence agencies of two countries cooperate and share intelligence for national security reasons, the country that supplies the intelligence retains control of it and the receiving country must not do anything with it to which the supplying country objects.
  60. At 71 et seq.
  61. At 73.
  62. Mohamed, R (On the Application of) v. Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 2973.
  63. See Appendix A.
  64. Jonathan Sumption, QC—now Lord Sumption—was appointed per saltum to the UK Supreme Court on 11 January 2012.
  65. At 8-9.
  66. See Mohamed Appeal No. 2 (15-16).
  67. At 12.
  68. The Rule, which is entitled “Subsequent use of disclosed documents and completed Electronic Documents Questionnaires,” provides as follows:(1) A party to whom a document has been disclosed may use the document only for the purpose of the proceedings in which it is disclosed, except where –(a) the document has been read to or by the court, or referred to, at a hearing which has been held in public;(b) the court gives permission; or(c) the party who disclosed the document and the person to whom the document belongs agree.(2) The court may make an order restricting or prohibiting the use of a document which has been disclosed, even where the document has been read to or by the court, or referred to, at a hearing which has been held in public.(3) An application for such an order may be made –(a) by a party; or(b) by any person to whom the document belongs.(4) For the purpose of this rule, an Electronic Documents Questionnaire which has been completed and served by another party pursuant to Practice Direction 31B is to be treated as if it is a document which has been disclosed.
  69. “Dinah Rose QC apologises to court for handing Sumption letter to press.” The Lawyer, 11 February 2010. (www.thelawyer.com/issues/online/dinah-rose-qc-apologises-to-court-for-handing-sumption-letter-to-press/).
  70. See, especially, 26-29.
  71. At 29.
  72. “How 400 years of legal history were cast aside in the Binyam Mohamed case.” The Guardian, 10 February 2016.
  73. The Guardian, 10 February 2010.
  74. Ibid. (www.theguardian.com/world/2010/feb/10/binyam-mohamed-judge-deleted-ruling).
  75. While it might be imagined that the practice of “catching” problems that can be corrected while a matter is still with a court of first instance might make for fewer appeals, the author has seen no empirical support for that proposition.
  76. N 7.
  77. And deal with any that slip through by the issuance of corrigenda.
  78. Veolia (226).
  79. Royal Brompton Hospital NHS Trust v. Hammond and Ors [2001] EWCA Civ 778, at 19.
  80. Veolia E.S. Landfill Limited Anor v. The Commissioners for HM Revenue and Customs [2016] EWHC 1880 (Admin), at 226.
  81. [2012] EWCA Civ 420. Some of the Court of Appeal’s reasoning was drawn from its earlier decision in GIO Personal Investment Services Limited v Liverpool and London Steamship P & I Association Limited [1998] EWCA Civ. 3538.
  82. 2010 ONCA 726.
  83. [1982] 1 SCR 175.
  84. Ibid, p. 187.
  85. [1986] 2 SCR 56 (on judicial independence and the separation of powers).
  86. R. v. Dagenais [1994] 3 SCR 835, R. v. Mentuck [2001] SCJ No. 73 and Re Vancouver Sun [2004] SCJ No. 41 (all on the open court principle).
  87. 2012 SCC 46, at 11.