England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
NEWCASTLE UPON TYNE DISTRICT REGISTRY
(His Honour Judge McGonigal

		Royal Courts of Justice Strand London WC2 Wednesday, 17th July 2002

1. LORD JUSTICE WARD: His Honour Judge McGonigal, sitting as a deputy judge of the Queen's Bench Division of the High Court in Newcastle upon Tyne, landed himself in a most unfortunate plight in this case.
2. On 30th August 2001 he embarked upon the hearing of a preliminary issue in an action brought by the appellant, Mr Wilfred Taylor, against his former solicitors, Messrs Williamsons, for damages for professional negligence. That dispute arises in this way, to give it a fairly quick summary. Mr Taylor effectively held a shareholding of a holding company whose subsidiary (which I shall call "the company") carried on business in the field of pipe welding and fabrication for the oil industry. A substantial customer was Whessoe Heavy Engineering Ltd ("Whessoe"). The company was not sufficiently capitalised to expand as Mr Taylor wished. In March 1985 Whessoe brought 75% of the company and injected £750,000 into it by way of loan to supplement a further £250,000 which was to be advanced by Mr Taylor's holding company. Whessoe had a substantial contract with Shell to do work on a North Sea oil rig and engaged the company as a subcontractor. Mr Taylor's case is that the company did about £5.2 million worth of work, but Whessoe, which by virtue of its majority shareholding had its nominees on the company's board, so arranged matters as to treat £1.6 million of that sum as a loan. Mr Taylor disapproved of this accounting, contending that if the £1.6 million were paid to the company, the company would be free of debt, able to discharge its overdraft and thereby relieve him of his personal guarantee to the bank. It might even repay its loan to the holding company, to his eventual profit. Messrs Williamsons were engaged to advise him how best to proceed, and his case is that they failed to advise him to bring a derivative action or petition under section 459 of the Companies Act 1985 because the conduct of Whessoe as the majority shareholder was unfairly prejudicial to him as the minority shareholder.
3. In the event, Mr Taylor did not start any of those proceedings at all and the company went into voluntary liquidation in July 1996. The bank pursued Mr Taylor as a guarantor of the company overdraft and he claimed he had suffered damages in respect of that liability, as well as losing the opportunity to derive profit from his shareholding in the holding company had the engineering company been wound up when solvent.
4. A preliminary issue was ordered in these terms:

"Would a payment of £1.6 million and costs to the company have resulted in the company being returned to solvency so that it would have been in a position to satisfy the claimant's indebtedness to Nat West Bank in whole or in part and/or repay Holdings its loan of £250,000?"

5. On 30th August 2001 the judge received written opening submissions from both parties and heard evidence in the issue. The evidence for the claimant came from Mr Taylor himself and a Mr Ball, a chartered accountant who was involved in the accounts of the company between 1982 and 1986 as an independent consultant. The liquidator of the company gave evidence for the solicitors. Each side led expert accountancy evidence. It seems that at about 5.00pm the judge considered with counsel how the matter should be completed and he directed that counsel should exchange closing written submissions and any submissions in reply and then file all of them in the court, whereupon he would consider whether he wished to hear further oral argument or whether he would simply deliver his judgment. He directed that those submissions were to be sent to Leeds for his attention, ideally by 28th September 2001.
6. On 25th September, before the judge had received any of those submissions, the court issued a so-called "notice of reserved judgment" informing the parties that "the reserved judgment will take place on 26th October 2001 ... when you should attend". Accompanying that notice was a copy of the "judgment" endorsed as follows:

"It is directed pursuant to paragraph 6.1 of the Practice Direction - Miscellaneous Provisions relating to Hearings which supplements Part 39 of the Civil Procedure Rules 1998 that no note or transcript need be taken or made of this judgment.

This is a draft judgment which is subject to amendment and confidential until handed down. However the Solicitors may give copies on a confidential basis to Counsel and to their clients."

7. That judgment, running to 15 pages of typescript, was a full and detailed review of the evidence, and it concluded as follows:

"... whether one considers the matter on the basis of ability to pay debts as they fall due or on a balance sheet basis, the financial condition of [the company] was so bad in 1986 that, even if Williamsons had given the advice which Mr Taylor says they should have given and even if he had followed that advice and achieved total success in the sense of establishing a debt due to [the company] from Whessoe in the sum of £1.6 million, that success would not have resulted in any recovery by [the company] which would turn [the company] from an insolvent company to a solvent one, let alone a result that would yield any money for Mr Taylor personally. The answer, therefore, to the Preliminary Issue is `no' and Mr Taylor's claims in this action are dismissed as having no real prospect of success."

8. That produced some consternation in the claimant's camp. He sought to obtain the defendants' agreement to invite the judge to recuse himself and to agree to a rehearing before another judge, with the transcripts of the evidence standing, without the need to recall the witnesses again. The defendants would not agree. They took the view that Judge McGonigal could, and should, consider the submissions and deliver a final judgment in the light of them and any oral argument he wished to hear.
9. In the light of that disagreement the claimant applied to the court for an order:

"... that this matter should be re-tried before another judge and the matter be listed for case management conference before that judge in order to determine how the matter should be re-tried."

10. The grounds upon which that application were made were the facts I have recited, concluding:

"As a consequence of this the claimant can no longer have a fair trial in front of Judge McGonigal."

11. That notice was dated 18th October 2001.
12. Of the court's own motion, and with the court making the order of its own initiative and without a hearing, Judge McGonigal ordered on 22nd October that the hearing listed for 26th October, which was the hearing when the judgment was to be handed down, was to be vacated, but directions were given that the matter be relisted for hearing on 20th December to consider the claimant's application for a retrial. Directions were given that the claimant and the defendants, if they so wished, were to file and serve the submissions in reply that they would wish to make to the other party's closing submissions. The defendants (either then or previously, I am not sure which) put in their own written submissions on the preliminary issue. The claimant declined to do so, understandably, because he did not wish to waive the irregularity.
13. Those applications eventually came before the court on 14th February. As a result of that hearing Judge McGonigal ordered:

"1.The draft judgment in this matter will be recalled.

2.The judge should not recuse himself and will not order a retrial.

3.Permission for leave to appeal to the Court of appeal is refused.

4.Counsel for the claimant and defendant to serve and file closing submissions within 21 days from the date of this order.

5.Counsel for the claimant and for the defendant to file and serve replies to closing submissions within 14 days thereafter.

6.Claimant to pay the defendant's costs of this application."

14. Before going to the judgment leading to that order, I can perhaps mention (simply to complete the picture, although strictly it is not at all material for the purpose of this present appeal) that it seems that in due course both parties put in their written submissions on the preliminary issue. The judge duly gave them consideration and in May 2002 handed down judgment on the preliminary issue. That judgment has been placed before us. It is a judgment which now runs to 31 pages of typescript, so it has doubled in size. We have not analysed it in any detail at all, but mere flicking through the pages indicates the frequent references the judge made to the submissions that had been addressed to him. He gave permission to appeal that judgment, which arrived at the same conclusion as the judgment he had wished to hand down in October, but unfortunately that appeal has not been linked to this. That may result in an unfortunate duplication of costs, but there is nothing we can do about that.
15. The judgment on 14th March was quite short. The judge recorded that it was common ground between the parties that he could amend the draft judgment. He said:

"Not only does the draft expressly say that it is subject to amendment, but it is clear from the cases, and my own experience is that I have made substantive changes to draft judgments."

16. The argument being put to him was that he had been infected with apparent bias. He said this in para 8:

"In this case I produced a draft judgment without considering either sides' closing submissions in the belief that I had heard oral ones, and the concern here is not that I have been not impartial in the past, but that I will not be impartial in the future because, perhaps, of a wish to show that I was right in the first place."

17. He then addressed the first point of Mr Platford, who appeared for the claimant, that the important question is the appearance to the objective outsider. He said that in the first place the draft judgment was circulated stating expressly on its face that it was subject to amendment until handed down. He said, secondly, that judges can and do reconsider and amend their judgments even after judgment has been handed down, and that shows that expressions of view by a judge in a judgment do not, without more, indicate that the judge cannot review the judgment impartially. There was nothing in the case to suggest that he could not do that. He said in para 12:

"The question is whether the expression of a view by a judge in the form of a draft judgment can be apparent bias."

18. He said in paragraph 13 that:

"The draft judgment is, in my view, essentially an expression of provisional conclusions ..."

19. He was satisfied that those provisional views could be changed:

"As an expression of provisional views, it is not anything which constitutes a bias or the appearance of bias. I therefore conclude that there is nothing that should prevent me from considering both sides' closing submissions and reconsidering the draft judgment in the light of them. I will formally recall the draft judgment to make it clear that it is to be reconsidered."

20. In addressing the argument that he should recuse himself, he had regard to the overriding objective. He held that the parties were on an equal footing as neither had had their closing submissions actually considered. There would be further expense and delay in a retrial, which was disproportionate to the issues involved. So he declined to recuse himself.
21. We do not have a copy of his judgment dealing with costs, and I will return to that in a moment.
22. Mr Platford first challenges the judge's expressed view that the draft judgment is essentially an expression of provisional conclusions. He submits that the document distributed by the judge was not a preliminary view at all, but was his judgment, to be treated as if the judge was interrupted in giving oral judgment in court. Mr Platford relies on a dictum of Brooke LJ in Prudential Assurance Co Ltd v McBaines Cooper [2000] 1 WLR 2000, at p.208F, where he said:

"It follows that under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties' legal advisers."

23. Although this judgment said on its face that it was a "draft judgment which is subject to amendment", Mr Platford submits that the amendments envisaged are those of the character described in Practice Statement (Supreme Court: Judgments) (No. 2) [1999] 1 WLR 1 as being "subject to editorial corrections", but not to the substitution of wholly different conclusions.
24. I do not doubt that ordinarily that is so. The judge is always at liberty to make those editorial corrections, whether before handing down or afterwards. As was said in the judgment of the court in Royal Brompton Hospital National Health Service Trust v Hammond & Ors [2001] EWCA Civ 778, at para 7:

"Counsel for the respondents submitted that a court would more readily alter its judgment before it was officially handed down than afterwards. We disagree. ... In particular there does not appear to us to be any logical reason why a judgment should be more readily altered after delivery to the parties, but before handing down, than during delivery of an oral judgment or immediately after delivery."

25. I am ready to accept that, subject to making these editorial corrections, the draft judgment distributed by Judge McGonigal was intended by him to be his judgment, and his final judgment, on the issue before him. Had no point been taken about the conclusion he had reached, it no doubt would have led to an order being made and perfected dealing finally with the preliminary issue he had to decide.
26. That, however, is not what happened. Mr Platford very properly raised the objection that the judge had not considered the final submissions of the parties, the claimant in particular. The judge acknowledged that he had produced his draft judgment without considering either side's closing submissions in the belief that he had heard oral ones. It is abundantly plain to me from the tenor of the February judgment that he was expressing his willingness to reconsider the substance of the preliminary issue judgment, not simply the editorial amendments to it. The moment he entertained the prospect of revisiting his findings upon which his conclusions rested, he was indicating his willingness to treat the draft judgment as an expression of provisional views. By that expression of willingness, findings which might have become final were being treated as provisional. He had done no more than change his mind or, perhaps more accurately, shown a readiness to do so. In my judgment the judge could justifiably have said, "The draft judgment is in my view essentially an expression of provisional conclusions." The use of the present tense accurately described the position as it had developed. So it seems to me that this is more a semantic point and one of little substance.
27. Mr Platford in his oral submissions developed the argument into a point of greater significance. He drew specific attention to the way the judge indicated that he had believed he had heard oral submissions. Mr Platford then made the bold submission that the judge could not have entertained that belief because, first, he did not on the face of the judgment address any submissions he thought might have been made - an omission the more glaring because it was a case which had changed its shape as the evidence emerged; secondly, because he was "confused and confusing" about the nature of the document he had distributed. In essence, Mr Platford submits (though these are not his words, they are mine) that it was disingenuous of the judge to pass the draft off as simply an expression of provisional views when, as it had been drafted and delivered, it was intended to be, subject only to minor amendments, his last word on the issues he had covered. If Mr Platford is correct and the judge was deliberately misleading the parties and the interested and informed observer at the back of this court, then he would have rendered himself, in my view, not only unfit to hear this case, but perhaps unfit to be hearing any case at all. It is therefore a serious charge.
28. Mr Smith, for the respondents, submits that it is inconceivable that the judge would deliver a judgment knowing that he had not received the closing submissions. It was, he submits, no more than a simple mistake.
29. I have no hesitation in rejecting Mr Platford's submissions. I accept that this was a genuine failure of recollection. It was undoubtedly an extraordinary mistake to have made, and I am sure, if the judge reflects back on it for a moment, he might agree that it could have been acknowledged by him with more humility and more apology. But I do not accept that he has told an untruth in his judgment or that he has been infected with actual bias or any impartiality which has rendered him unfit to continue.
30. The real point, in my view, is whether this is a case of apparent bias. Bias was described by Lord Phillips of Worth Matravers MR, giving the judgment of this court in In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, at p.711, para 37, as follows:

"Bias is an attitude of mind which prevents the judge from making an objective determination of the issues that he has to resolve. A judge may be biased because he has reason to prefer one outcome of the case to another. He may be biased because he has reason to favour one party rather than another. He may be biased not in favour of one outcome of the dispute but because of a prejudice in favour of or against a particular witness which prevents an impartial assessment of the evidence of that witness. Bias can come in many forms. It may consist of irrational prejudice or it may arise from particular circumstances which, for logical reasons, predispose a judge towards a particular view of the evidence or issues before him."

31. As Balcombe LJ observed in Bahai v Rashidian [1985] 1 WLR 1337, at p.1346:

"Bias is the antithesis of the proper exercise of a judicial function."

32. The test for apparent bias was considered by this court in the Medicaments case, where, at p.726, in paras 85 and 86, the Master of the Rolls said this:

"85.When the Strasbourg jurisprudence is taken into account, we believe that a modest adjustment of the test in R v Gough is called for, which makes it plain that it is, in effect, no different from the test applied in most of the Commonwealth and in Scotland. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.

86.The material circumstances will include any explanation given by the judge under review as to his knowledge or appreciation of those circumstances. Where that explanation is accepted by the applicant for review it can be treated as accurate. Where it is not accepted, it becomes one further matter to be considered from the viewpoint of the fair-minded observer. The court does not have to rule whether the explanation should be accepted or rejected. Rather it has to decide whether or not the fair-minded observer would consider that there was a real danger of bias notwithstanding the explanation advanced. Thus in R v Gough, had the truth of the juror's explanation not been accepted by the defendant, the Court of Appeal would correctly have approached the question of bias on the premise that the fair-minded onlooker would not necessarily find the juror's explanation credible."

33. In the light of that judgment, I should add that not only do I accept that Judge McGonigal was genuine in his explanation, but, more importantly, it would have so appeared to the fair-minded observer listening to the exchange.
34. That test was considered by the House of Lords in Porter v Magill [2002] 2 WLR 37, at p.83, where Lord Hope of Craighead said:

"I respectfully suggest that your Lordships should now approve the modest adjustment in the test in R v Gough set out in that paragraph [paragraph 85 of the judgment of the Master of the Rolls in In re Medicaments]. It expresses in clear and simple language a test which is in harmony with the objective test which the Strasbourg court applies when it is considering whether the circumstances give rise to a reasonable apprehension of bias. It removes any possible conflict with the test which is now applied in most Commonwealth countries and in Scotland. I would however delete from it the reference to `a real danger'. Those words no longer serve a useful purpose here, and they are not used in the jurisprudence of the Strasbourg court. The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased."

35. In Taylor v Lawrence [2002] 2 All ER 353 at p.370, para 61, Lord Woolf CJ, giving the judgment of the full Court of Appeal, added this:

"The fact that the observer has to be `fair-minded and informed' is important. The informed observer can be expected to be aware of the legal traditions and culture of this jurisdiction."

36. In my judgment there is little doubt about the legal tradition and culture. In Bahai, for example, Sir John Donaldson MR said, at p.1342:

"The fact that a judge has determined the issues in an action and in so doing has expressed views on the conduct of the parties and of the witnesses, neither constitutes bias nor the appearance of bias in relation to subsequent applications in the action."

37. Peter Gibson LJ said in Times Newspapers Ltd v Singh and Choudry & Anr (Court of Appeal, 17th December 1999):

"It is not unknown for judges to be asked to reconsider a matter, in the light of new material or submissions, before any judgment is drawn up. They may be expected to do so, where appropriate, conscientiously and impartially, whatever preliminary views may have been expressed."

38. Brooke LJ said in Prudential Assurance, at p.208:

"It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or for any other reason) before handing it down formally in Court. This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected: In re St Nazaire Co. (1879) 12 ChD 88, 91; In re Suffield and Watts, Ex parte Brown (1888) 20 QBD 693, 697. It has also always been within a judge's powers to alter at any time his or her judgment if it has been delivered orally, although not so as to contradict the order made on the judgment once it has been perfected: ..."

39. Most recently, in The Royal Brompton Hospital case, this court said, at para 4:

"There can be no doubt that a judge has jurisdiction to recall, vary or alter his judgment or proposed order up to the time that the order is perfected. That has been the law for many years as appears from In re Harrison's Share Under a Settlement [1953] Ch 260; In re Barrell Enterprises [1973] 1 WLR 19; Pittalis v Sherefettin [1986] QB 868; Hillman v Rogers (CA unreported, 30th April 1998). That jurisdiction remains whether the judgment has been given orally, has been handed to the parties in draft or has been formally handed down. That jurisdiction of the Court was not altered by the CPR as was made clear in Stewart v Engel [2000] 1 WLR 2268."

40. In my judgment the fair-minded and appropriately informed observer would conclude that there was no real possibility that Judge McGonigal was biased in the sense that he had prejudged his decision or that he would maintain the decision. He had expressed himself ready and willing to decide after hearing the full submissions. He had conducted the trial fairly and impartially in the sense that he heard the evidence called for both parties and considered it in the light of the skeleton arguments submitted by each. In so doing, he had favoured neither.
41. Mr Platford relies upon the assertion that he believed that he had heard the oral submissions. Mr Platford submits that that indicates that either he was not influenced by the submissions he thought he had heard, as if they were not worthy of note (it being clear from the draft judgment that he does not refer to any submissions at all), or, alternatively, he simply did not care what was going to be submitted. Mr Platford says that this demonstrates that he had considered the case without the benefit of the submissions he wanted and the picture generally is, putting it colloquially, "I do not care what submissions are made." Mr Platford submits that the inference to be drawn from that by the fair-minded and informed observer was that no submissions which could have been made would have had any impact on his mind. Furthermore, as he puts it in his skeleton argument at para 19:

"... it is human nature to try to justify such an expression of opinion rather than admit to being mistaken about the case."

42. Mr Smith, on the other hand, submits that his client was apprehensive about the rehearing for fear that the judge might bend over backwards in his desire to be fair and unwittingly favour the claimant on the reconsideration.
43. In my judgment, the observer will know, as I have indicated, that judges frequently revisit judgments, whether delivered orally or handed down in writing. They do so, or may do so, when requested to review the decision. They do so in circumstances which are not limited to cases where there is fresh material placed before the court for reconsideration. Judges also do so simply because they are invited to change their minds on points actually addressed to them and referred to in the judgment or to consider matters which it is submitted the judge overlooked in coming to a decision.
44. It is necessary to consider all the circumstances of the case. Mr Platford draws our attention specifically to the circumstances that the delivery of the judgment here was a finding against Mr Taylor, dismissing his claim, and that it was reached without hearing the submissions that his counsel wished to make, after a good deal of evidence had been heard. Mr Platford refers also to the absence of any reference in the judgment to submissions made on behalf of the parties. He refers, finally, to the assertion that the judge believed he had heard oral argument. To my mind, however, the important circumstances in this case are that the judge acknowledged just as soon as his error was pointed out to him that he wished the closing submissions to be delivered to him and later made an express order to that effect. By implication, which the informed observer would draw, he was indicating that he wished to revisit his judgment and was willing and ready to do so. The observer will have noted that in fact this judgment never was handed down, although it was distributed to be handed down. The observer will have noted the judge's reference in his February judgment to his formally recalling the draft judgment, to make it clear that it was to be reconsidered.
45. In the light of those circumstances, I am satisfied that the charge of apparent bias cannot be established. Consequently, it left the judge free, in the exercise of his discretion, to reconsider the matter. He was willing to do so. It left him free to consider whether he should in any event stand down. But as Mr Platford realistically acknowledges, if the charge of apparent bias is not sustained, the challenge to his refusing to recuse himself cannot really be supported on this appeal, and he has not attempted to do so.
46. That leaves the question of costs. I confess that my first impression was that it was harsh that a litigant, even - or should one these days say especially - one publicly funded, should have been put to extra expense by reason of an error of the judge. We do not have his judgment on costs and it is difficult, therefore, to see how he could so plainly have misdirected himself or so wrongly have exercised his discretion that we should interfere. Having thought carefully about it, it seems to me that there is force in Mr Smith's submission that the claimant was determined, as his application of 18th October indicated, to force to the point of decision the issue of whether the judge should recuse himself or not. That was the matter that was considered on 14th February and on that application the claimant lost. In those circumstances, notwithstanding a sneaking sympathy for the claimant (because I understand his personal disquiet and I have moderately criticised the judge for his reticence in dealing with it), nonetheless the costs should follow the event.
47. I would as a result dismiss the appeal against the order of 14th February.
48. LORD JUSTICE TUCKEY: I agree.
49. LORD JUSTICE CLARKE: I also agree.
50. On 25th September 2001 the judge sent to the parties a judgment which was described on the first page as "a draft judgment which is subject to amendment and confidential until handed down". That judgment was not, however, a provisional judgment in the sense that it was expressed as being subject to change in the light of further submissions to be made by the parties. On the contrary, the judge thought that he had already heard closing oral submissions from the parties.
51. Mr Platford submits that it was a final judgment and that from the moment it was distributed to the parties the judge could not properly reconsider the judgment based on further submissions on the merits because a fair-minded and informed observer would conclude that there was a real possibility that the judge was biased.
52. I agree that if a fair-minded and informed observer would have concluded that there was a real possibility of bias and that the judge might not subsequently arrive at a fair decision based on such further submissions, the judge should have recused himself. That conclusion follows from the principles identified by Lord Phillips MR, giving the judgment in this court in In re Medicaments (No. 2) [2001] 1 WLR 700, at para 85, as modified by Porter v Magill [2001] UKHL 67; [2002] 2 WLR 37, per Lord Hope, with whom the other members of the House agreed, at para 103: see also the passage which has been quoted by Lord Justice Ward from the judgment of this court given by Lord Woolf CJ in Taylor v Lawrence [2002] 2 All ER 370. As so modified, the relevant principle can be stated as follows. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ascertain whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the judge was biased.
53. The question is therefore whether a fair-minded and informed observer, who knew that the judge had distributed the judgment to the parties without receiving and considering written submissions or hearing oral submissions, would have concluded that there was a real possibility that the judge was biased and might not thereafter fairly consider the submissions from the parties and reach a just conclusion.
54. In my opinion the informed observer would know that the judgment sent to the parties was not a final judgment in the full sense, but was a judgment of the kind described by Brooke LJ in Prudential Assurance Co Ltd v McBains Cooper [2000] 1 WLR 2000 at p.2008:

"It is clear that when a copy of the judgment is sent to the parties' legal advisers in accordance with this new practice, it is not at that time being given or made within the meaning of CPR r.40.7 (`a judgment or order takes effect from the day when it is given or made'): compare Holtby v Hodgson (1889) 24 QBD 103. It is also clear that the judge is at liberty to alter the terms of his or her judgment (whether to make minor corrections or for any other reason) before handing it down formally in court. This, however, is nothing new, because it has always been within the powers of a judge to reconsider his or her decision at any time before it is entered and perfected: ... It has also always been within a judge's powers to alter at any time his or her judgment if it has been delivered orally, although not so as to contradict the order made on the judgment once it has been perfected: ...

It follows that under the new practice the process of delivering judgment is initiated when the judge sends a copy of it to the parties' legal advisers."

55. In principle, the judge had a wide discretion to reconsider his judgment before the order was perfected. This court has considered the circumstances in which the court should be willing to exercise that discretion. In a number of cases, including Stewart v Engel [2000] 1 WLR 2268 and Royal Brompton Hospital National Health Service Trust v Hammond (unreported, 23rd May 2001) EWCA Civ 778, this court has emphasised that the discretion should be exercised only in an exceptional case or for a strong reason. However, it is difficult to imagine a stronger case than one in which the judge has delivered a judgment without waiting for the expiry of the time limit which he himself laid down for the delivery of final submissions. The judge was thus entitled and, indeed, bound to recall his judgment and consider the issues afresh in the light of the further submissions of the parties, unless he should have recused himself in accordance with the modified principle in In re Medicaments (No. 2), to which Lord Justice Ward has referred and which I have set out shortly above.
56. Would a fair-minded and informed observer think that there was a real possibility that the judge might not consider the submissions of the parties fairly or arrive at a fair conclusion on the preliminary issue? I agree with Lord Justice Ward that the answer to that question is no. It is true that the judge made a mistake. He thought that he had heard the oral submissions of the parties and conscientiously reached conclusions on that assumption. There is no reason why he should not be able to reconsider the whole matter fairly in the light of further submissions once he was aware of his mistake. I too can see no reason why the judge should have recused himself. I note that in the event the judge did consider submissions subsequently made by the parties and produced a significantly more detailed judgment taking account of those submissions. If his ultimate conclusions are wrong, then this court will no doubt reverse them. If they are right, they should stand. In that way the overall justice of the case will be served.
57. In all the circumstances, for these reasons as well as for those given by my Lord, I agree that this appeal should be dismissed.
Order: appeal dismissed with costs; costs order made pursuant to section 11 of the Access to Justice Act; public funding costs assessment for the appellant.