England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
FAMILY DIVISION (PRINCIPAL REGISTRY)
HHJ Horowitz QC
HHJ Plumstead

		Royal Courts of Justice Strand, London, WC2A 2LL
		26 June 2014

Lord Justice Patten :

1. The Court has before it two appeals by Mr A (whom I will refer to as the father) against orders made by His Honour Judge Horowitz QC and Her Honour Judge Plumstead in proceedings under Schedule 1 of the Children Act 1989 concerning a child (N).
2. In the case of the first appeal (but not the second), Mr A also requires permission to appeal but we proceeded to hear full argument on the points in issue.
3. N is the child of the parties' former relationship who was born on 22 March 2001. He spends time with both parents who share the cost of his schooling and other expenses. But behind this façade of co-operation lies a history of bitterly fought litigation which has occupied the courts for many years and continues today.
4. The first order in time is that of Judge Horowitz QC which is dated 29 August 2013. This was made in the context of an application by the respondent for a lump sum and periodical payments under paragraph 1(5)(a) of Schedule 1. The application is contested and it is unnecessary for the purposes of this appeal to go into the reasons for the application or the father's grounds of opposition.
5. Although listed for hearing before Judge Horowitz on 29 August, it became apparent to him that neither party had sufficiently complied with their obligations to give proper disclosure of their respective financial positions. Although both parties had filled in the requisite Form E1, these had not been exchanged until, I think, the morning of the hearing and the father, having disclosed £40,000 worth of capital in a bank account which he contends is more than sufficient to meet any tenable claim by the mother, was refusing to give further details of his income or outgoings. The mother's evidence in support of her application, which includes a claim for funds with which to buy a car, was considered by the judge to be equally opaque lacking as it did sufficient details of her existing car and the problems with it and details of her other expenditure on holidays and the like for her son.
6. The judge therefore adjourned the substantive hearing of the application but made an order (in paragraph 1) that the mother should within 14 days file and serve further particulars of her claim including the details I have mentioned and in paragraph 2 of the order that:

"The Father do file and serve within 14 days of today a revised Form E supplying all the information required and set out in the template blank form".

7. A penal notice was attached to paragraphs 1 and 2 of the order.
8. At the same time (by paragraph 5 of his order) the judge refused a further application by the father for the judge to correct various parts of an earlier 2011 judgment ([2011] EWHC 2380 (Fam)). This was a reserved judgment handed down on 14 February 2011 following the hearing of various applications by the mother to enforce an order for the payment of £220,000 made against the father by District Judge Roberts in May 2005. The application for correction of the judgment was contained in paragraph 20 of a witness statement dated 27 August 2013 made by the father in connection with the hearing on 29 August. It states:

"20. CORRECTIONS TO Green v. Adams [2011] EWHC 2380 (Fam) 14/2/2011

The Respondent requests the following corrections to this Judgment, some rather more serious than others. Refusal to correct numerous errors of record which would be libellous outside the privilege of the Court is evidence of bias and the Respondent reserves the right to ask His Honour Judge Horowitz QC to stand down from the case."

9. There then follows a schedule of corrections and the reasons why it is said that the judgment as delivered was either incorrect or misleading.
10. Judge Horowitz refused to make the corrections for reasons which I will come to a little later and the first of the father's appeals lies against his refusal to do so.
11. There was no appeal against the remaining parts of the order of 29 August but it was not complied with in that the father failed to file and serve a revised Form E1 within 14 days. There was some e-mail correspondence between Mr Holden (who has assisted the mother in the litigation) and Dr Pelling (who assists the father) about the reasons for the delay and in his e-mail of 12 September 2013 Dr Pelling wrote:

"Secondly, [the father] is intending to appeal the Disclosure, Form E1, order of Judge Horowitz QC and so obviously cannot comply with that order as to do so would render an appeal nugatory. It is intended to file the Leave to Appeal application in the Court of Appeal next week, within the 21 day time limit, and naturally the usual stay of execution will be sought."

12. On 19 September the mother issued an application to commit the father for his breach of paragraph 2 of Judge Horowitz's order.
13. On 27 September Dr Pelling sent an e-mail to Judge Horowitz in which he pointed out that the order as drawn referred to a revised Form E rather than a revised Form E1 which is the appropriate form for use in a Children Act application. Paragraph 2 of the order was, he wrote, "incapable of fulfilment because there is no pre-existing Form E to revise". He went on to say that the father had nevertheless started to prepare a revised Form E1 as he had decided that it was better to comply with disclosure than to appeal against the order. By then the 14 days specified in paragraph 2 of the order of 29 August had, of course, already expired. Judge Horowitz replied through his clerk that he was not persuaded that the order was wrong and did not propose to amend it.
14. The committal application came on for hearing before Her Honour Judge Plumstead on 23 October 2013 when the only defence raised to the allegation of breach was the point about the form of the order. Dr Pelling submitted to the judge that the order was incapable of being complied with as drawn and that the father could not therefore be in contempt of the order.
15. The judge rejected this argument and held the father to be in contempt. But, since on 3 October the father had in fact filed and served a revised Form E1, Judge Plumstead made no order other than that he should pay the mother's costs of the application in the sum of £416. This order is the subject of the father's second appeal.
16. I turn then to the first of the two appeals which concerns the refusal by Judge Horowitz to correct his 2011 judgment. The judge did not deal with the application when giving judgment on 29 August but set out his reasons for refusing it in writing when refusing permission to appeal against his order. He wrote:

"Revision of 2011 judgment: My judgment is 2½ years old and was not appealed. The Father rejects my citation of a submission by Counsel that he had made over 80 applications – which he unhelpfully calls a deliberate lie but his objections go beyond mere correction of fact and require a re-casting of the balance of my findings. I decline to even start the process on the merits alone. My judgment was directly approved by Peter Jackson J whose assessment of the overall approach of the parties was much the same as mine and who also gave leave to report: [2011] EWHC 968 (Fam) and especially paras 4, 5, 25, 33, 38, 46 and 49."

17. The judgment of Peter Jackson J ([2011] EWHC 968 (Fam)) is dated 23 March 2011. It refers to the judgment of Judge Horowitz and also contains a summary of the painful history of this litigation.
18. The jurisdiction of the Court of Appeal is statutory. Section 16 of the Senior Courts Act 1981 confers on the Court jurisdiction to "hear and determine appeals from any judgment or order of the High Court". This is given effect to by CPR 52.10 which provides in CPR 52.10(2)(a) that the court has power to:

"affirm, set aside or vary any order or judgment made or given by the lower court;"

19. Dr Pelling, who has assisted the father in the presentation of his appeal, submitted that the application made to the judge for the correction of parts of his 2011 judgment was brought under CPR 40.12 (the slip rule jurisdiction) which empowers the court to correct at any time "an accidental slip or omission in a judgment or order". A wrong refusal to exercise the power to correct obvious errors is subject to review or appeal (see Moore v Buchanan [1967] 1 WLR 1341) and Judge Horowitz, he says, was in error in refusing to accede to the application in this case.
20. For the purposes of CPR 40.12 and CPR 52.10(2)(a), a distinction, however, has to be made between the judgment or order of the court below and the reasons given for that judgment or order. In Lake v Lake [1955] P 336 a wife's attempt to appeal against a finding of adultery was rejected on the ground that there was nothing in the order against which an appeal could lie. The words "judgment or order" (in what was then s.27 of the Supreme Court of Judicature (Consolidation) Act, 1925) were held by the Court of Appeal to be limited to the "formal judgment or order which is drawn up and disposes of the proceedings and which, in appropriate cases, the successful party is entitled to enforce or execute": see Sir Raymond Evershed MR at p. 343.
21. More recently in Cie Noga D'Importation Et D'Exportation SA v Australia & New Zealand Banking Group Ltd (No 3) [2002] EWCA Civ 1142 Waller LJ said that:

"[27] Lake v Lake can at first sight be read as an authority about the importance of a "judgment" or "order" being contained in a formal document. But that I think may be by virtue of the way it was argued, and in any event is too restrictive an interpretation. A formal order was made in the then usual form in favour of the wife in matrimonial proceedings, but the Commissioner in his reasoned judgment, and by virtue of questions asked of him at the conclusion of the proceedings, had found that the wife had committed adultery. In the Court of Appeal, counsel sought to get an amendment to the formal order; that was rejected. Counsel then sought to argue that even without something in the formal order he should be allowed to appeal the finding of adultery. The appeal was rejected by the Master of the Rolls, at least as the first ground, on the basis that the formal order "records accurately the conclusion which, in the end of all, the commissioner reached" [342] and on the ground that even if successful there was nothing in the formal order that would be varied [343]. Hodson LJ's initial reasoning appears to me to be the same. It is true that in the Master of the Rolls' judgment and in Hodson LJ's judgment some reliance is placed by them on the order or judgment being the "formal order" but that is as compared (I suggest) with the "reasons for it". It is difficult to think that there simply could be no appeal without a formal order. Many appeals are brought on the basis of an order made by a judge prior to the formal document being drawn up, and In re B demonstrates that the correct reading of Lake v Lake is not that some formal document recording the order must exist. Lake v Lake properly understood means that if the decision when properly analysed and if it were to be recorded in a formal order would be one that the would be Appellant would not be seeking to challenge or vary, then there is no jurisdiction to entertain an appeal. That is in my view consistent with In re B. That this is so is not simply by virtue of interpretation of the words "judgment" or "order", but as much to do with the fact that the court only has jurisdiction to entertain "an appeal". A loser in relation to a "judgment" or "order" or "determination" has to be appealing if the court is to have any jurisdiction at all. Thus if the decision of the court on the issue it has to try (or the judgment or order of the court in relation to the issue it has to try) is one which a party does not wish to challenge in the result, it is not open to that party to challenge a finding of fact simply because it is not one he or she does not like.

[28] The decision on a preliminary issue will be a judgment or order even if it is limited to a finding of fact. There is no difficulty where the only issue to be decided at a preliminary stage is one of fact. It is that issue on which the court has been asked to pronounce a judgment and, even if the court exercises its power to give judgment against a party on the whole of the case, since that was the issue the court was asked to determine, and since it is that issue on which the whole case ultimately turns, it will be the determination of that issue which will be the relevant judgment or determination so far as jurisdiction is concerned. In Re B is a good example of a decision on preliminary issues of fact. Furthermore the case having been adjourned, and the facts making a difference as to what might flow from the adjournment, the facts in Mr Pollock's words were pregnant with legal consequences. If however in that case the court had gone on to make a decision in relation to the legal consequences which one party would not seek to challenge, in my view that party would not be entitled simply to appeal the findings because it did not like the reasons for the decision in his or her favour. It is in that context that it might be appropriate for the court at first instance to consider whether some declaration should be granted to provide a "judgment" or "order" or "determination" which could be the subject of an appeal. If for example the findings of fact might be relevant to some other proceedings, (and Mr Pollock accepted this), it might be appropriate to make a declaration so as to enable a party to challenge those findings and not find him or herself prejudiced by them. The findings would still be pregnant with legal consequences. It is to go beyond the scope of this judgment to consider precisely what circumstances might allow for the granting of a declaration where findings of fact might affect other proceedings. If an issue estoppel might arise that I suppose might provide a basis. Even in Lake v Lake it might at least through the modern eyes relating to declarations have been appropriate to grant a declaration even though issue estoppel did not apply in that context (see the judgments of the Master of the Rolls and Hodson LJ at 345 and 347). The fact that there may be circumstances shows the breadth of the discretion that the court has in relation to granting declarations, but the circumstances envisaged are not the circumstances that are suggested as allowing the court to make the form of declaration that Rix LJ did in this case."

22. This analysis has recently been followed without amendment in the decision of this Court in Re M (Children) [2013] EWCA Civ 1170.
23. It seems to me that if a judge's findings of fact are of the kind which are not to be regarded as forming part of his judgment so as to be amenable to appeal in themselves then this Court has no jurisdiction to entertain an appeal from a judge's refusal to amend such findings in accordance with the criticisms of the affected party. Findings of that kind which cannot be said to form part of the judgment within the meaning of CPR 40.12 cannot be amended at any time under the slip rule and a judge's refusal to accede to an application under CPR 40.12 is not in such circumstances open to challenge.
24. Even if the judge's findings are themselves appealable as part of the "judgment" within the meaning of the 1981 Act, the form and content of those findings is a matter for the judge to determine on his consideration of the evidence. The judge retains the power to withdraw his judgment and to amend his reasons or even his decision at any time until the order is made. But once the order is made he is functus and, apart from the power to amend the order under CPR 40.12 to correct accidental slips in the form and wording of the order, the disappointed party's only remedy is to appeal.
25. For some time now the practice of the High Court and the Court of Appeal has been to submit reserved judgments to the parties in draft for correction and then to produce an approved version of the judgment at the time of making the relevant order. This practice, which was designed in part to allow obvious factual errors to be corrected before the final public version of the judgment was produced, is sometimes used by one or other of the parties to advance further arguments designed to get the Court to alter the substance of its reasons and even the result. For the most part, this practice has been rightly deprecated: see Egan v Motor Services (Bath) Ltd [2007] EWCA Civ 1002. But, for present purposes, none of this really matters. The decision whether to amend the reasons and findings in the judgment is a matter for the court whose judgment it is.
26. In Space Airconditioning plc v Guy [2012] EWCA Civ 1664 a refusal by the trial judge to correct what she herself admitted was an error in her judgment led to a successful appeal and the ordering of a new trial on the ground that the error amounted to a "serious procedural error or other irregularity" in the trial under CPR 52.11(3). Mummery LJ said that:

"[53] I start from the elementary proposition that, if a judgment contains what the judge acknowledges is an error when it is pointed out, the judgment should be corrected, unless there is some very good reason for not doing so. A judgment should be an accurate record of the judge's findings and of the reasons for the decision. It should not normally be necessary for a party to bring an appeal to correct an error, if it turns out that the parties and the judge agree that there is an error and that a correction should be made. This applies to a handed down judgment before the order is entered, though the occasion for correction will be rarer if the parties' representatives have been given a prior opportunity to suggest corrections of typing mistakes and obvious errors in the writing of the judgment. Before the correction is made the judge should obviously give both sides an opportunity to make submissions on whether there is a valid objection to a proposed amendment of the judgment."

27. In that case the judge did not hand down her judgment for correction in the usual way and, when the error was pointed out before the order was made, she refused to correct it. The decision casts no doubt, however, on the principle that the decision whether to correct is one for the judge and that once the order is made the only remedy is an appeal unless the slip can be described as accidental.
28. In the present case the relevant order was made as long ago as 2011. There has been no appeal against that order or against the judgment nor, so far as I am aware, was there any request to the judge to make the corrections now sought prior to making of the order, although Dr Pelling made a submission that the father was not given any proper opportunity to do so. In these circumstances, Judge Horowitz was fully entitled in my view to refuse even to consider amendments to his reasons and his refusal to do so cannot in itself be the subject of an appeal to this Court. All the proposed corrections are to findings of fact or to facets of the judge's reasons. None of them seems to me to come within the category of factual findings which can be regarded as part of the "judgment" for the purposes of CPR 40.12. We have no power to order a judge to alter his own judgment. If the findings of fact impacted on the order which Judge Horowitz made in 2011 then the father's remedy was to seek to appeal against the order. This he did not do and it would be far too late now for him to seek to do so. I would therefore grant permission to appeal but dismiss the first appeal.
29. The second appeal raises a short point about the terms of paragraph 2 of the order of 29 August 2013. It is common ground that the order as drawn was incorrect in that it should have referred to a revised Form E1 rather than a revised Form E. The father contends that he should not be held to be in contempt for failing to produce a revised version of the wrong type of form. But Judge Plumstead held that the order was capable of being complied with because all parties understood that the appropriate form which the father was required to complete was Form E1. This is not only evident from the e-mail exchange I referred to earlier but also from the fact that before the committal hearing the father did file a revised Form E1 without there being any prior variation of the order. There can in my view be no doubt that he knew and understood what Judge Horowitz had intended him to do.
30. The only issue therefore in the second appeal is whether paragraph 2 of the order is to be interpreted as referring to a Form E1 even though in terms it specifies Form E. If not then the judge was wrong to hold that the father was in contempt by reason of his failure to file a revised Form E1. The father in his submissions says that he was entitled to interpret the order as drawn and that when Judge Horowitz declined to amend the order on 27 September he then assumed that the judge had intended him to file a revised Form E rather than a revised Form E1.
31. By then, however, the time for complying with paragraph 2 of the order had expired and the real question is what someone in the position of the father would reasonably have understood the order to mean at the time when it was made. The fact that Dr Pelling in his e-mail exchange with Mr Holden on 12 September thought that the father had been ordered to file a revised Form E1 is not surprising. Recital (2) in the order states that:

"The Father's Form E omitted any particulars of his income, income needs (including benefits received or receivable) earning capacity or expenditure but also noted that he set out bank deposits of c £40,000 and claimed to be entitled to withhold full disclosure on the basis (a) Article 8 of the European Convention on Human Rights and (b) that his assertion that he would negotiate and/or meet any reasonable capital award."

32. Although the recital refers to the existing "Form E", that is obviously and can only be a reference to the Form E1 which Peter Jackson J had ordered him to prepare and serve for the purposes of the hearing. The same point can be made in relation to the references to "Form E" in paragraphs 5, 11 and 29 of Judge Horowitz's judgment which are all of a piece. Both in his judgment and in the order "Form E" has been used to and can only refer to a Form E1. The reality is that the father went into the hearing on 29 August expecting to contest the mother's application for a lump sum and periodical payments on the basis of the Forms E1 which Peter Jackson J had ordered to be exchanged by 9 August 2013 and which had been prepared on both sides. It was only Judge Horowitz's decision that further detail was required that caused the hearing to be adjourned and it was obvious in this context that his order for a revised Form E was a reference to a revised Form E1. It is absurd to suggest that the judge's order was or could have been interpreted in any other way. As Lord Sumption said recently in Sans Souci Ltd v VRL Services Ltd [2012] UKPC6:

"the construction of a judicial order, like that of any other legal instrument, is a single coherent process. It depends on what the language of the order would convey, in the circumstances in which the court made it, so far as these circumstances were before the court and patent to the parties. The reasons for making the order which are given by the court in its judgment are an overt and authoritative statement of the circumstances which it regarded as relevant. They are therefore always admissible to construe the order. In particular, the interpretation of an order may be critically affected by knowing what the court considered to be the issue which its order was supposed to resolve."

The fact that Judge Horowitz declined when asked on 27 September to amend his order so that it referred to a revised Form E1 does not alter this conclusion.

33. I would therefore also dismiss the second appeal.

Lord Justice Underhill :

34. I agree that both appeals should be dismissed. I have nothing to add to what Patten LJ has said about the second appeal. As regards the first appeal, I would only wish to add this. Dr Pelling conveyed to us what he said was the father's dismay that there should be, if the law were as My Lord has said, no mechanism by which a party can challenge patent, and perhaps damaging, errors of fact contained in a judgment unless the alleged error gave rise to a ground for challenging the actual decision of the Court. I do not think that the situation is quite so stark. A party will routinely have the opportunity to draw to the attention of the Court any factual errors in a judgment before it is finalised. As My Lord has noted, that is positively invited where the judgment is pre-circulated in draft in accordance with the modern practice where judgment has been reserved; but there is an equivalent opportunity in the case of a judgment delivered orally, since parties or their advocates at the conclusion of the judgment are entitled, whether expressly invited to or not, to point out any mistakes which can be corrected if a transcript is produced. Parties and advocates should always read – or, as the case may be, listen to – a judgment with care so as to be able to take advantage of this important safeguard (though it should also be emphasised that the opportunity to propose corrections of this kind is not an opportunity to challenge findings on which the judge has made a deliberate decision). It appears from Hazeltine Corporation v International Computers Ltd [1980] FSR 521, to which Dr Pelling has helpfully referred us, that even after the judgment is finalised a judge may have the power to correct obvious errors (though it does not follow that a refusal to use that power is appealable – see Secretary of State for Trade and Industry v Rogers [1996] 1 WLR 1569). So I do not accept that a party is without a remedy in the kind of case suggested, even if a judge's decision on whether to make such corrections cannot be challenged in this Court.
35. In the present case Dr Pelling tells us that the father had no opportunity to suggest corrections before the judgment was finalised because the Judge promulgated it, in what was described as a final version, without circulating a draft first. He did, however, when some months later, as a result of an order of Peter Jackson J, Judge Horowitz's judgment was put into the public domain, make written submissions to both judges seeking some corrections. Peter Jackson J consulted Judge Horowitz and communicated a decision that "the minor alterations now suggested … do not warrant further amendment". Thus even if, which I am far from convinced is the case, any corrections were warranted, the father had the opportunity to persuade the Judge that that was so, over a year before the application which gives rise to this appeal; he was not so persuaded, and I see no injustice in the matter resting there.

Lady Justice Black :

36. I agree that both appeals should be dismissed.
37. I do not wish to say anything more about the second appeal.
38. In relation to the first appeal, I am in agreement with Patten LJ's judgment and I do not wish to detract from anything he says in it in relation to that appeal. I add these few words only because the argument as originally presented to us proceeded, I think, upon the basis of what is perhaps an understandable confusion between two uses of the word "judgment" in an area of law and procedure which it is not easy for non-lawyers to understand. I offer the following very short explanation in what I hope will be found to be non-technical language but I stress that it is not intended to alter established legal principles.
39. To many people, the word "judgment" signifies the oral or written judgment given at the end of proceedings in which the judge explains in a narrative form what he has decided and why. What I am now saying is a judgment in this sense. In contrast, the word is used in a different sense in, for example, CPR 40.12 and CPR 52.10(2)(a) which refer to "a judgment or order" meaning, to use lay language, the end product of the proceedings. The end product of this appeal is that the appeal is dismissed and that is what will be encapsulated in a formal order in due course. The end product of Judge Horowitz's 2011 hearing was the financial orders that he then made.
40. The correction that the father wished Judge Horowitz to make to his judgment was not "an accidental slip or omission in a judgment or order" within the slip rule contained in CPR 40.12. It was not a correction of the judge's order or of the "judgment" in the sense in which that word is used in CPR 40.12. The father was seeking a correction (in his eyes) of the contents of Judge Horowitz's judgment in the other sense.
41. The slip rule not being available, and the judge having concluded his function in relation to the February 2011 decision, as Patten LJ says in §22 of his judgment, the only possible route of challenge to what the judge said was by way of an appeal against the "order or judgment made or given" by him (CPR 52.10(a)). Here again "judgment" has a restricted meaning as Patten LJ has explained and I am doubtful that it includes the aspects of Judge Horowitz's judgment that the father sought to challenge. However, even if it did, it is a very great deal too late for an appeal to be launched now. It follows that there is no role for this court. That is why the first appeal must be dismissed.