When a judge changes their mind

Divorce|April 16th 2019

One can imagine that it must be very difficult for a party who believes they have succeeded with their case to find that success snatched away from them at the last moment. However, sometimes judges change their mind about decisions they have to make.

As its name suggests, this is what happened in the High Court case H v T (Judicial Change of Mind), which concerned an appeal by a husband against a financial remedies order. The final hearing in the case took place in May last year, but the judgment has only recently been published on the Bailii website.

For the purpose of this post I don’t need to go into too much detail regarding the facts of the case, or the financial remedies order. The parties were married for sixteen years, and have three children. Divorce proceedings took place in 2016, and the wife made a financial remedies application. That application was heard by His Honour Judge O’Dwyer, who awarded the wife some 68% of the capital assets.

The husband appealed. The appeal was heard by Mr Justice MacDonald in the High Court. He explained the ground of appeal, which was that:

“The learned Judge was wrong when he failed to make adequate capital provision for the husband when he awarded the wife at least 68% of the capital assets in circumstances where (1) the wife could re-house at a level the learned Judge found was appropriate without making any, or any significant, departure from equality; and/or (2) the husband was also ordered to pay considerable child maintenance and school fees.”

After hearing the appeal Mr Justice MacDonald circulated a draft judgment to the parties’ lawyers, which indicated that he intended to allow the appeal to the extent of varying the lump sum order made by Judge O’Dwyer, as he considered that Judge O’Dwyer’s award had exceeded the wife’s identified housing need.

It is important to explain here that a judge’s decision in a case is not final until their judgment is handed down. Sending out a draft judgment is not the same as handing it down. The purpose of sending out a draft is to give the lawyers the opportunity to check the judgment, and suggest any corrections or amendments. Normally, the suggestions will relate to relatively minor issues, such as typographical errors, rather than the decision itself. The judge will then consider those suggestions, and make any appropriate corrections or amendments to the draft, before handing down the judgment.

In this case the wife’s counsel, upon receiving the draft, invited Mr Justice MacDonald to reconsider the conclusions expressed in his draft judgment, given “what she contended was a significant material omission in the figures that underpinned those conclusions.” Specifically, he had failed to take into account purchase costs when looking at the wife’s housing need. Whilst not mentioning them specifically, Judge O’Dwyer had taken purchase costs into account, as the wife’s counsel explained, and thus his award provided for the wife’s identified housing need exactly.

This was accepted by Mr Justice MacDonald, who therefore changed his mind, and decided to dismiss the husband’s appeal. He had this to say about the change of mind:

“Whilst I had not formally handed down judgment, and, accordingly, … there was nothing to prevent this change of mind following careful reconsideration … I am conscious that judicial tergiversation [i.e. change of mind] is, rightly, not encouraged. Not least in this case because the husband will have considered himself successful by reference to the draft, only for the court to reach the opposite conclusion in the judgment handed down. Against this however, … a judge must have the courage and intellectual honesty to admit and correct an error or omission and, … in doing so is honouring his or her judicial oath. In the circumstances, whilst, as I can attest, it is an uncomfortable exercise for the judge, particularly where the error or omission acts to change the decision handed down in draft, and is disappointing for the litigant who believed they had been successful, a judge is duty bound to correct his or her omission or error. To do otherwise would not be just.”

I’m sure that the husband would have found the change of mind hard to accept, but obviously, judges can make mistakes just like anyone else, and those mistakes, once brought to light, must be corrected. Normally this will entail correction on appeal, but if the mistake is brought to light before a decision is handed down, then that decision must itself be changed.

You can read the full report of the case here.

John Bolch often wonders how he ever became a family lawyer. He no longer practises, but has instead earned a reputation as one of the UK's best-known family law bloggers.

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