Bath v Escott [2017] EWHC 1101 (Ch)

The defendant applied for the release of an audio recording of a judgment that had been given in August 2014, on the basis that it was not true to what had been said in court. However, no details of the discrepancies were referred to in the defendant’s application and it was not made clear whether it concerned a few words, or if whole paragraphs had been added, moved or deleted or if the judgment had been completely different from beginning to end.

Findings

The High Court held that it is not wrong in law for judges to amend transcripts of judgments to better explain the reasons behind their decisions. HHJ Matthews stated that it is entirely lawful and proper practice for a judge to alter a transcript, not only to correct garbled or incorrect transcriptions, spelling and grammatical mistakes or matters of style, but also to record accurately why the judge made the decision that they had.

It was also concluded that a judge who gives reasons for a decision, may alter those reasons or even the decision itself after having made them known to the parties. Also it was made clear that if there are two reports available of a decision, where one contains the revised judgment and the other a transcript that had been taken down by a shorthand writer, without revision by the judge, then the revised version will be more authoritative.

Further, the High Court held that it is an established principle that even after giving or handing down a judgment, a judge is entitled to amend it and even to, if necessary, change the decision before the order is sealed.

The High Court referred to the Supreme Court case of Re L and B (Children) [2013] UKSC 8, where it was held that a judge had the power to reverse their decision at any time before an order is drawn up and sealed. It was stated that this was not limited to exceptional circumstances and was in accordance with the overriding objective to deal with cases justly.

It was held that it does not matter if the approved transcript adds to or differs from the actual words used by the judge at the time when judgment was given. Specifically, it was stated that what matters is only that the judgment “…has been considered, revised if necessary, and then approved by the judge.” As a result, the defendant’s application was dismissed with the court stating that “…there is no duty on the judge to approve a transcript limited to the exact terms of the words spoken on the day”.

What this means for you

This case highlights that even after the handing down of a judgment a judge is entitled to amend it and even change the decision itself before the order is sealed. However, there would be strong evidence and reasons needed for a judge to completely alter their decision in the transcript from what was noted at trial.

Interestingly, the High Court stated that if there was sufficient evidence showing that a revised and approved transcript is false, added a new point or did not accurately reflect the reasons for the decision then there would be more grounds for challenging it.

As a result of this judgment, it will be extremely difficult for the parties to argue that a transcript does not accurately set out the judgment which the judge actually delivered on the day. In the majority of cases, revised transcripts will address typographical errors or state more clearly the reasons behind a decision, if further clarification is needed, in addition to what was already held at trial.

It will be rare for a revised transcript to change the reasoning behind the decision and it will be even rarer for a decision to change or for new points to be raised that were not considered during the hearing. As a result, there will be limited circumstances where the content of a revised transcript will be challenged for being inaccurate. However, it should be remembered that judges have a wide ranging discretion and can change their decision and alter a judgment before the final order is sealed if reasons are given in respect of why this has been done. Although it should be noted that the judge would have to provide strong evidence in respect of why a decision or reasoning behind a decision has changed from the time since the time when the oral judgment was given.