Adducing fresh evidence part 4
Over the past few weeks we have been looking at the Ladd v. Marshall tests. This week we consider how those tests are used not on appeal but in those circumstances where a judge reviews his or her decision.
The first point to note is that if the judge decides to admit fresh evidence the Ladd v. Marshall tests are to be applied flexibly. They are therefore relevant but do not have to be viewed quite as strictly as they would be on appeal (although of course even then those tests are a guide and subject to the overriding objective of dealing with cases fairly).
It might at first stage seem surprising that a judge is able to receive fresh evidence or other material and effectively "change" the decision. However this can only happen in extremely limited circumstances.There is a difference between the judge giving a judgment or order by delivering the judgment and the moment when the order is sealed or otherwise perfected. Once the court order is drawn up and finalised then the judge has reached his or her decision and it is then a question of appeal. However before that order is finalised even if the judge has delivered a judgment in open court it is not too late to hear fresh evidence or alter that judgment. Nonetheless once judgment has been given the jurisdiction to reopen it is to be sparingly exercised and only available where there are exceptional circumstances or strong reasons for doing so . This is because the principles of finality and the doing of justice require justice to all parties in the litigation, and if judgements are reopened in any other than exceptional cases it would undermine certainty and reduce confidence in the judicial process.
Even before judgements are delivered in open court they are usually sent confidentially to the parties so that corrections or errors can be pointed out. This should not normally lead to any sort of attempt to re-argue the case. However sometimes there may be a point which can be legitimately taken about the judgment. In a case called Robinson v Bird, Times Law Reports 20th January 2004 page 2 Mr Justice Blackburne in the Chancery Division had provided a draft judgment in an Inheritance case. The judgment favoured one side, but the other side wrote to the judge pointing out that the judge's reasoning had not expressly applied the two-stage test under the Inheritance (Provision for Family and Dependants) Act 1975. In consequence the judge heard further submissions and produced a revised judgment which reached a different conclusion favourable to the defendant. The Court of Appeal dismissed the appeal against the judge changing his mind.
The Court of Appeal pointed out that a draft judgment given to the parties for typographical correction differed from a judgment which had been handed down in court. However since the parties needed to know that the procedure of giving draft judgment was not a further chance for additional submissions, "exceptional circumstances" would still be needed to justify a change. Nonetheless if a judge decided that his draft was wrong then he was positively obliged to alter it, however unfortunate the consequences of this might seem. The Court of Appeal stressed that it could not be right for the law to require a judge to hand down a judgment which he believed to be wrong.
Thus it will be in very rare cases that a judge will reconsider the judgment. If this is done, the Ladd v. Marshall tests will still apply but will be applied flexibly