If a Judge gives an ex tempore (oral) judgment, as opposed to a reserved judgment, the Judge gets the opportunity to “approve” the transcript before it goes to the parties if it is requested for an appeal. Whilst most Judges make no changes, or maybe small changes to correct typos and grammatical errors, some Judges use this as an opportunity to re-write the Judgment. According to Lord Neuberger, President of the Supreme Court, this type of re-writing is common and something that he has done in the past.
Speaking at the Annual Conference of the Supreme Court of New South Wales, Sydney on 1 August 2014 Lord Neuberger said (paragraph 23 of the speech) in his lecture Sausages and the Judicial Process: the Limits of Transparency:
“I have rewritten sentences, even paragraphs. I have transposed paragraphs or even whole sections. I have even deleted sentences or paragraphs – sometimes because I simply could not understand what I had been trying to say. Once I added a paragraph because a brilliant new reason had occurred to me justifying my decision. In due course my decision was overturned and the Court of Appeal said that the new point was a particularly bad one – showing that cheats do not prosper. If I was going to add a point, I should have made it clear that it was a piece of esprit de l’escalier.”
Significant changes to a judgment in an approved transcript could affect a party’s chances of appeal. For example, a party makes a decision whether to appeal or not on the basis of what the Judge said in his ex tempore judgment. If a party wishes to appeal, permission has to be requested from the Judge at the time the judgment is given, and/or by way of appellant’s notice within 21 days. The approved transcript or note of the ex tempore judgment is not usually available by this stage. The best record of the judgment is usually Counsel’s note, scribbled down at court. If, when the approved transcript is received the Judge has revisited his judgment and now provides those reasons which were lacking or re-written his reasons to make them better, or deleted bad reasons, the appellant’s basis for appeal could be stolen away from him. However, by that time, the appellant will have incurred the costs of preparing the appellant’s notice and skeleton argument.
The lesson is to read approved transcripts of judgments carefully. If it does not accord with Counsel’s note, this might not be Counsel’s fault. As Lord Neuberger indicates, the Judge himself may have got the red pen out and used the opportunity to make sure it is appeal proof.