Fresh Dates! (But when?) Setting the record straight
Dates can be critical, particularly when legal rights and obligations depend on them. It is a matter of concern if they appear to shift, as Paul Magrath explains. … Continue reading
Dates are important, in the law. They help mark the time when, from when, or until when certain legal obligations take effect. When a law is laid down, or a decision is made, it takes effect from a given date. Something that happened before that date is not affected by the law or the decision; something that happened after it, is. You can’t just move the date, like a piece of fruit on a plate. Dates, you see, have consequences.
My concern about dates has been prompted by two recent developments. In the first, a practice direction (a very junior kind of legislation) has been – or appears to have been – “updated”, when in fact it is exactly the same as it always was. In the second, a judgment has been published with one date and then reissued with a different one.
Neither of these things is of earth-shattering importance, it has to be said. And perhaps now, in the midst of a global pandemic that has thrown many of our usual procedures out of whack, may not be the best time to be worrying about it. De minimis non curat lex, it used to be said. But these are dates, not trifles…
Practice unchanged – or not?
And the practice direction is about contempt of court. It is, or should be, applied whenever a court considers an application to commit a person accused of contempt (the alleged contemnor) to prison or to subject them to some other punishment, by reason of their perhaps flagrant breach of a court order or misconduct during court proceedings. These are not matters to be taken lightly. It is important that, when reference is made to the practice direction, it should be correctly identified as the source of the rules which apply to the process.
These rules insist, among other things, that hearings of such applications be conducted in public, in open court; that they be properly advertised as such; and that the alleged contemnor be named in the order. Courts can depart from the rules but only in specified circumstances. Their decisions must be published. All of this is laid down in Practice Direction on Committal for Contempt of Court in Open Court dated 26 Mar 2015 and signed by the then Lord Chief Justice, Lord Thomas of Cwmgiedd. The practice direction has been reported at  1 WLR 2195, but the original was published on the Judiciary website in the form of a PDF.
The Judiciary website has now republished it on the same page (the link is the same) but with a new piece of introductory text, saying “Updated: Practice Direction on Committal for Contempt of Court in Open Court” and re-dated 20 August 2020. The content of the practice direction itself is exactly the same, word for word. But the introductory text on the holding (announcement) page has changed. (The original version can be found and compared using the Wayback Machine.) Whereas previously it announced that the practice direction applied “to all proceedings for contempt of court” and “supplements the provisions relating to contempt of court in the Civil Procedure Rules 1998”, the new version says it applies to all proceedings for contempt of court “except in relation to proceedings for contempt of court to which Part 81 of the Civil Procedure Rules 1998”.
Supplementing something is definitely not the same as applying to everything except that something. This seems quite a substantive change in the scope of application of the practice direction. Was that intended? If so, by whom was it intended? Any change to the substance of the practice direction would have to be made by with the authority of the present (different) Lord Chief Justice, Lord Burnett of Maldon. But if it isn’t a substantive change, but merely a clarification, that too should have been made clear.
In either case, but certainly in the case of any substantive change, it would have been better to have issued an amending or supplementary direction, with the new date, indicating that the change took effect from 20 August 2020, and by whose authority it was made.
Subsequent researches have revealed that a change has in fact been made to the Civil Procedure Rules, including a revised version of Part 81, but these changes are not coming into force until 1 October 2020. An announcement on the Civil Procedure Rules page of the separate Justice.gov website states:
“Following a public consultation, extensive revisions have been undertaken to condense the previous rules and to set out a uniform procedure. The new Part 81 reduces the number of rules from 38 to 10 and dispenses with two PDs (one from the Lord Chief Justice) and a Practice Guidance (PG) document (from the Lord Chief Justice). Please keep abreast via the Family Procedure Rules web pages of the parallel changes anticipated to be made to the FPR.”
This all looks quite important, and looks likely to have the effect of amending, repealing or superseding the 2015 Practice Direction. In which case, why didn’t they say so when updating the practice direction announcement page? Why didn’t they provide a link?
Thus what appeared initially as a matter of a dodgy date (something generally to be avoided – there was a scene in an Indiana Jones film, I seem to recall, involving such a thing) has turned out to be a much more significant matter.
When judgment is given
Melanie Newman is a dedicated and conscientious journalist. She decided to investigate a public law care case in the family court in which, it appeared, serious errors had been made. (You can read her account of the case in a blog post here: The Family Courts Must Show Their Workings.) She wanted to find out more about the background to the case and therefore applied for a disclosure order to enable her to see the court file and other materials relating to the proceedings after they had concluded.
The judge, Mrs Justice Roberts, gave two judgments. In the first, Newman v Southampton City Council & Ors  EWHC 2103 (Fam);  4 WLR 108, she declined to grant the disclosure order as sought by Newman, though she did grant access to some of the documents, suitably redacted. In the second, Newman v Southampton City Council & Ors (Costs and PTA)  EWHC 2148 (Fam), she considered the questions of costs and permission to appeal.
Both judgments have now been published on BAILII and one of them has been reported in the Weekly Law Reports. But there are some puzzles over the dates of hearing and when, exactly, those judgments were officially given.
In the first judgment, the judge refers to another case in which “The Court of Appeal’s judgment is reported at  EWCA Civ 283 and was handed down on 28 February 2020 after I had reserved judgment in this case”. That suggests the Newman case was heard before 28 February, but the hearing dates given on the cover page of the judgment are 2 and 3 March 2020.
That cover page also says “Judgment released to counsel on 31 May 2020”, but gives 5 August 2020 as the actual date of judgment. That would normally be the date when the judgment was physically handed down or read out in court. Thanks to Covid-19, that isn’t happening now, and judgments are merely circulated to interested parties, including court reporters, and legal publishers such as BAILII (which is generally regarded as the official judgment platform) and ICLR (who are official publishers of the Law Reports). But normally when this happens, there is a notice on the front of the judgment saying, such as this one taken from another case:
“COVID-19: This judgment was handed down remotely by circulation to the parties’ representatives by email. It will also be released for publication on BAILII and other websites. The date and time for hand-down is deemed to be 2pm on Thursday 30 July 2020.”
However, no such notice appears on either of the judgments in this case.
The second judgment is also marked with hearing dates of 2 and 3 March, and as having been “released to counsel on 31 May 2020”, and also gives 5 August 2020 as the actual date of judgment. However, the first line of the judgment reads:
“Having handed down my substantive judgment in this matter last week, I am now asked to rule on two remaining issues …”
That suggests that the first judgment must have been handed down (albeit in a deemed sort of way) at least a few days before the second. And indeed, when they were both initially released to BAILII, the first judgment had, on its cover, the date of 31 July 2020 as the date of judgment. That was changed in response to a query from the ICLR law reporter, the judge’s clerk confirming that both judgments should be dated 5 August. However, an article on the chambers website of one of the barristers appearing for Newman begins “On 31 July the High Court handed down judgment in the case…” (see Kate Temple-Mabe acts for journalist seeking unprecedented access to papers in care proceedings, 7BR Chambers) and counsel has confirmed that that was indeed the date of official hand down.
As a result of the change, the law report has had to be updated, as has the version of the judgment on BAILII. Again, no indication is given that the judgment has been updated, as often happens in other cases. For example, in Frank Schrijver UK Ltd v Smart Dry Intl Ltd  EWHC 2092 (Ch) the date of judgment has been changed from 30 July to 4 September 2020, following an addendum. A notice on the front of the judgment explains:
“Covid-19 Protocol: This judgment was handed down remotely by circulation to the parties or their representatives by email and release to BAILII. The date and time for hand-down is deemed to be 4.00 pm on 30 July 2020.
This revised judgment (with Addendum) was handed down remotely by circulation to the parties or their representatives by email and release to BAILII. The date and time for hand-down is deemed to be 2.00 pm on 4 September 2020.”
Newman wants to appeal against Roberts J’s decision, but needs permission to do so from the Court of Appeal, the judge having refused it. She will also need to be sure, as a freelance journalist without the resources of a media conglomerate behind her, that her appeal will not expose her to the risk of a massive bill of costs in the event that she is not successful. Her legal team are very nobly acting pro bono but the local authority may demand their costs. So if she is granted permission to appeal she will also seek a costs capping order.
If and when the appeal is heard, one of the key documents referred to by the Court of Appeal will be the main judgment below. That is what is being appealed against. The date of that document is critical for a number of reasons. For a start, there is the court record. The dates of judgments and orders need to be accurately set down. Moreover, certain rights and duties depend on the date of the decision, such as the time limit within which an application for permission to appeal must be made (normally 21 days). If the date of judgment or order appealed against is unclear, when does that time start to run?
For the purposes of citation, too, the date is important. If the case has been officially published or reported, the neutral citation or publisher’s reference will enable it to be cited accurately. But if it has not been published, an unreported case is often identified by a combination of title, date and court (or judge’s name). These three pieces of information enable a judgment to be identified with reasonable accuracy, for example as the source of a judicial comment or even as a precedent (though it would be rare for such a case not to be reported somewhere).
So for all these reasons, dates matter. And for a law reporter, obsessed with accuracy, it is things like this that keep us awake at night.
Unless perhaps it was something we ate.