When Can a Judge Change Their Mind? - Thomas Crockett, 1 Chancery Lane

25/03/13. In re L and Anor (Children) (Preliminary Finding: Power to Reverse)[2013] UKSC 8 the Supreme Court considered the circumstances where a judge was entitled to depart from such a preliminary judgment or ruling. Whilst the underlying facts of this case being appealed related family proceedings, however Supreme Court’s ruling is very likely to be considered of much broader application.

At first instance, Her Honour Judge Penna sitting at Manchester County departed from her first ‘preliminary outline judgment’ in a fact-finding hearing in an interim care order case concerning which (if either) parent was responsible for injuries to their children. The Court of Appeal (Thorpe LJ, Sir Stephen Sedly and Rimer LJ dissenting) quashed the Judge’s second or ‘perfected’ judgment and permission was granted for the case to be heard by the Supreme Court.

Lady Hale (with whom the other Justices agreed) provided the leading opinion in which she did change her mind, but rather the interpretation of the law as to this issue.

She considered that it had long been the prerogative of a judge to reverse his or her decision at any time before his or her order had been drawn up and perfected (i.e. under CPR 40.2(2)(b) by being sealed by the court). The suggestion that this should only occur in very exceptional circumstances was rejected, the cases of In re Barrell Enterprises [1973] 1 WLR 19 as affirmed by the majority Court of Appeal in Steward v Engle [2000] 1 WLR 2268 were overruled and Lord Justice Clarke’s dissenting judgment in the latter case followed.

Lady Hale agreed with Lord Justice Clarke in that each case had to be considered in conjunction with the overriding objective to deal with cases justly, and the court should not be bound to have to look for ‘exceptional circumstances’. Her opinion considered such factors as whether a party had acted on any aspect of the preliminary judgment to his or her detriment. This was held to be especially relevant in cases where such action prior to an order being sealed would be foreseeable.

The judgment of Neuberger J (as he then was) in In re Blenheim Leisure (Restaurants) Ltd (No 3) (The Times November 9, 1999) was cited with approval in providing examples of circumstances where it was just for a judge to revisit his or her earlier decision. These include circumstances where there had been a plain mistake by the court; a failure by a party or parties to bring relevant facts or issues to the court’s attention; or the discovery of new relevant facts after judgment had been given.

Thomas Crockett

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