Bench Memorandum use and use/abuse by Judiciray

HM Courts and Tribunals Service did not have the information requested.

Dear Her Majesty’s Courts and the Tribunals Service,

Following the case/hearing Davies [appellant] v [names removed] Davies [2005] EWCA Civ 216 [ancillary relief – permission to appeal “PTA”] the appellant’s bundle returned by LJ Potter/court contained an added [by the court] bench memorandum for children’s act proceedings between the same parties [and the same county/circuit judge].

A copy had not been provided to the appellant/applicant either in the earlier 2004 children’s case [where LJ Potter did not adjudicate] or the PTA proceedings that were before him.

The Bench Memorandum was almost word for word the same [minus * see below] as the judgement that was read out, and dismissing the PTA in the children’s proceedings. This indicated that the outcome/hearing was pre-determined/scripted and the judge did not pay attention to oral argument. The judgement, which the judge simply read out from the bench memorandum, reflected the recommendation and opinion of the writer, a trainee solicitor/law graduate and dated 13th for a hearing date on 26th.

[* minus some ad hoc or ad lib comments and tab references in the bundle where the judge was referred to and which he then read the text referred to in the Tab into the judgement]

Please provide

1. A copy of the policy or guidance for providing, or appeal staff obtaining, for the judge sitting the bench memorandum and any other details of other and previous Court of Appeal proceedings between the parties [behind the back of litigants/parties] when determining PTA applications in the Court of Appeal.

2. Any information on why Court of Appeal judiciary are provided with [secret] documents from proceedings, where those documents have never been published or disclosed to the parties and which may have an adverse or otherwise influence on the judge.

Please provide any information in electronic format.
Thanks.

Yours faithfully,

Gwynne Davies

London RSU Kilo,

1 Attachment

Dear Ms Davies,
 
Please find attached an acknowledgement of your freedom of information
request.
 

Kind regards,
Knowledge and Information Liaison Officer

HM Courts & Tribunals Service | London RSU | 3rd Floor | First Avenue
House | 42-49 High Holborn | London | WC1V 6NP

 

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London RSU Kilo,

1 Attachment

Dear Ms Davies,
 
Please find attached a response to your freedom of information request.
 

Kind regards,
Knowledge and Information Liaison Officer

HM Courts & Tribunals Service | London RSU | 3rd Floor | First Avenue
House | 42-49 High Holborn | London | WC1V 6NP

 

 

This e-mail (and any attachment) is intended only for the attention of
the addressee(s). Its unauthorised use, disclosure, storage or copying
is not permitted. If you are not the intended recipient, please destroy
all
copies and inform the sender by return e-mail.

Internet e-mail is not a secure medium. Any reply to this message
could be intercepted and read by someone else. Please bear that in
mind when deciding whether to send material in response to this message
by e-mail.

This e-mail (whether you are the sender or the recipient) may be
monitored, recorded and retained by the Ministry of Justice. E-mail
monitoring / blocking software may be used, and e-mail content may be
read at any time. You have a responsibility to ensure laws are not
broken when composing or forwarding e-mails and their contents.

WhatDoTheyKnow left an annotation ()

We have removed some names from the version of this request we are publishing on the basis we were concerned they may inappropriately identify a child.

Gwynne Davies left an annotation ()

The annotation removing names requires correction as it is misleading;

1. The correct case title/citation is Davies v Davies [2005] EWCA 216 [the judgement should be publicly available - either freely or behind a paywall]. The Court of Appeal is an open court with no reporting restrictions.

2. There is no anonymity in ancillary relief proceedings [although children's names are routinely excluded/anonymised]. S.97 of the Children's Act 1989 does not apply.

3. It is a widely held but wrong view of many jurists that ancillary relief cases are private and subject to reporting restrictions/anonymity - See Gallagher v Gallagher [2022] EWFC 52 for most recent guidance correcting that view. Financial information submitted under compulsion is private however. [Davies v Welch]

4. The case does have a significant public interest due to a judge publicly stating an act of parliament is rarely enforced in the UK Family Courts – “Perjury proceedings, however, are rarely instituted or followed”.

5. Further a read-out Bench Memorandum constitutes a full judgement of the Court of Appeal. Strange how a request for a transcript of the hearing was refused subsequently when it was raised with the judge [Scott Baker] that there were serious errors and omissions.