This may arise through construction of the statutory provisions as a matter of implied intention. Alternatively it may be held to exist by operation of the common law as a matter of fairness.6[1999] 1 WLR 1293 at 1297.

The duty [to give reasons] is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties – especially the losing party – should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know … whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.8[2000] 1 WLR 377 at 381. And, on the value to the decision-maker or tribunal, R v Higher Education Funding Council ex p Institute of Dental Surgery [1994] 1 WLR 242 at 256.

While a constant refrain is that reasons must be given in order to render practicable the exercise of rights of appeal, a number of other justifications have been advanced for the requirement to give reasons. These include the requirement that justice must not only be done but be seen to be done. Reasons are required if decisions are to be acceptable to the parties and to members of the public … [T]he requirement to give reasons concentrates the mind of the judge and it has even been contended that the requirement to give reasons serves a vital function in constraining the judiciary’s exercise of power … The function that judgments play under the common law in setting precedents for the future has also been identified as one of the justifications for the requirement to give reasons …

We would put the matter at its simplest by saying that justice will not be done if it is not apparent to the parties why one has won and the other has lost.10See also: Tramountana Armadora SA v Atlantic Shipping Co SA [1978] 2 All ER 870 at 872; R (O’Brien) v Independent Assessor (2003) Times 5 May. The Employment Appeal Tribunal has emphasised that giving reasons helps to focus the decision-maker’s attention on the factors that are relevant to decision: Sogbetun v Hackney London Borough Council [1998] ICR 1264 at 1270.

The skeleton argument … is devoted to a single issue: whether the Lincoln employment tribunal has departed from the universal obligation of judicial tribunals to give reasons which are candid, intelligible, transparent and coherent … For my part I accept that these are qualities which litigants and the public are entitled to expect in all reasoned judgments.

Candour, a subjective quality, is what Crewe CJ was describing when he spoke in the Earl of Oxford’s Case (1626) Collins 190 of the covenant he had made with himself ‘not to let affection press upon judgment’. It is echoed in the judicial oath to do justice without affection or ill-will. Intelligibility and coherence, which are objective and therefore justiciable qualities, may be achieved in a variety of ways. Transparency, a devalued word but one which is central to this appeal, means here that properly drawn reasons should make it possible for the reader to find sources, especially but not only sources of law, which are referred to but not recited.

The rule is the same [in all cases]: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword.17[2000] 1 WLR 377 at 382. See also Griffiths LJ in Eagil Trust Co Ltd v Pigott-Brown [1985] 3 All ER 119 at 122.

Parliament provided that reasons shall be given, and in my view that must be read as meaning that proper, adequate, reasons must be given.19[1964] 2 QB 467 at 478. This statement was approved by the House of Lords in Westminster City Council v Great Portland Estates plc [1985] AC 661 at 673.

It may perhaps help at this point to attempt some broad summary of the authorities governing the proper approach to a reasons challenge in the planning context. Clearly what follows cannot be regarded as definitive or exhaustive nor, I fear, will it avoid all need for future citation of authority. It should, however, serve to focus the reader’s attention on the main considerations to have in mind when contemplating a reasons challenge and if generally its tendency is to discourage such challenges I for one would count that a benefit.

The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the ‘principal important controversial issues’, disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision.21[2004] 1 WLR 1953 at [35]–[36].

… a judgment is not to be approached like a summing-up. It is not an assault course. Judges work under enormous pressure of time and other pressures, and it would be quite wrong for this court to interfere simply because an ex tempore judgment given at the end of a long day is not as polished as it might otherwise be.25[1997] 2 FLR 602 at 606.

It has also been recognised that a generous interpretation ought to be given to a tribunal’s reasoning. It is to be expected, of course, that the decision will set out the facts. That is the raw material on which any review of its decision must be based. But the quality which is to be expected of its reasoning is not that to be expected of a High Court judge. Its reasoning ought to be explained, but the circumstances in which a tribunal works should be respected. The reasoning ought not to be subjected to an unduly critical analysis.27[2003] ICR 337 at [59].

The appellate court should not assume too readily that the tribunal misdirected itself just because not every step in its reasoning is fully set out in it.29[2013] 2 AC 48 at [25].

… the appellate court will examine the documents and evidence before the judge to see what the issues before him were and what the evidence was. In other words, this court will look to see whether the judge’s reasons, even if not expressed in terms or expressed clearly, can be deduced from those documents and the evidence. If the reasons are ones that can be deduced from those documents and the evidence, and if the judge’s findings of fact were ones which he was entitled to make having regard to those documents and that evidence, this court will not accede to a challenge to the judgment on the grounds of insufficiency of reasons.

I do not regard the reasons given by this tribunal as satisfactory … The reasons alone are a bare traverse of a circumstance in which discharge could be contemplated.33[1985] 3 All ER 699 at 703.

If tribunals do not have the time and back-up resources that they need to discharge their statutory obligation to provide adequate reasons, then the time and resources must be found. I absolutely reject the submission that reasons which would be inadequate if sufficient resources were available may be treated as adequate simply because sufficient resources are not available. Either the reasons are adequate or they are not, and the sufficiency of resources is irrelevant to that question. The adequacy of reasons must be judged by reference to what is demanded by the issues which call for decision. What is at stake in these cases is the liberty of detained patients on the one hand, and their safety as well as that of other members of the public on the other hand. Both the detained persons and members of the public are entitled to adequate reasons.

It has got to be borne in mind, particularly with tribunals of this sort, that they cannot be expected to give long and precise accounts of their reasoning; but a short and concise statement in clear language should normally be possible which fairly indicates to the recipient why his appeal was allowed or dismissed …39[1982] 1 All ER 498 at 506.

… reasons are not deficient merely because every process of reasoning is not set out. I further think that reasons are not insufficient merely because they fail to deal with every point raised before the committee at the hearing.45(1970) 21 P&CR 689 at 692.

… where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other.47[2000] 1 WLR 377 at 382.

The reasons that are set out must be reasons which not only will be intelligible, but which deal with the substantial points that have been raised.49[1964] 2 QB 467 at 478.

What the Secretary of State must do is to state his reasons in sufficient detail to enable the reader to know what conclusion he has reached on the ‘principal important controversial issues’. To require him to refer to every material consideration, however insignificant, and to deal with every argument, however peripheral, would be to impose an unjustifiable burden.52(1996) 71 P&CR 309 at 314.

… if it be that the judge has not dealt with some particular argument but it can be seen that there are grounds on which he could have been entitled to reject it, this court should assume that he acted on those grounds unless the appellant can point to convincing reasons leading to a contrary conclusion …54[1985] 3 All ER 119 at 122.

It seems to me important to recognise that the brief reference given by the tribunal itself in the decision notice to the refusal to adjourn, though in one sense a statement which could be regarded as more of a conclusion than a reason, was addressed to a tutored audience. Everyone involved in the case knew the short summary of facts which I have just repeated …65R(IB) 6/03 at [29]. See also: R v Mental Health Review Tribunal ex p Booth [1998] COD 203 at 204; Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 at [32].

… it must be borne in mind that the extended reasons of an employment tribunal are directed towards parties who know in detail the arguments and issues in the case. The tribunal’s reasons do not need to be spelt out in the detail required were they to be directed towards a stranger to the dispute.

I do not accept that the ‘informed audience’ point can properly be relied on to justify as adequate a standard of reasoning in tribunals which would not be regarded as adequate in a judgment by a judge. It does not follow that tribunals are obliged to produce decisions which are as long as judgments by a judge often tend to be. Far from it. A brief judgment is no less likely to be adequately reasoned than a lengthy one.

If an appeal is hopeless, very short oral reasons given by an appellate court may be sufficient. But especially when the appellant is a litigant in person putting forward a case on which he has very strong feelings, the Court (even if it considers that his case is hopeless and his strong feelings are misguided) should say enough to make clear to the litigant why his appeal has failed. In this case it might have been helpful for the Court to spell out to Mr Greene that his statutory right of appeal was limited to issues of law and that all his complaints seem to have concentrated on matters of fact. It might also have been helpful and saved time if, when the Court realised that Mr Greene was asking for written reasons, some written reasons, however brief, had been prepared and made available to him in order to explain why the appeal had been dismissed.

Whilst there can be no appeal from findings of fact, the absence of evidence to support a particular finding is an error of law. Similarly a finding of fact or refusal to find a fact will involve an error of law if the finding or refusal is a conclusion which no tribunal, properly directing itself, could reach on the basis of the evidence which had been given and accepted by it. I stress the word ‘accepted’ because it is important that tribunals, in reaching findings of fact, should set out in substance what evidence they do or do not accept.70[1974] ICR 120 at 122.

It seems to me that the arguments put forward on behalf of the employees in effect require, not a statement of reasons, but an analysis of the facts and arguments on both sides, with reasons for rejecting the arguments of the employees and reasons for accepting the facts relied upon in support of the tribunal’s conclusion. This is not necessary. The tribunal said that they found as a fact that clause 4 was observed. It is admitted that there was evidence to support this finding and indeed the whole conclusion. There is no right of appeal on a question of fact, so of what use, generally speaking, is it to have a detailed recitation of the evidence? A conclusion of fact with which this court or the appeal tribunal might disagree, provided it is justifiable on the evidence, gives rise to no ground of appeal. I therefore see no obligation upon the tribunal to state the facts in detail.72[1983] ICR 683 at 693.

I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which he has arrived at his findings, and then his conclusion?77[2003] 2 FLR 1035 at [11].

… when the court, in a case without written documents depending on eye-witness accounts is faced with two irreconcilable accounts, there may be little more to say other than the witnesses for one side were more credible …79[2000] 1 WLR 377 at 381.

Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing more else to say.80[2000] 1 WLR 377 at 382.

… the judgment must enable the appellate court to understand why the judge reached his decision. This does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision. If the crucial issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon.

I do not consider, for my part, that the AIT [Asylum and Immigration Tribunal] was bound to make particular findings as to how, in their view, the appellant came by his injuries. The burden of proof was on him. The AIT rejected the case he put forward. They were not obliged to look for some different or modified case that might be in his favour. Such an exercise anyway would necessarily have been speculative, and for that reason inapt and unhelpful.86[2007] EWCA Civ 373 at [11].

Bingham LJ in Eckersley v Binnie (1987) 18 Con LR 1 at 77–78 … said that ‘a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal’. That does not mean that the judgment should contain a passage which suggests that the judge has applied the same, or even a superior, degree of expertise to that displayed by the witness. He should simply provide an explanation as to why he has accepted the evidence of one expert and rejected that of another. It may be that the evidence of one or the other accorded more satisfactorily with facts found by the judge. It may be that the explanation of one was more inherently credible than that of the other. It may simply be that one was better qualified, or manifestly more objective, than the other. Whatever the explanation, it should be apparent from the judgment.88[2002] 1 WLR 2409 at [10].

In my judgment, the proper exercise of a judicial discretion requires the judge to explain how he has exercised it. This is the well known ‘balancing exercise’. The judge has not only to identify the factors he has taken into account, but to explain why he has given more weight to some rather than to others. Either a failure to undertake this exercise, or for it to be impossible to discern from the terms of the judgment that it has been undertaken, vitiates the judicial conclusion, which remains unexplained.

… clearly an appellate court is only able to assess whether the court below has failed to take into account relevant matters or has inappropriately taken into account irrelevant matters, if that court does set out its reasons with sufficient detail and clarity to make clear the facts upon which it has relied, and the matters which is has taken into account in exercising its discretion.94[1997] 2 FLR 602 at 606.

I do not believe that any adverse assessment involves the articulation of inexpressible value judgments.96[1997] 1 WLR 765 at 783.

I desire to emphasise as strongly as I can that the fact that a judge or commissioner does not set out every one of the reasons which actuate him in coming to his decision will not be sufficient to support an argument in this court that he has not applied his mind to the relevant considerations …99[1948] 1 All ER 333 at 334.

… a single extra sentence in the judgment, just identifying the point or points which in the end the recorder regarded as decisive, might have been all that was needed.101[1997] 2 FLR 602 at 606.

In my judgment there is one cardinal rule. The judge’s reasons should make clear to the parties why he has reached his decision. Where he has had to balance competing factors it will usually be possible to explain why he has concluded that some have outweighed others. Even where the competition is so unequal that the factors speak for themselves it is desirable to say so.105[2004] EWCA Civ 1378 at [7].

Where as here an issue of proportionality arises, because a Convention right is involved, an appellate court must be particularly careful when scrutinising the judgment. However, in such a case, there will usually be room for more than one conclusion on the evidence and arguments put before the judge. While it would be wrong to equate the decision in such a case with the exercise of a discretion, it will normally involve the balancing of various competing factors, which is primarily the function of the Judge. I do not accept the notion that, in every such case, an appellate court should review such a balancing exercise on a ‘right or wrong’ basis, so that it is entitled, indeed, I think it would follow, obliged, to carry out that exercise afresh itself.

I believe that my view is consistent with the approach of Lord Bingham of Cornhill in the leading English case concerning the exercise of the court’s powers in a case such as this, South Bucks District Council v Porter [2003] 2 AC 558. In particular, at [37] of his speech, he referred to the assessment of proportionality, and said that it was ‘in all essentials the task which the court is in any event required by domestic law to carry out’, when applying the normal yardstick of an SIC ‘justice and convenience’ in connection with the grant of an injunction, i.e. when the court is exercising its discretion. However, I would accept that the band, or margin, of acceptability accorded to the Judge will be, at least often, narrower on a question of proportionality, than on one of discretion. To put the point in more practical terms, an appellate court should often be reluctant to interfere with a decision turning on proportionality, than with one which only turns on discretion.106[2004] EWCA Civ 1378 at [42]–[43].

… the particularity with which he is required to set them out must depend on the circumstances of the case before him and the nature of the decision he is giving.116[1985] 3 All ER 119 at 122.

There are some sorts of interlocutory applications, mainly of a purely procedural kind, upon which a judge exercising his discretion on some such question as whether a matter should be expedited or adjourned or extra time be allowed for a party to take some procedural step, or possibly whether relief by way of injunction should be granted or refused, can properly make an order without giving reasons. This, being an application involving questions of law, is in my opinion clearly not such a case.118[1976] Ch 319 at 325–326.

Of course, as Jacob LJ said in argument, the issue cannot be resolved simply by asking how many of the Tribunal’s reasons survive. The issue has to be determined partly by reference to the probative value of those reasons, both in absolute terms and by comparison with the rejected reasons, and objectively, but also subjectively, in the sense of seeing what weight the tribunal gave to the various reasons it gave. The issue also has to be determined bearing in mind the overall picture including reasons which a tribunal would have had, but which were not expressed. An example would be the impression made by a witness (a factor which is not, in my view, high in the hierarchy of cogency, especially in an asylum case which will normally involve an appellant from a very different cultural background from that of the Tribunal).123See also Lord Neuberger in Holmes-Moorhouse v Richmond upon Thames London Borough Council [2009] 1 WLR 413 at [51].

But it is a corollary of the discretion conferred upon the tribunals that it is their duty to set out their reasoning in sufficient detail to show the principles upon which they have proceeded … Were it otherwise, the parties would in effect be deprived of their right of appeal on questions of law. No great elaboration is required and the task should not constitute a burden. Indeed, the need to give reasons may well assist in the process of properly making the discretionary assessment of damages.125[1973] 1 WLR 45 at 49.

The basis of this proposition is that in the absence of reasons it is impossible to determine whether or not there has been an error of law. Failure to give reasons therefore amounts to a denial of justice and is itself an error of law.127[1974] ICR 120 at 122.

… this judge was under a duty to give reasons and did not do so. Without such reasons, his judgment is not transparent, and we cannot know whether the judge had adequate or inadequate reasons for the conclusion he reached.129[2001] 1 WLR 377 at 383.

It should not be assumed that the court that (for whatever reason) failed to give reasons had no reasons. Here, for example, it seems likely that the judge believed he had said enough. In that we differ from him.130[2001] 1 WLR 377 at 383.

If it is clear that the adjournment was in fact refused for good reason, but the expression of that good reason was insufficient and failed to fulfil applicable legal standards, that failure would not, in my judgment, of itself necessarily justify this court in allowing the appeal. The legal defect constituted by the tribunal’s failure to express sufficient reasons would, or at least might, be remedied by this court declaring that the reasons were in truth legally insufficient, even though the appeal were dismissed. Such an approach would be in line with the Strasbourg jurisprudence within which the European Court of Human Rights has often said that its declaration of a particular position, without any further relief being granted, sufficiently vindicates whatever is the Convention right in question.138[2003] EWCA Civ 33, reported as R(IB) 6/03 at [12].

Summary reasons should not contain a fully comprehensive analysis or spell out every step in the reasoning or deal with every conceivable point; their purpose (as Donaldson LJ put it [in UCATT v Brain [1981] IRLR 225 at 227]) is to tell the parties in broad terms why they lost or won.140[2009] EWCA Civ 249 at [19].

… where a judge has received no request from the parties to reconsider his judgment or add to his reasons, and has not demonstrated the need in conscience to revisit his judgment, but on the contrary has received grounds of appeal and an application for permission to appeal on the basis of the alleged inadequacies of his judgment, then it would be most unwise for him to rewrite his judgment (other than purely editorially) and it would take the most extraordinary reasons, if any, to justify such a course on his part. It is also plain to us that this was not the case of a short judgment on a straightforward issue where an appeal might be avoided if the judge supplied further reasoning which had been requested of him.151[2012] EWCA Civ 246 at [31].

require any person, body or other tribunal whose decision is the subject of proceedings before the Upper Tribunal to provide reasons for the decision, or other information or documents in relation to the decision or any proceedings before that person, body or tribunal.

The collegiality which is an essential part of judicial life cannot be allowed to intrude into the forensic space which necessarily separates lower tribunals from those with oversight of their decisions.173[2009] EWCA Civ 679 at [29].

… there are dangers in asking the original tribunal for further reasons where the ground of appeal is inadequacy of reasoning. It will not be appropriate where the inadequacy of reasoning is on its face so fundamental that there is a real risk that supplementary reasons will be reconstructions of proper reasons, rather than the unexpressed actual reasons for the decision. Nor will it be appropriate where there have been allegations of bias (unless, perhaps, where these are manifestly unfounded). The employment appeal tribunal should always be alive to the danger that an employment tribunal might tailor its response to a request for explanations or further reasons (usually subconsciously rather than deliberately) so as to put the decision in the best possible light.178[2005] EWCA Civ 578 at [19].

The national courts must, however, indicate with sufficient clarity the grounds on which they based their decision. It is this, inter alia, which makes it possible for the accused to exercise usefully the rights of appeal available to him.190(1992) 16 EHRR 219 at [33].

Article 6(1) obliges courts to give reasons for their decisions, but cannot be understood as requiring a detailed answer to every argument. Nor is the European Court called upon to examine whether arguments are adequately met. Making a general assessment, the Court does not find that the judgment of the Industrial Appeals Tribunal is insufficiently reasoned.192(1994) 18 EHRR 481 at [61].

The extent to which this duty to give reasons applies may vary according to the nature of the decision. It is moreover necessary to take into account, inter alia, the diversity of the submissions that a litigant may bring before the courts and the differences existing in the Contracting States with regard to statutory provisions, customary rules, legal opinion and the presentation and drafting of judgments. That is why the question whether a court has failed to fulfil the obligation to state reasons, deriving from Article 6 of the Convention, can only be determined in the light of the circumstances of the case.194(1994) 19 EHRR 553 at [29].

The notion of a fair procedure requires that a national court which has given sparse reasons for its decisions, whether by incorporating the reasons of a lower court or otherwise, did in fact address the essential issues which were submitted to its jurisdiction and did not merely endorse without further ado the findings reached by a lower court. This requirement is all the more important where a litigant has not been able to present his case orally in the domestic proceedings.196(1997) 26 EHRR 159 at [60].