Reasons for decisionTimes 30 Junesub nom Commissioners for Her Majesty’s Revenue and Customs v Banerjee (No 2) [2009] 3 All ER 930Times 17 Maysub nom Kitchen R(I) 5/94Times 27 MayTimes 27 MayRe [2008] 2 FLR 1377
Courts and tribunals
14.191Courts make orders and judges deliver judgments explaining those orders. Tribunals are more likely to make decisions and give reasons for them. The difference is not just one of terminology.
1Maurice Kay LJ in Secretary of State for Work and Pensions v Morina [2007] 1 WLR 3033 at [7].14.192A tribunal’s reasons differ in a number of respects from judgments delivered in court. It is much less likely that a tribunal will give its reasons orally at the end of the hearing. It is more efficient to spend its time hearing cases and to provide its reasons later.
14.193In some jurisdictions, there is no duty to give reasons unless they are requested by one of the parties. In these cases, the lack of an oral judgment allows the parties time to consider whether to apply for reasons to be provided.
14.194As a result of this separation of the reasons from the making of the decision, the process of writing cannot assist in clarifying the tribunal’s reasoning and, perhaps, the outcome. This can be offset to some extent if the tribunal makes it a habit to record the steps in its reasoning at the time it makes the decision for later use.
Reasons under TCEA
14.195A tribunal may be under a duty to provide reasons for particular decisions and has a power to provide reasons for decisions in respect of which the duty does not arise.
The duty
14.196The terms of the duty vary.
2UTR r40; GRC Rules r38; HESC Rules rr30, 42 and 43; IAC Rules r29 and Sch para 10; Lands Rules r51; PC Rules r36; SEC Rules r34; Tax Rules r35; WPAFC Rules r32.14.197These duties distinguish between decisions that finally dispose of all issues in the proceedings and decisions that dispose of proceedings. UTR 1(3) defines ‘dispose of proceedings’:
… ‘dispose of proceedings’ includes, unless indicated otherwise, disposing of a part of the proceedings.
References to disposal of all issues may indicate that disposal of part of the proceedings is not included. However, it may not: the rule may require reasons if it disposes of all issues in a part of the proceedings. For example: the decision may deal with a preliminary issue affecting part but not all of the appellant’s case. The interpretation of the rules is complicated by the fact that some use both expressions.
14.198There is no duty to provide reasons for consent orders
3See: UTR r39(2); GRC Rules r37(2); HESC Rules r29(2) (other than mental health cases); Lands Rules r51(3); PC Rules r35(2); SEC Rules r32(2); Tax Rules r34(2); WPAFC Rules r30(2). There is no equivalent power in IAC Rules. or for decisions dealing with correction, set aside, review or permission to appeal.
4See: UTR r40(2); HESC Rules rr30(2) (other than mental health cases) and 41(2) (mental health cases); IAC Rules r29(2); Lands Rules r51(2); PC Rules r36(2); SEC Rules r34(2); Tax Rules r35(2); WPAFC Rules r32(1).The power
14.199A tribunal may not be under a duty to provide reasons, because: (i) the decision does not dispose of the proceedings; (ii) the decision does dispose of the proceedings, but is excluded from the duty (decisions dealing with correction, set aside, review or permission to appeal); or (iii) the decision does dispose of the proceedings, but no application has been made in time for reasons to be provided.
14.200In all of these cases, the tribunal has power to provide reasons. In some cases, it is allowed by the rules.
5See: UTR r40(4); GRC Rules r38(3); HESC Rules rr30(4) (other than mental health cases) and 41(4) (mental health cases); IAC Rules r29(3)(b); Lands Rules r51(4); PC Rules r36(3); SEC Rules r34(2); WPAFC Rules r32(1). In other cases, there is an extra-statutory common law power to give reasons.
6CH 2553/05 at 24.Non-disclosure and confidentiality
14.201Reasons given by a tribunal must take account of the need to withhold information from individuals
7See: UTR r40(3), although strictly the duty is confined to the decision notice; GRC Rules r38(2); HESC Rules rr30(2) (other than mental health cases) and 41(2) (mental health cases); IAC Rules r29(2); PC Rules r36(2); SEC Rules r34(5); WPAFC Rules r32(4). Lands Rules r15 and Tax Rules r14 contain only power to withhold information from the public. and, although the rules do not so provide, information that is confidential under the rules.
8By virtue of UTR r19 and SEC Rules r19.The reasons for decision
14.202The law sets the minimum standard that a decision and its reasons must attain. This is dealt with in chapter 4. This section is concerned with the practice of drafting. Good practice deals with matters that are not covered by the legal standard and sets a higher level of attainment than the law.
R (TS) v Angela Bowen (Chair of SENDIST) and Solihull Metropolitan Borough Council9[2009] EWHC 5 (Admin). illustrates the distinction. The judge complained that the tribunal’s reasons did not neatly fit into the structure of a statement of special educational needs, but nonetheless found that the reasons were adequate in law.
14.203This is not a handbook on drafting.
10See Louise Mailhot and James D Carnwath Decisions, Decisions, Les Éditions, 1998; and Andrew Goodman, How Judges Decide Cases: Reading, Writing and Analysing Judgments, Universal, 2007, part 7. See also articles in Tribunals in appendix C. However, some advice is appropriate. It is directed primarily at the First-tier Tribunal.
14.204There are three criteria for drafting reasons. In descending order of importance they are: content, clarity and style. These are not separate matters; they are connected. Style can affect clarity, and lack of clarity can affect content.
Who are the reasons for?
14.205A key issue is: who is the audience for the reasons? The answer will affect how they are written.
14.206A decision will always be addressed to an unsuccessful party.
11There may not be a winner and a loser, as each party may obtain some benefit from the decision. For example: if the issue was the party’s income, some expenses may be allowed for tax purposes and other not. A successful party may also be interested in knowing the tribunal’s reasoning, as it may be useful for the future, either in later stages of the case in question or in other cases. The tribunal may also address remarks to the representative of one or more of the parties or to representatives in general. If the decision is given on appeal, the tribunal may say something that is relevant to the tribunal or decision-maker whose decision is under appeal or to the tribunal or decision-maker to which the case is remitted for reconsideration. If there is the possibility of an appeal, the decision may be written in part with the appellate body in mind. If the decision is of precedent value, it may be written for decision-makers, lower tribunals and tribunals of the same level. It may also be relevant to possible changes in legislation and may be addressed to the policy makers or those who draft the legislation.
14.207Even if reasons are not drafted for a particular user or class of user, they have to take into account the way that that user or class may use, or misuse, them. For example: a decision may be principally addressed to the unrepresented claimant who lost, but the way that it is worded should take account of the possibility that loose statements could be taken out of context by representatives in later cases.
14.208In some cases, it will be sufficient to draft the reasons for one audience, possibly with some adjustment to address others as well. In other cases, one part of the reasons may be written for one audience and other parts for another. In yet other cases, one part of the reasons may have to be expressed in alternative ways for the benefit of all those who may be interested. For example: a detailed analysis of the law may have to be set out if an appeal is anticipated, but may also be summarised in simple terms for an unrepresented party.
14.209Although each case is individual, it is possible to identify the general form that reasons at a particular level are likely to take.
14.210A decision by the First-tier Tribunal will be primarily written for the benefit of the parties. It will concentrate on the facts and must provide sufficient information to allow an unsuccessful party to decide whether to appeal against the decision.
14.211A decision by the Upper Tribunal on an issue of law will also be addressed to the parties. But it fulfils a different function. It will concentrate on the law rather than the facts and may be directed to the decision-maker or tribunal who must reconsider the case or to future tribunals or decision-makers as a precedent.
What should the reasons contain?
14.212Once the audience has been identified, the content and the amount of detail that the reasons contain will depend on the issues involved in the decision, the time available and the ethos of the tribunal. To take two contrasting examples. A parking adjudicator typically has to deal with limited issues quickly after a hearing that lasts only a few minutes and is likely to produce short reasons. An employment tribunal may deal with complex issues involving conflicting evidence heard over days or weeks and its reasons are likely to run to many pages of detailed analysis.
14.213Whatever their length, the reasons should show that the tribunal identified the issues that arose, analysed the evidence rationally, made the necessary findings of fact, interpreted the law correctly, and came to a permissible decision on the findings of fact.
14.214This does not mean that each of those matters has to be set out separately or at great length. What matters is that the reasons should show that they have been done.
14.215There are a number of devices that can be used to reduce the length of the reasons. In most cases before the First-tier Tribunal, the only audience will be the parties and their representatives. They will be an informed audience as to the evidence before the tribunal; it will be available in the papers or in the record of proceedings. They may also be informed on the law; it will either be in the papers or known to the representatives. The judge can either take those matters as read or refer to them only as necessary in explaining the tribunal’s decision.
14.216Incorporating information by reference is a convenient, time-saving device. But it must be used properly. In
Givaudan & Co Ltd v Minister of Housing and Local Government,
12[1967] 1 WLR 250. Megaw J allowed for this possibility and set out the conditions for its proper use:
There can be no objection to the inclusion, by reference, in the Minister’s statement of reasons, of the inspector’s conclusions, provided that those conclusions are, in themselves, sufficiently clearly and unambiguously expressed.
13[1967] 1 WLR 250 at 259.The danger in this approach is that any inadequacy in the material incorporated will render the tribunal’s decision itself inadequate. If it does, the tribunal must ensure that it does not appear to have abdicated its duty to think matters through for itself.
14Newcastle upon Tyne Hospitals NHS Foundation Trust v Armstrong [2010] ICR 674 at [46].14.217Those matters that do have to be set out or emphasised can be dealt with succinctly. Take as an example the reason for rejecting an argument in an employment and support allowance appeal. The judge may write: ‘The claimant told us that she had difficulties getting up her stairs as she did not have a banister. That is not relevant, because the test concerns only two steps with the benefit of a handrail.’ Those two sentences record the tribunal correctly identified the issue, understood the law and applied it correctly.
14.218In dealing with evidence, the reasons should show how the tribunal dealt with the evidence produced by an unsuccessful party. If the evidence is not mentioned, the party may believe that it has not been considered and that this failure caused the tribunal to make the wrong decision. Even if the evidence is not relevant to the legal issues, the party may not see it that way and an explanation will make that clear. What is obvious to a judge is not necessarily clear to a claimant before a tribunal.
14.219It is good practice for a tribunal to give a complete statement of its reasoning. As a matter of adequacy, it is not essential to express what can be seen by inference.
15See Lord Lane CJ in R v Immigration Appeal Tribunal ex p Khan (Mahmud) [1983] QB 790 at 794. However, it is more helpful for the tribunal to give its reasons rather than leave the readers to deduce them.
14.220If the rules of procedure contain a checklist,
16See chapter 7. the tribunal should show that it has considered all the items on the list so that the Upper Tribunal may know that it has taken all relevant factors into account.
17Woodhouse v Consignia plc [2002] 1 WLR 2558 at [33].Anonymity
14.221Rule 32(6) Tax Rules provides for anonymity in published reports of decisions of the Tax Chamber of the First-tier Tribunal:
(6)If the Tribunal publishes a report of a decision resulting from a hearing which was held wholly or partly in private, the Tribunal must, so far as practicable, ensure that the report does not disclose information which was referred to only in a part of the hearing that was held in private (including such information which enables the identification of any person whose affairs were dealt with in the part of the hearing that was held in private) if to do so would undermine the purpose of holding the hearing in private.
14.222Otherwise the Senior President has issued a practice statement on Form of Decisions and Neutral Citation which states:
8. Where anonymity was previously given to a party in a tribunal case, that practice will continue pending further review.
18For an analysis of the competing interests in a particular case, see the judgment of Henderson J in Commissioners for Her Majesty’s Revenue and Customs v Banerjee (No 2) [2009] 3 All ER 930.How can the reasons be made clear?
14.223A tribunal’s reasons must be clear, whatever their contents. In a sense, everything that is not content is style. However, it is important to distinguish clarity from other aspects of style. Reasons should always be clear; all other aspects of style are a matter of preference.
14.224Writing reasons for decision is an exercise in communication. In order to be effective, they must be clear. And to be clear they must be clear to the parties and to others who may have to read them.
14.225Reasons cannot be clear if the judge does not know what to say and how to say it. Planning is essential for most judges; few are able to produce a good set of reasons without thought.
14.226There are three aspects to clarity: contents, expression and arrangement.
14.227The contents must be clear before they can be expressed in clear language and with a clear arrangement. No amount of clarity of expression or elegance of arrangement can compensate for confused or inadequate reasoning. They only serve to expose it. Findings of fact should be clearly identified and distinguished from a statement of the evidence. Reasons should be distinguished from arguments and conclusions.
14.228Expression covers the use of language and the length and structure of sentences and paragraphs. The language used should be clear and understandable to the principal audience(s). Some jargon and terms of art are necessary, but many are not. The judge should explain those that are necessary and find a clear substitute for those that are not. Abbreviations and acronyms should always be explained at their first use. Euphemisms are best avoided. It may appear kinder to say ‘we had difficulty reconciling the claimant’s evidence with the medical evidence’ than ‘we rejected the claimant’s evidence because it was incompatible with the objective medical evidence’. But the latter is clear while the former is not. Is the tribunal saying that it did manage to reconcile the evidence, although it found it difficult to do so, or is it saying that it did not accept the claimant’s evidence because of the conflict?
14.229The reasons should be split into paragraphs that contain a single topic or idea. Those paragraphs should not be so long as to hamper the reader in absorbing what the reasons say and navigating around them. Sentences should not be too long and punctuation should be used to used to help make the meaning clear at first reading.
14.230Arrangement involves the order in which the contents are presented and the manner of their presentation. Headings are useful for the reader and the writer, especially if the reasons are of any length. For the reader, they help to show the structure of the reasons and to find a way around them easily. For the writer, they impose a structure, which assists in ensuring that the reasons are comprehensive of matters to be included and contributes to their clarity.
14.231In
Jasim v Secretary of State for the Home Department,
19[2006] EWCA Civ 342 at [4]; (2006) Times 17 May. Sedley LJ emphasised that form should follow from purpose:
It is important, since the purpose of these documents is to be able to be understood and analysed, that reasons should be set out – as indeed they commonly are – in manageable paragraphs and sub-paragraphs, with cross-headings where appropriate.
Pill LJ agreed, adding that a structured form could also assist the writer of the reasons.
20[2006] EWCA Civ 342 at [47].14.232But too much structure can obstruct understanding. In
Williams v J Walter Thompson Group Ltd,
21[2005] IRLR 376. the Court of Appeal found extensive numbering in roman numerals inconvenient.
What style should be adopted?
14.233Ideally, the style should be dictated by the content and contribute to the clarity of the reasons. However, it is a personal matter and inevitably there is considerable variation between judges.
14.234The structure of the decision. Some judges set out the procedural history of the case, summarise the evidence, make findings of fact, identify the relevant law and then apply the law to the facts to produce the conclusion. Others set out the issues and deal with each in turn.
14.235The language used. Some judges prefer more formal language, while others use more colloquial expressions. This may vary according to the audience.
14.236
The length. Some judges are more verbose in their expression, others more concise. However, decisions should not be unduly long, even in the most complex cases.
22Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [131].14.237The layout of the decision. Some judges use headings; others do not. All judges are required to use numbered paragraphs. The Senior President has issued a practice statement on Form of Decisions and Neutral Citation which states:
2.First-tier Tribunal and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering.
14.238The use of evidence, arguments and law. Some judges set out evidence, some summarise it, some merely refer to it, and others incorporate it by reference to a particular document or to the record of proceedings. The same options apply to the arguments of the parties and the statement of the law.
14.239Whatever the style adopted, the reasons should always be expressed politely and dispassionately. This is appropriate even, or especially, when expressing criticism of a person, conduct or evidence.
14.240Criticism should be avoided unless it is necessary to the decision.
When is humour appropriate?
14.241Humour is seldom appropriate, if ever. And it is not easy to identify when it is appropriate. It is best avoided. Even the mildest remark can be misunderstood. In
Secretary of State for Work and Pensions v Chiltern District Council,
23Reported in the Court of Appeal as R(H) 2/03. the author had commented that, in view of the number of issues raised, the case was one to take to a desert island. In the Court of Appeal, Arden LJ seemed to miss the humour but felt able to deduce from that statement a tinge of regret on the author’s part at the outcome of the appeal.
Standard form and content
14.242Reasons may be standardised in their form or their content.
14.243A standard form can help ensure that the decision is given in a structured form.
24Kennedy and Mann LJJ in Solihull Metropolitan Borough Council Housing Benefit Review Board v Simpson (1994) 27 HLR 41 at 48 and 50. The tribunal may provide a standard form for use or recommend one through training. Judges may also develop their own standard forms.
14.244The Court of Appeal in
Solihull Metropolitan Borough Council Housing Benefits Review Board v Simpson25(1994) 27 HLR 41 at 48. approved this sort of approach to providing structured reasons. It is possible to spell out a list of headings from the courts’ decisions. In
Evans and others v Secretary of State for Social Security,
26R(I) 5/94. This case is usually known as Kitchen after one of the parties. In R (W) v SENDIST and London Borough of Hillingdon [2005] ELR 599 at [26], Stanley Burnton J commended the practice of identifying issues as a structure for a tribunal’s reasons. the Court of Appeal was concerned with four appeals from medical appeal tribunals. It suggests a framework for a decision:
•identify the issues before the tribunal;
•show that the tribunal dealt with them;
•identify the evidence that the tribunal relied on; and
•show that the tribunal acted lawfully.
A checklist would do just as well.
14.245Standard content is more dangerous than a standard form, as it may not be sufficiently related to the issues, evidence and argument in the particular case. However, it is particularly useful for recording matters that have to be repeated regularly and whose accuracy or relevance does not depend on the particular case.
14.246Whatever the standard practice followed, the reasons must be appropriate or adapted to the facts and circumstances of the case. In
Mansur v Turkey,
27(1995) Series A No 319-B. the European Court of Human Rights has taken account of the facts that reasons given by a Turkish court were in stereotyped terms in holding that there had been a violation of article 5(3).
Signature
14.247Under TCEA, a signature is not required. However, it is good practice to sign a master copy of the final version in order to avoid error and dispute.
28Kennedy and Mann LJJ in Solihull Metropolitan Borough Council Housing Benefit Review Board v Simpson (1994) 27 HLR 41 at 48 and 50.Draft decisions
14.248A tribunal may issue a decision in draft in order to allow the parties, or more likely their representatives, to draw attention to minor errors in the facts, the arguments or its citations of legislation and case-law. It provides a party or representative with a chance to identify matters that have not been covered in the reasons. Exceptionally, it may also allow them to make submissions on the substance of the decision.
29R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs [2010] EWCA Civ 158. However, this is discouraged.
30Egan v Motor Services (Bath) Ltd [2008] 1 WLR 1589 and R (Edwards) v Environment Agency [2008] 1 WLR 1587.Oral and written decisions
14.249The rules of procedure may specify the form in which the decision may be given – oral or written – or permit either. If a choice is allowed, expressly or by implication, it is a matter for interpretation which constitutes the promulgation of the decision
31SK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 495 at [21]; (2008) Times 27 May. after which the tribunal’s function is discharged.
Conflict between oral and written decisions
14.250If there is, by mistake, a conflict between the oral and written decision, it may be possible to correct one to bring it into accord with what the tribunal intended.
32Preston Banking Co v Williams Allsup and Sons Ltd [1895] 1 Ch 141. See further chapter 15.14.251If, however, it appears that the tribunal has changed its mind, it may involve an error of law.
33Gutzmore v J Wardley (Holdings) Ltd [1993] ICR 581; SK (Sri Lanka) v Secretary of State for the Home Department [2008] EWCA Civ 495 at [24]; (2004) Times 27 May.Decisions as precedents
14.252A decision of the Upper Tribunal is more likely to deal with issues of law and less likely to deal with issues of fact than a decision of the First-tier Tribunal. If it is likely to have value as a precedent, there are considerations that do not apply to other decisions. But, like all decisions, their form and content need to take account of users. And users will be concerned with the use to which the decision will be put. That identifies the focus on the decision, the reasons that support it, and the practical implications for the future. The process by which the tribunal came to its conclusion on the law is of less, or even no, importance to anyone except the judge who made it.
14.253On that approach, it is possible to identify the matters that may be included in decreasing order of importance. Importance determines two considerations: whether the particular matter should be included and, if it is, the detail and prominence that is appropriate.
•A short statement of the issue to assist the reader in following the reasoning.
•The decision made.
•An introduction explaining something of the history and how the litigation developed.
34Re S and others (Residence) [2008] 2 FLR 1377 at [7]. •The tribunal’s reasons for that decision. Lord Macmillan’s advice in
The Writing of Judgments35(1948) 26 Can BR 491 at 491. was:
The strength of a judgment lies in its reasoning and it should therefore be convincing.
•The relevant legislation, identified and set out, as it may not be readily accessible later.
•The arguments presented by the parties and the tribunal’s conclusion on those arguments, which also serve to indicate arguments that the tribunal did not consider.
•The stages of reasoning by which the judge came to the ultimate conclusion. Lord Macmillan’s advice in
The Writing of Judgments36(1948) 26 Can BR 491 at 498. was:
It is undesirable to cumber a judgment with all the apparatus of research which Bench and Bar have utilised in ascertaining the principle of law to be applied.
•The procedural steps by which the party’s arguments were elicited.
Reasons as justification
14.254A tribunal’s decisions may be influenced, consciously or otherwise, by factors that are not relevant in law. If so, the tribunal’s reasons must justify its decision by reference to legally relevant criteria. As Chaïm Perelman and Lucie Olbrechts-Tyteca wrote:
It is a common, and not necessarily regrettable, occurrence even for a magistrate who knows the law to formulate his judgment in two steps: the conclusions are first inspired by what conforms most closely with his sense of justice, the technical motivation being added on later … Strictly legal reasons are adduced only for the purpose of justifying the decision to another audience.
37Chaïm Perelman and Lucie Olbrechts-Tyteca, The New Rhetoric: A Treatise on Argumentation, Notre Dame, 2008, p43.14.255This process is distinct from a decision that is made on the basis of instinct or intuition, which has to be dissected by the conscious mind in order to reveal the reasons behind it.