Promulgation and control over decisions and reasonsTimes 5 SeptemberRe [1973] 1 WLR 19Re [1955] Ch 260Times 20 January
14.256In civil law, a tribunal retains jurisdiction to decide a case until it has given a decision and that decision has been formally issued.
1In criminal matters, a court loses its jurisdiction as soon as it has announced its decision orally: R v Essex Justices ex p Final [1963] 2 QB 816; R v Coates [2004] 1 WLR 3043. The position is now more flexible than it once was in order to take account of the giving of reasons: Maurice Kay J in Steward v Director of Public Prosecutions [2004] 1 WLR 592 at [11]. On the effect of the release of a draft judgment see: R v Steele (2006) Times 5 September. And in Birmingham City Council v Yardley [2004] EWCA Civ 1756 at [18]; (2004) Times 13 December, the Court of Appeal spoke as if a judgment was final for enforcement purposes, despite being subject to the judge’s final approval and although no order had been drawn up. That process is called perfection or promulgation; the terms are interchangeable. It is only at that point that the tribunal’s jurisdiction over the dispute comes to an end.
2This is so even if the time for appealing runs from an earlier date: Paulin v Paulin [2009] 3 All ER 88. This affects the power to change a tribunal’s decision or the reasons for that decision. Before then, the tribunal retains power to change its decision. Afterwards, there is power to correct it or set it aside only in limited circumstances.
Promulgated
14.257A tribunal retains jurisdiction to decide a case until its decision has been promulgated. That means until it has been communicated to the parties in the form provided for in the governing legislation. The legislation may stipulate what has to be promulgated for this purpose. In
Baxendale-Walker v Law Society,
3[2006] 3 All ER 675. for example, section 48(1) of the Solicitors Act 1974 made clear that it was the decision itself that had to be promulgated; the reasons could be issued separately and later. Under TCEA, promulgation occurs when the decision has been put into writing and sent to the parties.
4R (Anufrijeva) v Secretary of State for the Home Department [2004] 1 AC 604 at [26]. Lord Millett said at [39] that although a decision did not have legal effect until it was communicated, an uncommunicated decision could be effective for some purposes. A decision announced orally is promulgated immediately.
5Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 at [53].Changes before promulgation
14.258Until promulgation, a tribunal may make any change it wishes in the decision.
6This is a long-standing judge-made rule: Patel v Secretary of State for the Home Department [2015] EWCA Civ 1175 at [50]. In the courts, it reflects the difference between the judge’s judgment and the court order; it is the latter that is determinative. This includes coming to a completely different conclusion.
7In re L and another (Children) (Preliminary Findings: Power to Reverse) [2013] 1 WLR 634. In
Stewart v Engel,
8[2000] 1 WLR 2268. Sir Christopher Slade described this as ‘not merely consistent with, but also a proper application of the overriding objective’.
9[2000] 1 WLR 2268 at 2276.14.259The decision may be changed on the tribunal’s own initiative or on the application of one of the parties.
10Re Harrison’s Share under a Settlement [1955] Ch 260. It is irrelevant whether the decision recalled was given orally or in writing. The tribunal may act because new evidence has been produced or a new argument put to it. Or it may act simply because it has changed its mind about the evidence and arguments that were before it. The courts have said that this power to reconsider should be exercised only ‘in the most exceptional circumstances’
11Re Barrell Enterprises [1973] 1 WLR 19; Taylor v Lawrence [2003] QB 528 at [13]. or for ‘strong reasons’.
12Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513 at [43]. Every case depends on its own circumstancs, but the overriding objective is always to deal with the case justly.
13In re L and another (Children) (Preliminary Findings: Power to Reverse) [2013] 1 WLR 634 at [27]. The power is best exercised when the tribunal itself identifies a mistake and should not be used in a way that subverts the appeal process.
14Compagnie Noga D’Importation et D’Exportation SA v Abacha [2001] 3 All ER 513 at [47]. Compare the comment of Arden J quoted at [44].14.260However, the tribunal may go wrong in law if it has previously announced its apparently final decision to the parties and then substitutes a different, written one.
15Gutzmore v J Wardley (Holdings) Ltd [1993] ICR 581. However, this will not be wrong in law if it was clear that the decision as announced orally was inadvertently not what was intended. See Adam and Harvey Ltd v. International Maritime Supplies Co Ltd [1967] 1 WLR 445. This case involved a correction after promulgation, but the reasoning is applicable.Draft decisions
14.261These principles apply also to a draft decision that has been issued for the parties to identify typing and other obvious mistakes.
16Robinson v Bird [2003] EWCA Civ 1820; (2004) Times 20 January. The representatives may be allowed the chance to make oral submissions on the change in the decision, but this is a matter for the tribunal’s discretion.
17[2003] EWCA Civ 1820 at [98]. The purpose of issuing a decision in draft is to identify mistakes, but the courts discourage invitations to a judge to reconsider the conclusions expressed in a draft judgment.
18Egan v Motor Services (Bath) Ltd [2008] 1 WLR 1589 and R (Edwards) v Environment Agency [2008] 1 WLR 1587.Fairness
14.262Any change must be consistent with the overriding objective and the normal principle of fairness. This does not necessarily mean that the tribunal must allow further submissions or another hearing, as the parties have already had the chance to put forward their evidence and arguments. However, this may be necessary if the change occurs because of new evidence or argument.
Changes after promulgation
14.263For the tribunal’s powers over its decision after promulgation, see chapter 15: Post decision.