Clarifications - when and how to ask for them

The Court of Appeal has recently considered the often thorny terrain of seeking clarification from a Judge once a judgment has been handed down in YM (Care Proceedings) (Clarification of Reasons) [2024] EWCA Civ 7. Baker J makes clear that the purpose of the process of clarifications is to head off unnecessary appeals and very helpfully sets out 5 lessons to follow: 

(1) A judgment does not need to address every point that has arisen in the case. The court should only be asked to address any omission, ambiguity or deficiency in the reasoning in the judgment if it is material to the decisions that have to be taken in the proceedings. In care proceedings, the decisions are whether the threshold criteria for making orders under s.31(2) are satisfied and, if so, what orders should be made to meet the child’s welfare needs.

(2) When making a request for clarification of any perceived omission, ambiguity or deficiency in the reasoning in the judgment, counsel should therefore identify why the clarification is material to the decisions that have to be taken in the proceedings.

(3) Counsel should never use a request for clarification as an opportunity to re-argue the case, reiterate submissions, or invite the judge to reconsider the findings.

(4) Requests for clarification should not be sent in separately by the parties but rather in a single document compiled by one of the advocates. If necessary, there should be an advocates meeting to compile the document. Save in exceptional circumstances, there should never be repeated requests for clarification.

(5) Judges should only respond to requests for clarification that are material to the decisions that have to be taken in the proceedings.

The background to the appeal as set out in the Judgment makes clear the additional difficulties that can arise when clarifications stray outside of the above lessons and rather than avoiding an appeal (the very nature and purpose of clarifications) indeed have given rise to more.   

14th Feb 2024

Sharan Bhachu

Call 1999