Bond v Dunster Properties Ltd and Others: CA 21 Apr 2011

The defendant appealed against the judge’s findings as to fact delivered some 22 months after the hearing.
Held: The appeal failed. Though such a delay must require the court carefully to investigate the judgment, it did not of itself invalidate it. Arden LJ said: ‘An unreasonable delay of this kind reflects adversely on the reputation and credibility of the civil justice system as a whole, and reinforces the negative images which the public can have of the way judges and lawyers perform their roles. If there were regular delays of this order, the rule of law would be undermined. There can, of course, be very different reasons for delay, such as ill-health of the judge or a close relative. In rare cases it could be a reprehensible lack of diligence or even sometimes a belief that the parties might do better to settle their differences or to conduct their affairs without knowing the legal result. None of these reasons, except serious ill-health of the judge, would, however, justify a substantial delay beyond the usual period taken for delivering judgments. This may vary according to the tier of the court but is usually taken to be three months.’ and
‘ A ‘hearing’ includes the delivery of judgment. The right is not a new one or one which is alien to the common law. Clause 40 of Magna Carta provides: ‘To no one will we . . Delay . . justice’.’
Arden LJ considered the standard of review on appeal against findings of fact in a seriously delayed judgment: ‘The function, however, of the court on hearing this appeal is not to impose sanctions or to investigate the reasons why the delay occurred. The function of this court on this appeal, which is principally brought against the judge’s findings of fact, is to consider whether any of those findings of fact should be set aside and a retrial ordered. Findings of fact are not automatically to be set aside because a judgment was seriously delayed. As in any appeal on fact, the court has to ask whether the judge was plainly wrong. This high test takes account of the fact that trial judges normally have a special advantage in fact-finding, derived from their having seen the witnesses give their evidence. However there is an additional test in the case of a seriously delayed judgment. If the reviewing court finds that the judge’s recollection of the evidence is at fault on any material point, then (unless the error could not be due to the delay in the delivery of judgment) it will order a retrial if, having regard to the diminished importance in those circumstances of the special advantage of the trial judge in the interpretation of evidence, it cannot be satisfied that the judge came to the right conclusion. This is the keystone of the additional standard of review on appeal against findings of fact in this situation. To go further would be likely to be unfair to the winning party. That party might have been the winning party even if judgment had not been delayed.’

Lord Neuberger MR, Arden, Longmore LJJ
[2011] EWCA Civ 455
European Convention on Human Rights 6, Magna Carta 40
England and Wales
CitedGoose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
CitedBoodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .
CitedCobham v Frett PC 18-Dec-2000
(British Virgin Islands) Two issues arose. First, what was the consequence of inordinate delay between a judge hearing a case and giving his decision, and secondly, how was the law of adverse possession to be applied in cases of interrupted or . .
CitedGardiner Fire Ltd v Jones Thd Manufacturing Ltd (Third Party) CA 20-Oct-1998
A delay of 22 months between a hearing and the handing down of a judgment is quite intolerable. Judges creating such delays will in future be liable to such steps as could properly be taken by those in authority over them. Mechanisms had been put in . .

Cited by:
CitedNuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice

Updated: 01 November 2021; Ref: scu.432921