Robinson v Fernsby, Scott-Kilvert: CA 19 Dec 2003

The judge had drafted his judgment and sent the drafts to the parties for comment. He then received additional written representations from one party, from which he realised that he had made an error, and issued a corrected judgment which a different result.
Held: A judge who realised he had made an error before the judgment was perfected had a clear obligation to correct it. Under the Act there is an obligation to perform a two stage test. The judge had been correct to re-examine his draft judgment. A judge could correct an error.
May LJ said of the expression ‘exceptional circumstances’: ‘that expression by itself is no more than a relatively uninformative label. It is not profitable to debate what it means in isolation from the facts of a particular case’
Peter Gibson LJ said: ‘With one possible qualification it is in my judgment incontrovertible that until the order of a judge has been sealed he retains the ability to recall the order he has made even if he has given reasons for that order by a judgment handed down or orally delivered . . Such judicial tergiversation is in general not to be encouraged, but circumstances may arise in which it is necessary for the judge to have the courage to recall his order. If . . the judge realises that he has made an error, how can he be true to his judicial oath other than by correcting that error so long as it lies within his power to do so? No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as exceptional into some sort of criterion for what is required . . ‘
and ‘No doubt that will happen only in exceptional circumstances, but I have serious misgivings about elevating that correct description of the circumstances when that occurs as an exception into some sort of criteria for what is required for the recalling of an order before it is sealed.’


Lord Justice Peter Gibson , May LJ


[2003] EWCA Civ 1820, Times 20-Jan-2004, [2003] WTLR 529




Inheritance (Provision for Family and Dependents) Act 1975 1(1)


England and Wales


CitedPractice Statement (Supreme Court: Judgments) LCJ 23-Apr-1998
Sets out new arrangements under which judgments in the High Court and Court of Appeal are to be handed down. Copies available to parties first in order to spot need for corrections. . .
CitedPractice Statement (Supreme Court: Judgments) (No 2) LCJ 2-Dec-1998
Reserved judgments handed down should be marked as such when subject to revision, and could be copied and published freely and without charge once the embargo on copies delivered to parties had been lifted. . .
CitedStewart v Engel, BDO Stoy Hayward CA 17-May-2000
A judge may reopen a case even after he has delivered his final judgment. A judge invited counsel to amend his pleading to incorporate an improvement, but in the face of his repeated failure to take up the invitation, entered final judgment against . .

Cited by:

CitedDaniels v Thompson CA 18-Mar-2004
The executor brought an action against the solicitor who had advised his client in connection with the transfer of her house in which she was to continue to live, saying he should have advised her that the gift would not protect her from Inheritance . .
CitedGravgaard v Aldridge and Brownlee (A Firm) CA 9-Dec-2004
After the court had sent its draft judgment to the parties, counsel on each side had written to the court making fresh submissions.
Held: Contentious matters should only be allowed to be re-opened in very limited circumstances once a draft . .
CitedSecretary of State for Trade and Industry v Paulin ChD 13-May-2005
The director sought to appeal an order disqualifying him form acting as a company director.
Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
CitedHutchinson v Metropolitan Police Commissioner and Another QBD 27-Jul-2005
The claimant sought damages for assault by a probationary constable. The constable had been called to a drunken party for Sainsbury’s employees.
Held: The claimant had been assaulted. Miss Morgan had introduced herself as a police officer, had . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 11-Nov-2005
Ultraframe asked the judge to re-open his ‘in the round’ decision on costs.
Held: The decision questioned was not a draft, but a concluded judgment. The judge said that he had not made such a ‘palpable error’ in his order as to give him . .
CitedMohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
CitedBinyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .
CitedMcKeown v British Horseracing Authority Admn 12-Mar-2010
The judge had been asked to revise his draft judgment. The court set out the circumstances under which a draft judgment might be amended and why in this case he had rejected the request save as to clerical errors. . .
CitedGarland v Morris and Another ChD 11-Jan-2007
The claimant sought additional provision from her father’s estate. She said that the will failed to make reasonable provsion for her, bearing in mind her extreme financial needs. She was a single mother of three.
Held: The claim failed. . .
CitedRe L and B (Children) SC 20-Feb-2013
The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .
CitedTZ v General Medical Council Admn 17-Apr-2015
Appeal against decision of a Fitness to Practise Panel holding that the Appellant’s fitness to practise as a medical practitioner was impaired by reason of his misconduct. It directed that his name be erased from the Medical Register under section . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Litigation Practice

Updated: 12 April 2022; Ref: scu.188902