The Dekagram: 4th August 2025

The Dekagram: 4^th August 2025

This week John Schmitt brings you a further reminder that judgments must be adequately reasoned, but that the responsibility for eliciting adequate reasoning rests (at least partly) on the parties’ representatives. It would seem that the Court of Appeal takes the view that not only should litigators be gracious losers, when they do lose they should give the judge not one but two opportunities to get his or her judgment right. Insult to injury, some may feel.

Inadequate Reasoning In Judgments: a Reminder, and a Note of Caution for Litigators

In GLAS SAS (London Branch) v European Topsoho SARL [2025] EWCA Civ 933, the Court of Appeal has given important guidance to practitioners (and judges) about the issue of inadequate reasoning in judgments and the need to address it contemporaneously.

The First Instance Decision

The first instance decision centred on a party that had been added as the fourth defendant (“D4”) in circumstances where certain conditions were imposed on it (regarding transfer of shares and payment into court). D4 challenged the conditions as well as the inadequate judicial reasoning for the imposition of the conditions.

The Dismissing of the Appeal

The Court of Appeal found no reason to set aside the first instance order but did find the judge had erred in failing to provide adequate reasoning. The judge in essence reached a sensible decision but without providing a detailed rationale; it is notable the hearing ran for under half its time estimate and the first instance ex tempore ruling invited parties to understand it “in the context of the discussion during the hearing itself. Elements of the reasoning can be gleaned from that discussion.”

The Guidance for Practitioners and Judges

The Court of Appeal emphasised that the parties, especially the losing party, should be left in no doubt as to why they have won or lost; there is a minimum level of reasoning that is required.

Lady Justice Falk proceeded to give summary advice on the core principles for judicial reasoning for case management decisions, stating that these points should come as no surprise to experienced judges, but they may assist those at earlier stages of their judicial careers:

1. A judgment or ruling given in an applications list such as the Friday Commercial Court list, or at a case management hearing where there may be a multiplicity of issues to address in a limited time, is unlikely to be, and need not be, a polished product like a reserved judgment.
2. What is required will depend on the context. However, summaries of background facts and uncontroversial legal principles may be omitted in appropriate cases, or at least significantly trimmed. If a judge is able to do so, preparation of notes in advance will assist him or her to include the minimum required to make the judgment understandable. If essential, cross-references to skeleton arguments or other documents can be made, although it is preferable for these to be “read in” to the transcript, or for the approved transcript to include the information referred to (see further below).
3. As Males LJ explained in Simetra, the best approach is to identify the issue or issues, refer to any relevant evidence (again by cross-reference if needed) and then give the core reasons for the judge’s conclusions. Again, the issues and relevant evidence may well be capable of being noted in advance. If the judge has formed a provisional view, it may also be possible to reflect that in a tentative draft, but that will of course require careful review in the light of oral argument. If necessary, the judge should rise (or send the parties out) to allow enough time for that review. This applies whatever the time pressure may be. Even 10 minutes might make all the difference. Alternatively, if necessary and provided that the judge is sure as to the outcome, a decision could be announced with reasons to follow. In other cases judgment might have to be reserved, however unpalatable that is.
4. As a rule of thumb, it will usually be more important in practice to focus on the reasons why the losing party’s case is being rejected rather than the (positive) attractions of the winning party’s case. That approach is not only transparently fair and should minimise the chance of an appeal being made, or at least permission to appeal being granted, but it also helps to ensure rigour. Accepting the winning party’s arguments “for the reasons they give” (or equivalent) will usually not suffice without saying something specific about the losing party’s case.
5. Importantly, counsel should immediately point out if they consider that reasoning is inadequate. It is regrettable that this was not done in this case. A failure to do so cannot prevent an appeal being made, but it is conduct that might be taken into account by the appellate court in determining the appropriate order for costs, since raising the issue might have resulted in an unnecessary appeal being avoided.
6. A judge also has scope to perfect a transcript of a judgment when he or she is asked to approve it. Ex post facto justifications are of course not appropriate, but amendments are possible to ensure that the approved transcript clearly conveys what the judge intended to say, in a way that is understandable both to the parties and to an appeal court. This is not limited to correcting obvious errors or infelicities. For example, the content of cross-references that have not been read into the transcript could be expanded, and reasoning can be clarified. The structure, or order in which text appears, can also be altered if required to improve clarity. If further reasoning was in the judge’s mind but was omitted in error, a post-script could be added explaining that.

Comment

It seems likely that the parties at first instance were aware they had been given a sparse, perhaps hurried judgment, and one that would open the door for D4 to argue it was not properly reasoned. The Court of Appeal deprecate the practice of a party challenging a decision in an opportunistic way without first giving the first instance judge (in the immediate aftermath of the judgment) the opportunity to provide fuller detail and to address why the losing party’s arguments were rejected. The hint from the Court of Appeal is that such opportunism could be punished in adverse costs orders at the appeal stage.

The final principle (at (f)) appears to give the first instance judge scope to “perfect” a judgment in a far-reaching way, to include conveying “what the judge intended to say” and “further reasoning” that was in the “judge’s mind but was omitted in error” by means of a post-script. This seems to give a judge an opportunity to provide much more comprehensive reasoning at the point a judgment is being challenged and to do so in written form in order to assist the appeal court. This might seem surprising and a generous further opportunity, but it must also be consistent with the overriding objective.

The tenor of the guidance in the Court of Appeal is to grasp issues with the reasoning of case management decisions at first instance, especially following a seemingly scant judgment, and to plug any gaps in rationale before the matter reaches the appeal stage. This would be to avoid what happened here: the appeal court leaving undisturbed the first instance decision but having to spend a day understanding why it had been made.

As my Maths teacher used to say, “don’t just write the answer: show your working!”.

About the Author

John Schmitt was called in 2013 and now specialises in complex personal injury work. He is also experienced in representing families at inquests in a clinical negligence context and has done so through the AvMA pro-bono inquest service. Most recently he has represented a family at a four day jury inquest at the conclusion of which the deceased’s employer was ordered to produce a Prevention of Future Deaths report. He is described by the Legal 500 as having a ‘lovely manner about him’ but being ‘as sharp as a tack’.