In a recent decision in the case of Frey v. Labrouche (2012) the Court of Appeal allowed an appeal by Defendants whose application for an order for striking out claims against them had been refused by a Judge, and did so principally on the ground that the Judge who had originally dealt with the matter did so without giving due consideration to oral arguments.
When considering the appeal, Lord Neuberger stated amongst other things, that where an application is brought to strike out the whole or part of a claim, the Judge before whom the application is listed has a duty to consider the application properly after having read the evidence and considered oral arguments from both parties. In particular, the Judge is bound to listen to oral arguments in support of the application unless he is satisfied by what he has read before coming into Court that the application should be granted, in which case he could call immediately on the parties to the application to persuade him otherwise (although this may not always be a wise course of action). However, and particularly where a Judge has the benefit of time to read all the papers prior to the Court hearing and to consider a full written argument on behalf of both parties, he may quite properly be able to dispose of the hearing of the application far more quickly than the parties and their legal advisors may have expected. For example, and although again it may be unwise to do so, a Judge could begin the hearing by saying that having read all the papers, his provisional view was the application should be rejected on various grounds although he could then give the parties an opportunity to change his mind through oral arguments, and if the Judge was not persuaded by such arguments, end the hearing by giving Judgment in order to save further and unnecessary time and costs from being incurred.
However, and what a Judge cannot properly do (as much he believes that he has fully read and understood all the documents and submissions that may be made to the Court) is to dismiss the application without giving all the parties a fair opportunity to make out their case by oral arguments.
It is common experience that a Judge may come into Court with a particular view as to the likely outcome of the hearing only to find himself of a very different view once he has heard oral arguments. It was for that reason, as well as the reason that “justice must always be seen to be done”, that parties must be given a fair opportunity to make out their cases orally. Even and after taking into account the submission of written arguments to the Court prior to the hearing, a Judge still must consider the oral argument of a party before he makes his decision.
If a party is of the opinion that a Judge has adopted an inappropriate procedural course in coming to a decision, that party should make clear to the Judge his objections to it as it is very rarely that a party will then be permitted to appeal a decision on a ground which was not open to him, but he did not take before the Judge. It should always be understood that the Judge, and not the Court of Appeal is the primary fact finder and the primary controller of procedure in Court. Accordingly, the Court of Appeal will usually be reluctant to interfere with a Judge’s finding of fact, exercise of discretion, or procedural and case management decisions. The Court of Appeal’s function is only to correct what it regards as mistakes made by the Judge and not make fresh decisions. Where the Judge has not had the opportunity of knowing that a decision is to be objected to by a party, it is hard to characterise the decision as one which can then be appealed against.
Finally, a party should be bold enough to stand up to a Judge who is proposing to take an inappropriate course of action (such as refusing to hear oral argument) before appealing, although where a Judge makes it clear that he is resolved on taking a certain course and that there is no prospect whatsoever of any party being able to dissuade him from that course, it is hard to see what the party can do other than to appeal against the Judge’s decision.
Whilst Judges are after all human, and are subject to many factors which may influence their decision, the ultimate question will always be who has the last word!