Judgment Writing . Presentation By The H on. Dame Janice M. Pereira, Chief Justice For Magistrate’s Conference 26-28 August 2013. Introduction. Why is it so important to have a proper written judgment?
The Hon. Dame Janice M. Pereira,Chief Justice
For Magistrate’s Conference
26-28 August 2013
Why is it so important to have a proper written judgment?
Is there a set style for judgment writing?
(2) to explain your decision to the parties;
(4) to provide reasons for an appeal court to consider.
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT
TERRITORY OF THE VIRGIN ISLANDS
Ms. Minnie Mouse for the Claimant
Mr. Daffy Duck for the Defendant
2012: January 16
2013: May 9.
These contain the areas of law dealt with in the judgment and the main legislation or rules relied on.
Criminal Appeal – appellant not party to proceedings - jurisdiction of court of appeal on a forfeiture order made pursuant to the Drugs (Prevention of Misuse) Act.
It does 3 things:
“ If you should go to Virgin Gorda in the Territory of the Virgin Islands one day soon you may visit the area of the serene PondBay. There you may chance to espy a seemingly splendid villa with cascading pools and breathtaking views of the tranquil waters of the bay. However, all is not as it seems as this villa, designed by an award-winning American architect, is the bone of contention in this lawsuit. The contractor claimant, Yates Associates Ltd., ("Yates") claims $354,148.56 being sums allegedly due under a contract with the Defendant, Blue Sand Investments Ltd, ("Blue Sand") to build this villa. Blue Sand refutes that claim and counterclaims for sums in excess of 1.3 million dollars as damages for the costs of remedial works and loss of rental income on this palatial residence.”
(i) State the facts of the case i.e. tell the story!
(ii) State the legal position of the Claimant;
(iii) State the legal position of the Defendant;
(iv) Apply the law to the facts to state the court’s position with reasons. (to be dealt with later)
This basic structure of a judgment, modified to suit a particular situation, will ensure that you order your own thoughts in reaching a just, and indeed one might say, often inevitable conclusion.
“  In the foregoing premises, I would allow the appeal, set aside the judgment of the Industrial Court and make no award as to costs since no special circumstances arise to warrant it under section 10(2) of
the Industrial Court Act.”
“ The order that I would make then is as follows:
At the end of the judgment, the judicial officer should place his/her signature above the format below, on the right side of the page .
In some islands this is a statutory requirement;
“(2) The Magistrate shall also transmit to the Deputy Registrar of the Court of Appeal with the papers relating to such appeal a memorandum of the reasons for the decision.”
“After an appellant has served on the Magistrate a notice of his intention to appeal and entered into a recognizance or given security to prosecute an appeal, the Magistrate shall, within 10 days of the service of such notice of appeal, transmit to the Registrar of the Court of Appeal a copy of the proceedings and all papers relating to the appeal together with a concise memorandum of his reasons for decision.
Case: Hughes v Hughes (1993) 45 WIR 149
“The Magistrate shall record the reasons for the judgment in writing and sign at the time of pronouncing the judgment and within 14 days of the pronouncement of the judgment appealed against shall cause the reasons to be transmitted to the Registrar of the High Court and they shall be included in and form part of the record of appeal.”
Case: Graham & Another v The Police (2010) 79 WIR 288- Court of Appeal of The Eastern Caribbean States
“(3) The Magistrate shall also transmit with the copy of the proceedings a concise memorandum of the reasons for the judgement. Such memorandum shall be included in, and form part of, the record of the appeal.”
The Appellant shall, if so required by the Magistrate, within three days after the day on which he served notice of his intention to appeal, enter into a recognizance before the Magistrate with or without sureties, as the Magistrate may direct, conditioned to appear before the Court of Appeal and to try the appeal and to abide the judgment thereon of the Court of Appeal and to pay such costs as may be awarded by the said Court, or if the Magistrate thinks it expedient he may require the appellant, instead of entering into recognizances, to give such other security by payment of money into Court or otherwise as the Magistrate deems sufficient; and the Magistrate shall without delay transmit to the Registrar of the Court of Appeal all papers relating to such appeal together with a concise
memorandum of his reasons for his decision.
S.169 After an appellant has served on the magistrate a notice of his or her intention to appeal and entered into a recognisance or given security to prosecute such appeal, the magistrate shall within ten days of the service of the notice of appeal, transmit to the registrar of the Court of Appeal a copy of the proceedings and all papers relating to the appeal together with a concise memorandum of his or her reasons for decision.
“Every judgment in a summary trial, except as otherwise expressly provided by this Code or any other law, shall be written by the magistrate and shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed by such magistrate in open court at the time of pronouncing it”.
Case: Casanki et al v Commissioner of Police HRCAP 2010/022- Court of Appeal of The Eastern Caribbean States
NB: Casanki applied Aqui v PooranMaharaj (1981) 34 W.I.R 282 (Aqui was from the Court of Appeal of Trinidad & Tobago and it considered where statute did not expressly provide for a Magistrate to give reasons) & English v Emery Reimbold & Strick Ltd; DJ & C Withers (Farms) Ltd v Ambic Equipment Ltd; Verrechia (Trading as Freightmasters Commercials) v Commisioner of Police of Metropolis (2002) 3 All E.R 385 (CA)
No explicit statutory provision however, Section 722 (1) of the Criminal Code Cap 3.01 “When a party to a cause or matter in a district court has filed an appeal against the decision of the district court he or she shall, on making an application to the clerk of the court and on paying the prescribed fee obtain a copy of the proceedings in the case, including a copy of the written judgment, notes or memorandum of the reasons of the magistrate for the decision.
“ The appellant shall within seven days after the day on which he served notice of his intention to appeal, enter into a recognizance before a Magistrate with one or more sufficient sureties as the magistrate may direct conditioned to appear before the Court of Appeal and to prosecute the appeal and to appear before the Court of Appeal and to pay such costs as may be awarded by the said court, or if the Magistrate thinks it expedient the appellant may instead of payment of money into court or otherwise as the Magistrate deems sufficient, except in cases where a sentence imposed involves the payment of a fine, such recognizance or security shall be in a sum not less than the amount of the fine; and the Magistrate shall without delay transmit to the registrar of the Court of Appeal all papers relating to such appeal together with a concise memorandum of the reasons for his decision.”
“ Even where there is no such legislative provision in some jurisdictions; the requirement to give reasons is regarded as a ‘rule of law’. In Alexander v Williams, the court of appeal of Trinidad and Tobago, whilst recognisingthat there was no legislative provision mandating a Magistrate to give reasons for his decision, held that ‘it was a rule of law that in criminal proceedings a Magistrate must provide his reasons when the defendant had lodged an appeal against his decision”, and that furthermore, ‘in cases involving the liberty of the subject, the furnishing of reasons by a Magistrate in cases against which appeals have been lodged was an indispensable requirement of “due process”’. Bernard JA, at page 344 stated that “ the practice for so doing in matters of appeal has so grown up and been adhered to over the years and has become so rooted in our system of justice that, in my opinion, it can now be regarded as a rule of law.”
Per Lord Clyde
“The judgments … clearly recognise the fundamental importance of furnishing reasons particularly in circumstances where the deprivation of liberty is at stake. … It is sufficient to observe that without the statement of reasons it will usually be impossible to know whether the magistrate has misdirected himself on the law or misunderstood or misapplied the evidence. The absence of reasons at the least enables the appellant to argue from a strong position that there cannot have been a sound reason for the decision in issue.”
“21(2) If no written decision is given by the Judge at the time of giving judgment such Judge shall communicate his reasons for the judgment in writing to the Registrar of the court below and such reasons shall be included in the record.”
Challenges Regarding Reasons normally take 2 forms:
“the achievement of professionalism and excellence in the timely, effective and efficient access to, and administration of a cohesive, independent and accountable system of justice for the benefit of its Member States.”