Judgment Writing - Eastern Caribbean Supreme Court

Report
Presentation By
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?
◦ It tells the world the details and rational for the
judge’s findings of fact and provides a critical
analysis of the law using precedent.
Is there a set style for judgment writing?
◦ Although every judge will have his/her own style of
writing there are essential requirements which
ought to be followed.



1. Oral Judgments
2. Written judgments
It is within a judge’s discretion to decide
when to write and, if so, how expansively to
write.
 If your ideas are clear then you will be able to express them
clearly.
 This will enable your writing to be concise, clear, interesting and
accessible.
 This will make your account and rationale accurate.
(2) to explain your decision to the parties;

(3) to communicate the reasons for the decision to
the public; and
(4) to provide reasons for an appeal court to
consider.

Who are judgments important to
and why?
◦ They are important to litigants. Needed to
understand how the court has dealt with
their case and reached its decision.
◦ They are important to the wider public.
Needed to see that justice has been done
and the rational for it.
◦ They are important to other judges,
lawyers and students and are used as
precedent.
◦ Important to legislators and governments.
While they make the law the courts say
what is understood and how it is to be
applied.

What is the issue for determination?
◦ Ensure that you have a clear understanding
of the issues for determination.
◦ To do so you must look for the
determinative issue.
◦ Once identified, maintain focus on this.
◦ Don’t get side tracked with irrelevant details.

The Beginning
1.
2.

The Opening
1.
2.

Structure of Analysis
Language & Style
The Conclusion
1.

Who did what to whom
Set out Issues for determination
The Body
1.
2.

Heading
Catch Phrases
The Order
The Closing
1.
Signature
EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT
TERRITORY OF THE VIRGIN ISLANDS
BVIMCRAP2012/0029
BETWEEN:
CHARLIE BROWN.
Claimant
and
SCOOBY DOO
Defendant
Appearances:
Ms. Minnie Mouse for the Claimant
Mr. Daffy Duck for the Defendant
____________________________________
2012: January 16
2013: May 9.
____________________________________
Catch Phrases
These contain the areas of law dealt with in the
judgment and the main legislation or rules relied
on.



Get into the practice of preparing catch phrases
for your judgments.
These will help others search quicker for a
particular area which a judge may have dealt
with.
Since you are the author of the judgment you will
be in the best position to identify these.

David Pilgrim v PC 24 Luncheon
SLUMCRAP2011/0021
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.

An effective opening of a judgment gives a
helicopter view i.e. a brief synopsis of the
facts which are needed to understand the
issues that follow.
It does 3 things:
1.
It tells WHO (Allegedly) did WHAT to WHOM
(Or who’s Arguing about what) before
anyone instituted court proceedings.
“[1]
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 Pond Bay. 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.”

It sets out the issues to be decided in the order
which they should be decided.
 “[2] The main issues for determination are: 1)whether Yates is
entitled to recover from Blue Sand the sum of $260,837.38
in respect of Certificate No. 13 for work done under the
contract or on a quantum meruit basis for work done ; 2)
whether Yates is entitled to be paid $98,311.20 for the
retention monies; 3) whether Blue Sand is entitled to set
off against any sums found to be due and owing to Yates
monies allegedly overpaid to Yates ($163,627.76) under
Certificate No. 13; 4) whether Yates is liable in damages to
Blue Sand for the sum of $1,104,747.37 for the costs of
remedying defective construction works, 5) whether Yates
is liable to Blue Sand for loss of rental income of
$90,160.00, and 6) whether interest at a commercial rate
is payable on any sum found to be due and owing.

It omits details that have no relevance to any of
the issues at that time. e.g. names, dates,
procedural history, citation of laws or
precedents.
 In this case the opening didn’t state:
1. The full names of the parties
2. The date the contract was made,
3. The specifics of the contract,
4. The laws which are applicable,
5. Any further details of the transaction.
Basic Structure of analysis –
(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)

The above should be done making reference to the
evidence, both oral and documentary.

The Logic
 One side will allege certain facts in the context of a
controlling law, or principle, or standard, and the other
side will either dispute the facts, or argue that the
wrong law has been cited, or that the right law been
misinterpreted.
 When several issues are involved, each must be
resolved with the same logic: certain facts considered
in the context of a particular law, lead to an ineluctable
conclusion.
 Findings on each of the points should be recorded
in such a manner that they remain cohesive and
linked to each other.
 F for facts;
L for law;
 A for application, and

 C for conclusion.
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.





Avoid the use of clichés.
Use the active voice rather than the passive.
Be particular rather than vague.
Avoid emotive language.
Avoid long sentences.



Use neutral language.
Try not to use language common jargon.
Use simple and direct prose rather than
abstruse wording.




Try to make it interesting.
Be precise and to the point.
Be coherent.
Use footnotes where necessary to avoid
clutter.




Avoid putting information about the History of the case or the
evidence heard that would distract the readers.
Only details relevant to the analysis should be included. Omit
unnecessary facts
Read over to avoid obvious grammatical errors. Such errors
will make others think less of your work.
Avoiding quoting a long list of authorities which make the
same point. Use the landmark decisions and make reference
to the others in footnotes.



The Order should be stated in the conclusion .
This would include:
◦ Whether relief is granted and in what terms;
◦ Quantum;
◦ Costs.
This part of the judgment should be stated in clear
terms, leaving no scope for ambiguity. It should
indicate exactly what the Court requires each party
to do and how the decision should be executed.
“ [29] 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.”

Or alternatively the Order can be listed as
follows:
“[38] The order that I would make then is as follows:
 1. The appeal is allowed and the judgment and order of
the trial judge are set aside.
 2. Unless the parties otherwise agree, DCG Properties
Limited shall pay to White Construction Company
Limited prescribed costs in the High Court and twothirds of those costs in these appeal proceedings in
accordance with rule 65.13 of CPR 2000.”
SIGNATURE:
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
.

Karyn
Peter
Magistrate
 Eagil
Trust Co v Pigott-Brown
[1985] 3 All ER 119

CA held that a judge must give reasons for
his/her decision, although these reasons
need not be elaborate and the particularity
required will vary according to the
circumstances of the case. It is sufficient if
what the judge says shows the parties and, if
need be, the Court of Appeal, the basis on
which he/she has acted.
 English
v Emery Reinhold &
Strike Ltd [2002] 1 WLR 2409
◦ “[16]
We would put the matter at its
simplest by saying that justice will
not be done if it is not apparent to
the parties why one has won and
the other has lost.”
In some islands this is a statutory requirement ;

Antigua and Barbuda; Section 172 (2) Magistrate’s Code of Procedure
Act. Cap 255
“(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.”

Anguilla; Section 200 Magistrate’s Code of Procedure Act
“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

Dominica;
4.20
Section 146 (1) Magistrates Code of Procedure, Cap.
“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

Grenada; Section 15 (3) Magistrates’ Judgments (Appeals) Act, Cap 178
“(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.”

Montserrat; Section 112 (1) Magistrate’s Court Act, Cap 2:02
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.

St Kitts and Nevis; Section 169 of the Magistrate Code of Procedure Act,
Cap 3.17
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.

St Vincent and the Grenadines; Section 109 (3)Criminal Procedure Code
“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 Pooran Maharaj (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)


St. Lucia; Section 722 (1) of the Criminal Code Cap 3.01
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.

Territory of the Virgin Islands; Section 160 Magistrate’s Code of
Procedure Cap 44
“ 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.”
SHANE GRAHAM, RAY JNO. BAPTISTE v THE POLICE;
DOM MCRAP 2010/009
“[13] 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 recognising that
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.”

Forbes v Chandrabhan Maharaj (1998) 52 WIR
487 (UKPC)
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.”

Court of Appeal Rules
“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:


(i) where a Magistrate has provided no
reasons at all or;
(ii) where the reasons given are inadequate
and may require more detailed analysis.


SHANE GRAHAM, RAY JNO. BAPTISTE v THE POLICE; DOM
MCRAP 2010/009
“[16]
The Azille, Hamilton, and Daniel appeals all involve
considerable conflicts on the evidence. In Azille and Daniel, no
reasons whatsoever have been provided. In the case of Hamilton,
the Magistrate provided in her ‘reasons for decision’ reasons as
to why she proceeded to try the case in the absence of the
defendant’s counsel but I agree with counsel that no reason has
been provided showing the basis on which she arrived at her
decision to convict. That, to my mind is tantamount to failing to
provide a reason for her decision. In the absence of reasons it
may reasonably be concluded that no sound basis for the
decision exists. Further, bearing in mind the observations of
Lord Clyde in Forbes, this court would be hard put in seeking to
resolve the conflicts on the evidence in particular since matters
of credibility come into sharp focus. This quandary, in my view,
leads to the ineluctable result that the convictions and sentences
must be quashed and new trials ordered.”

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



Casanki Quow v Commissioner of Police; SVG MCRAP
2010/022
Aqui v Pooran Maharaj; (1981) 34 W.I.R. 282.
Verrechia (Trading as Freightmasters Commercials) v
Commisioner of Police of Metropolis (2002) 3 All E.R 385
(CA)
Graham & Another v The Police (2010) 79 WIR 288
Cedeno v Logan (2000) 58 WIR 411
Hughes v Hughes (1993) 45 WIR 149
Flannery & Flannery v Halifax Estate Agencies Limited
[2000] 1 W.L.R. 377
See The Caribbean Civil Court Practice 2011 Note 31.16, pp.
399-400 “The duty to give reasons”
Donald Frederick v Choo Loi Poi et al; GRENADA HCVAP
2012/005



A judgment should be delivered
at the earliest possible time.
Code of Ethics Canon 3, Commentary
states:
v.
Prompt disposition of the
court’s business requires a judge
to devote adequate time to judicial
duties, to be punctual in attending
court
and
expeditious
in
determining
matters
under
submission, and to insist that court
officials, litigants and their lawyers
cooperate with the judge to that
end. Reserved judgments should
be delivered within three months,
or such longer time as the
circumstances
may
reasonably
require.

Always remember the vision &
mission statement of the
court.
“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.”

“access to a system of justice that is
accountable and independent, and
administered by officers in a prompt, fair,
efficient and effective manner.”

There are no exhaustive guidelines for writing
judgments but it is my hope that those
provided above will prove useful as you
discharge your judicial functions.

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