Friday Law Report: Non-disclosure caused no prejudice

11 December 1998 Parker v The Law Society Court of Appeal (Lord Woolf, Master of the Rolls, Lord Justice Hutchison and Lord Justice Tuckey) 4 December 1998
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The Independent Culture
THERE WAS no danger of prejudice to appellants by the practice of non-disclosure of bench memoranda prepared for members of the Court of Appeal.

The Court of Appeal allowed in part the appellant's appeal against a decision by the Solicitors' Disciplinary Tribunal that he should be struck off the Roll of Solicitors for conduct unbefitting a solicitor.

The appellant's appeal to the Divisional Court failed, and he applied for leave to appeal to the Court of Appeal. The court granted leave, and after the hearing of the application, the court associate handed back to the appellant bundles which had been used by the court at the hearing. Included with those bundles was the bench memorandum prepared by the judicial assistant to the court.

On the hearing of the appeal the appellant had added to the grounds of appeal on which leave had been granted a further ground, which alleged that he had been prejudiced by the non-disclosure of the bench memorandum used at the hearing of his application for leave to appeal.

Stephen Hockman QC and Mark Beard (the Bar Pro Bono Unit) for the appellant; Timothy Dutton QC (the Law Society) for the respondent.

Lord Woolf MR said that there was no danger that the present practice by the Court of Appeal, Civil Division, of not disclosing bench memoranda prepared for its use would prejudice an appellant or a would-be appellant.

The court had never intentionally disclosed a bench memorandum for the following reasons. First, disclosure would be inconsistent with the relationship between judicial assistants and members of the court, and would inhibit judicial assistants from expressing their opinions.

Secondly, it would result in unnecessary argument before the court as to whether the memorandum was accurate, or the opinion expressed was correct, when such memoranda were only used by the members of the court as an aide to their preparations; they regularly took a different view from that of the judicial assistants of the facts or as to the outcome of the appeal.

Thirdly, the court would in any event draw to the attention of the parties any matter which they were proposing to take into account of which the parties would not already be aware, as they did when their own research revealed information of that character.

Finally, it would be impractical to provide the parties with details of oral discussions between the judicial assistant and members of the court, and to provide only written communications could be misleading.

Whilst it was the practice in the Court of Appeal, Criminal Division to disclose case summaries, there were distinctions between the position on an application for leave to appeal in a criminal case and in a civil case, and between the position of lawyers employed on the staff of the criminal division of the court, who prepared the summaries, and that of judicial assistants to the members of the civil division of the court.

In the present case it was not without significance that while the appellant complained about the memorandum which had been prepared for his application for leave to appeal, leave to appeal had been given. The only prejudice which he suggested that he had sustained was that he had only been given leave to appeal on three specific points, whereas, but for the bench memorandum, he might have been given leave on wider grounds.

On the hearing of the appeal the court had in fact considered all the material put before it, and the only arguments which had any prospect of success were those which had been identified by the court granting leave to appeal.

With regard to those grounds, there was substance in the contention that there had been no evidence before the tribunal to justify the finding that the appellant had been in breach of an undertaking, and he was, accordingly, entitled to have that finding quashed.

Kate O'Hanlon