Sneyd, R (on the application of) v Director of Public Prosecutions

A judge may withdraw a draft judgment where the case raises important issues which ought to be considered by a divisional court. The decision whether to permit reargument before such a court is discretionary, with the general importance of the issue being a crucial consideration. Where that course is justified, the draft judgment may be withdrawn, withheld from publication and excluded from further reference without permission. The case may then be reheard on a clean procedural basis before a differently constituted court.

The claimant challenged a decision of the defendant concerning the application of the line of authority beginning with Owen v Chesters, reported at [1985] RTR 191. Mr Justice Walker had prepared a draft judgment, which was due to be formally delivered. After receiving it, the claimant sought further oral argument before a two-judge divisional court.

The parties accepted that the judge had jurisdiction to withdraw the draft judgment. The issues were whether the case should be reargued before a divisional court, whether the draft judgment should be withdrawn and withheld from publication, and what directions should govern the rehearing.

1. The application for the matter to be reargued before a divisional court was granted. The judge had a discretion, and the general importance of the issue was a crucial consideration. The issues arising from the Owen v Chesters line of authority were sufficiently important to justify consideration by a divisional court.

2. The draft judgment was withdrawn. It was not to be published, and its contents were not to be referred to without the permission of the court. The judge noted that the claimant had not sought a divisional court before the earlier oral argument, but that omission did not prevent the later order once the importance of the issue had become apparent.

3. Because the issue was significant, the claimant was permitted to reargue the entire case, subject to deciding whether to concede any other issues. The judge would not sit as a member of the divisional court hearing the rehearing.

4. The parties were directed to proceed on a clean slate. The claimant was to file a replacement skeleton argument, followed by the defendant’s response, the claimant’s reply and a jointly prepared supplemental bundle of authorities. Costs were reserved, with provision for detailed assessment of the claimant’s publicly funded costs if necessary.

The judgment records that oral argument had taken place on 26 April 2005 and that the judge had prepared a draft judgment for formal delivery. The case was not finally determined on its substantive issues. It was directed to be reargued before a divisional court, with Mr Justice Walker excluded from that court.