Considers the repercussions faced by litigants when a court does not give reasons for its decisions as well as the most common reasons offered for not giving reasons.
I intend to discuss some of the more common problems encountered by litigants and lawyers in relation to court decisions. I have decided to approach this by setting out a variety of scenarios and giving my commentary after each one. Names have been omitted and events modified to protect the innocent and the guilty.
1. You are a shareholder and director of “the Company.” Your good friends, Mr. X and Mr. Y, are the other directors and shareholders. All of you have equal shares in the Company, i.e. 1/3 each.
2. Whenever shareholders or board of directors meetings are called, you should be given advance notice of such meetings. This is so that you can attend. It is your basic right as a shareholder and director.
3. Three years ago, you had a falling out with Mr. X and Mr. Y. You are in the minority. They the majority. Since then, Mr. X and Mr. Y have been running the Company without your involvement. In particular, they have called for and carried out many shareholder and board meetings without giving you any notice.
4. So, you knew nothing of those meetings until now when you got curious why the Company has been quiet for the past few years. When you checked with the company secretary, you were shocked to find out about all those meetings which you did not know about. And all the decisions were made at those meetings without your participation. Some of the decisions allowed the Company’s money to be used for the benefit of Mr. X’s and Mr. Y’s family.
5. After obtaining legal advice, you file a court application to wind-up the Company. Your main complaint is that you have been wrongly excluded from participating in the Company – no notice of meetings was given to you. One result of this is that the Company’s money was wrongly used for unrelated purposes.
6. In their defence, Mr. X and Mr. Y do not dispute that notice was not given. Instead, they raise a host of irrelevant issues.
7. The learned judge decides to dismiss your application. No reasons were given.
The above is a regrettably common situation – a person who thinks he has a good, solid case, loses it and he doesn’t know why. The judge is not required to give any reason (whether oral or written) when he delivers his decision. It is only when there is an appeal from his decision will he then be obligated to write his detailed reasons (known as “the grounds of judgment”).
“Write grounds only if appeal”
Is this right as a matter of policy? Surely, it must be the fundamental entitlement of every litigant to know why he won or lost. He has spent much time and money in pursuing the court application. It is an insult to his effort if reasons are not given.
One assumption underlying this policy is that if there is no appeal, it must mean that the parties are happy with the decision and the judge doesn’t need to elaborate further. However, this assumption is divorced from reality. Losing parties do not appeal for a host of reasons. For example, no more money to fund the litigation. Or the thing at stake is not worth the cost of an appeal.
“Assume Court adopted winning party’s arguments”
Some argue that even though no reasons were given, we can assume that the judge adopted the winning party’s arguments. This assumption is premised on another assumption – that the judge did not bring an independent mind to bear on the case. Which cannot be true all the time.
Also, what if the winning party’s arguments were weak, or did not deal with the losing party’s points? It is not a simple matter of choosing between arguments A or B. If a judge chooses A, he must explain why and why not B – what’s wrong with argument B? Why are the cases for argument B not applicable?
So, even if you apply this assumption, you are still left with questions as to what actually went on in the judge’s mind.
Perhaps the most important reason for requiring written grounds for all decisions is this – to make the judge account for and explain his decision. It is an important and necessary safeguard against arbitrary decision making.
As per Scenario 1, but with the following change – para 7 to read as follows:
7. The learned judge decides to dismiss your application. His reason for doing so is brief – he says you have failed to prove that the Company should be wound up.
This is another common occurrence – a brief oral “reason” that is really a conclusion. This often leaves unanswered how the conclusion was arrived at. It is as if no reason was given at all. It is like saying “Abu arrived in Kuala Lumpur” without explaining how he got there.
To boost public confidence in the judiciary, it is essential for detailed reasons to be given. And naturally this must be in writing.
The act of writing requires a judge to go through the case in detail, consider the points made by both parties and enter into a deeper level of understanding. It is important for the judge to keep an open mind at the start. There is a benefit for a judge to write first before he delivers his decision – writing is an intellectual exercise that moulds and shapes the thought process to arrive at a natural conclusion. The end of the journey may take the judge to a different destination than what he envisaged at the beginning.
This benefit is often lost if the process were reversed – i.e. decide first then write later. Having delivered the decision, the written reasons will be tailored to lead to that conclusion.
“No time to write for all cases”
There is a concern that the workload of judges would become unbearable if they have to write grounds for every decision.
It is true that if judges are required to write their reasons for every decision, their workload will increase. But that is in the short term. In the longer term, nothing will deter frivolous litigation more than well written detailed grounds, correctly applying the relevant legal principles. Every underlined word is significant.
Compare that with the present situation in scenario 2 – not knowing why you lost, you will feel highly dissatisfied and you will appeal. The absence of reasons in effect creates more cases, and therefore more workload, in the judicial system.
As per scenario 1, but with the addition of para 8:
8. You appeal against the decision. You request for the grounds of decision from the court. You receive the grounds 5 months later.
Receiving the grounds months after the decision was orally delivered is another common occurrence. There are 3 problems with this:
First, the grounds may not actually reflect the judge’s thought process at the time he delivered his decision. Months have passed since the decision. In between, the judge has dealt with hundreds of cases. How is he to now accurately pen down his thinking at the time he made the decision?
Under the law of evidence, documents made during an event are regarded as being more reliable to show what occurred in that event, as opposed to documents which are generated after the event. The former documents are known as “contemporaneous documents.” The longer the lapse of time between the document and the event, the less reliable the document.
Secondly, it is not difficult to imagine situations where a judge when writing his detailed grounds discovers an error in his decision which he gave earlier. But what can he do? He cannot reverse his own decision. The only avenue left is to shape his reasons to support that decision.
The key benefit of writing – intellectual journey leading towards a natural conclusion (see Scenario 2) – can only be reaped if one keeps an open mind. The benefit is lost where the destination is already fixed at the start.
Thirdly, it is also useful to compare the situation in the courts with the situation in arbitration. Generally speaking – in arbitration, the parties appoint a person to be the arbitrator. The parties will present their evidence and arguments to the arbitrator, similar to the way it is done before the courts except that there is less formality. Thereafter, the arbitrator – like a judge – will decide who wins. But unlike a judge, the arbitrator has to give his decision with full written reasons at the same time.
In the hierarchy of the justice system, judges are of course ranked higher than arbitrators. Judges are part of a public institution and they all have certain mandatory qualifications, as prescribed by the Federal Constitution. In contrast, arbitrators are privately appointed and they do not need to have any qualification at all; any person can be appointed so long as the disputing parties agree to it.
If arbitrators have to give full written reasons when they deliver their decisions, why not judges?
It is essential that detailed reasons be written first before a decision is delivered. When the decision is delivered, the reasons which led to the decision should be available immediately.
I move on to the remaining Scenarios demonstrate the subtler problems that are faced by litigants from time to time.
As per Scenario 1, but with the following changes:
6. In their defence, Mr. X and Mr. Y do not dispute that notice was not given. Instead, they argue that you have “waived” (i.e. forfeited) your right to complain about those meetings because you failed to complain for so many years.
7. Naturally, you rebut the above argument by pointing out that you could not have complained earlier because you did not know about those meetings. And you did not know because Mr. X and Mr. Y purposely did not tell you.
8. The learned judge decides to dismiss your application. In his detailed grounds, he finds that you have “waived” your right for the reason stated by Mr X and Mr Y. But he did not deal with your rebuttal argument per para 7 above.
Scenario 4 demonstrates why it is essential for a judge to deal with all the points raised. The process of touching on and considering each and every point shapes and moulds the final outcome – miss a point and the conclusion would be different.
As per scenario 4, but with the following changes:
7A. There are 2 lines of authorities on “waiver” – one in your favour, the other against.
8. The learned judge decides to dismiss your application. In his detailed grounds, he prefers the authorities that are against you. But he did not explain why.
Unfortunately, the reasoning is incomplete. It is not a simple matter of choosing one side’s argument over the other; the judge must explain his choice. The guiding principle must be that the reasons must explain fully why the judge decided the way he did.
To do the job properly and comprehensively is not easy. It is time consuming. Some cases may require more time, some less. One size does not fit all.
This then brings me to the current emphasis by the Chief Justice on speedy disposal of cases. Speed is a factor for justice to be carried out. But it is not the only factor. Another factor is that the decision must be arrived at after proper and comprehensive consideration of the law and evidence. This factor must be given more importance than speed. After all, what is the point of rushing a case to a hurried and ill considered result? This will not boost the public’s confidence in the judiciary.
Since the introduction of a new “tracking” system in selected courts this year to speed up cases, there has been many grouses from lawyers that decisions have been hurried without due consideration. It is now timely for the Chief Justice to undertake a qualitative assessment of the performance of the judges, instead of a merely quantitative one.
In this regard, I am heartened to read from his recent interview with the Bar Council on 19th November (found in the Bar Council website) that Key Performance Indicators (KPI; which prescribed a target number of cases to be disposed of per year) is not the only criterion for judicial promotion and the achievement of KPI cannot be at the expense of justice. It remains to be seen however whether this message will be effectively communicated and implemented.