Walsh v Walsh

JudgeMr. Justice Richard Humphreys
Judgment Date02 February 2017
Neutral Citation[2017] IEHC 181
CourtHigh Court
Docket Number[2013 No. 13066P]
Date02 February 2017

[2017] IEHC 181


Humphreys J.

[2013 No. 13066P]



Gaming – National Lottery Act 1986 – Syndicate – Pre-existing Contractual Arrangement – Sole Purchaser and Sole Owner – Equity & Trusts – Ex tempore Decision

Facts: The plaintiff claimed a share in the winnings of the lottery, contending that the plaintiff and other signatories constituted a syndicate. The plaintiff argued that by signing the claim form, the defendant as well as the deceased had acknowledged the plaintiff's co-ownership of the winnings of the ticket. The plaintiff claimed that the facts had given rise to a constructive trust. The defendant claimed that the plaintiff had already been conveyed a property in lieu of the proceeds of the winnings.

Mr. Justice Richard Humphreys held that the plaintiff would be entitled to the claim. The Court dismissed the counterclaim. The Court agreed that the property in question had been an unconditional gift to the plaintiff. The Court observed that the facts of the case had given rise to a constructive trust, as the defendant held the winnings in trust for all the members to the extent of their ownership. The Court accepted that based on the admitted evidence, the signature on the ticket conferred joint ownership.

EX TEMPORE JUDGMENT of Mr. Justice Richard Humphreys delivered on the 2nd day of February, 2017

I would like to thank senior and junior counsel and solicitors on both sides for their assistance. All the lawyers performed their task with considerable skill and gave me great assistance in what was a difficult case.

General comments regarding ex tempore judgments

I want to begin by making some brief comments about ex tempore judgments. A first point to be stressed is that there a number of decisions of appellate courts in other jurisdictions favouring the giving of ex tempore decisions. The New South Wales Court of Appeal in Hadid v. Redpath [2001] N.S.W.C.A. 416, at para. 45, per Heydon J.A., urged judges to adopt a ' routine practice' of delivering unreserved judgments: ' It is a technique with which famous names can be associated.'


Likewise, in Shirt v. Shirt [2012] EWCA Civ. 1029, at para. 35, Lord Phillips M.R. stated; ' As far as practicality is concerned, if the law is too constraining on judges improving their ex tempore judgments, then they will be loath to give ex tempore judgments. The delay caused by reserved judgments, and the extra time required from judges to prepare reserved judgments, are such that we should not discourage judges from giving ex tempore judgments. Once one accepts that it is open to a judge to amplify his judgment in this way, if he gives the judgment ex tempore, it seems to me very difficult to avoid the conclusion that, if a judge chooses to give oral judgment some time after the hearing, he should have the similar opportunity to amplify and improve the judgment when he receives it back in transcript form.'


This leads on to the second, related, point that there is considerable recognition of the proposition that an approved note of an ex tempore judgment is not to be equated with a note of a charge to a jury commanding stenographic exactitude. Such an approved note may develop and revise the verbatim transcript, and may ' amplify and improve the judgment' in Lord Phillips M.R.'s phrase, including by way of giving fuller or clearer reasons for the result arrived at.


Kirby J. stated, in ' Ex tempore judgments – reasons on the run' (1995) 25 Western Australian Law Review 213 at p 229, that ' it is always possible, and entirely proper, for a judicial officer to revise ex tempore reasons, even extensively, without altering their substance or the orders which they sustain.'


Lord Neuberger, in a speech to annual conference of Supreme Court of New South Wales, 'Sausages and the judicial process, the limits of transparency' 1st August 2014, at para. 23, said that '[o]f course, one of the secrets of the ex tempore judgment, at least in England, is that the judge gets the opportunity to 'approve' the transcript of the judgment before it goes to the parties. I use inverted commas because, while some judges just improve the punctuation and the syntax, many judges use the opportunity to effect a fairly comprehensive rewriting. I have rewritten sentences even paragraphs. I have transposed paragraphs or even whole sections. I have even deleted sentences or paragraphs – sometimes because I simply could not understand what I had been trying to say. Once I added a paragraph because a brilliant new reason had occurred to me justifying my decision. In due course my decision was overturned and the Court of Appeal said that the new point was a particularly bad one – showing that cheats do not prosper. If I was going to add a point, I should have made it clear that it was a piece of esprit de l'escalier.'


Similarly, it was stated by McMurdo P., that '[e]x-temps are not like summing-ups or final directions to juries where every word said to the jury must be accurately recorded. You can revise ex-temps as long as the changes do not do too much violence to the meaning of what was said in court: 'From Ex-Temps To Treatises; How Leading Judges Write', Judicial Conference Of Australia Colloquium, 8th October 2016, at p. 2.


A third point to be emphasised in relation to ex tempore decisions is that while there are some advantages in terms of speed and immediacy, there are some ways in which the judgment so produced will differ from a reserved decision. For example, the immediate context of the ex tempore removes the necessity to recite a great deal of detail, particularly regarding matters that are not fundamental, and the need to recite facts not in dispute, because the parties present in court are immediately aware of those matters. Reasons may also be more summary than in a reserved judgment, sometimes severely more so. Kitto J. has stated that ' The most common case of an insufficiently disciplined judgment is one which recites the facts in a degree of pedestrian detail that scorns to discriminate between those that really bear on the problem, those that may interest a story-lover but not one possessing the lawyer's love of relevance, and those that are not even interesting but just happen to be there.' ('Why Write Judgments' (1992) 66 Australian Law Journal 787, p 792).


Munby L.J. in In re A. and L. (Children) [2011] EWCA Civ. 1611, at para. 35, stated ' I should add that there is no obligation for a judge to go on and give, as it were, reasons for his reasons' As Kirby J. has said, ' the findings of fact need not be lengthy. They can be confined to the barest outline' ((1995) 25 Western Australian Law Review 213 at p 226). Indeed there has been some comment in Australia to the effect that appellate courts make allowances for the inherent limitations of ex tempore decisions at first instance.


A fourth point in relation to ex tempore decisions is there are a number of authorities, particularly Eagle Trust Company Ltd v Pigott-Brown [1985] 3 All E.R. 119 and English v. Emery [2002] EWCA Civ 605, to the effect that it is the issues that are of importance to the judge that need to be specified rather than all of the issues identified by the parties. In Eagle Trust Co Ltd, at p. 122, Griffiths L.J. stated that reasons ' need not be elaborate. I cannot stress too strongly that there is no duty on a judge, in giving his reasons, to deal with every argument presented by counsel in support of his case. It is sufficient if what he says shows the parties and, if need be, the Court of Appeal the basis on which he has acted.'


It was stated at para. 19 of English v Emery that ' this does not mean that every factor which weighed with the judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the judge's conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the judge to identify and record those matters which were critical to his decision.'


Munby L.J. in A. and L. said at para. 43, ' The fact that [the judge] did not deal in his judgment with every matter to which [counsel] draws attention does not of itself invalidate either his reasoning or his conclusions.' That is in the context of authority to the effect that there is a ' huge virtue in brevity of judgment', as Thorpe L.J. put it in Re B (Appeal: Lack of reasons) [2003] ECA Civ 881.


There is no obligation to deal with every point made, but having said that it is often good practice to identify what the parties say the issues are; and hence I requested the parties in this case to prepare an issue paper, and I am grateful to them for their assistance in that process (albeit that they could not agree on an issue paper and produced competing versions) and in their written and oral submissions in identifying the elements of the case on which they place reliance.


While in some cases reasons should be expressly stated (see O'Mahony v Ballagh [2002] 2 I.R. 410), in other cases they may be implicit. The decision of Charleton J. in Lyndon v. Collins [2007] IEHC 487 (Unreported, High Court, 21st January, 2007) (cited in Foley v. Murphy [2007] IEHC 232 [2008] 1 I.R. 619) is illustrative of this point. Here, a District Court Judge ruled that he was ' satisfied that the State has proved its case', without providing further reasons for this decision. Charleton J. was satisfied that such a reason was lawful because it was ' clearly implied in what the learned district judge said that she was convicting the accused because of the fact that she completely rejected his testimony and accepted instead the testimony of the prosecution' (at...

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