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Missing record of proceedings
Bit of a strange one here for me and wonder what other’s thoughts are.
Client attended PIP hearing that was being recorded digitally, but it appears that the Judge noticed part way through that the recorder had not been switched on. She advises that she will add her written notes to the bundle and these will form part of the ROP. In any event, the appeal was refused, so we requested the SOR and ROP.
What we received was the SOR and the digital ROP, but lo and behold no hand written notes. On seeking permission to appeal on another point, we also noted that these notes had still not been included - clearly there was no record of relevant evidence anywhere to be found. DTJ refused permission but the UT has granted it. The Upper Tribunal Judge has now directed production of these documents - what has been supplied are three pages of handwritten notes, obviously on A4 lined paper, unsigned and with questionable handwriting.
Am I being overly suspicious that this document could have been produced by anyone at any time? Why wouldn’t HMCTS produce these when asked for the ROP?
what has been supplied are three pages of handwritten notes, obviously on A4 lined paper, unsigned and with questionable handwriting.
Am I being overly suspicious that this document could have been produced by anyone at any time? Why wouldn’t HMCTS produce these when asked for the ROP?
well she probably wasn’t taking anything like a full note until the point she realised the recording device wasn’t recording and had that sorted. and it may be that she had in fact been taking her notes on said A4 lined paper and then possibly left hem with the file but no one realised what they were? as for questionable handwriting - this is what happens when you’re trying to write quickly and get everything down, and are trying to listen etc at the same time. which is why i generally am armed with my tablet and portable bluetooth keyboard…...and it can still go petong when i’m participating in the discussion/hearing/whatever i’m trying to take a note of….
so no, i wouldn’t necessarily be suspicious given the circumstances you describe.
It strikes me that being a tribunal judge involves writing by hand for around 6 hours per day with some intensity. A bit like doing 2 exams per day until you retire, die or become arthritic to the point of no return. My already simplistic handwriting would fall to bits under that kind of pressure.
Bit of a basic lack of competence though to just assume that because a recording was being made no handwritten notes were necessary.
I certainly appreciate how bad handwriting can get over the course of two full sessions, I think it is that it doesn’t LOOK like this Judge’s handwriting at all (incidentally, it was the first case of the day also) although a sprain or strain’s not outwith the bounds of possibility. I wasn’t expecting a verbatim account either, but equally it’s clear the Judge didn’t note how audibly distressed the claimant was by that point in the hearing.
My bugbear here is that I’m not convinced that the papers were necessarily unnoticed given the gap in the page numbers and the fact the UT Judge had to order their production, surely if they are numbered and in the bundle, they get sent out and not withheld as part of the SOR/ROP request being processed. It shouldn’t require a UT direction to produce “to both parties.” I seem to recall authority for the point that a judge’s notebook is not part of the ROP and its production cannot be ordered
My instinct is that you may just have to live with your bugbear depending on how central it is to the establishment of an error of law, which is ultimately the only thing that currently matters.
Handwriting and the extent of notes taken when you are the sole source of the record of proceedings are likely to look different when you think matters are being recorded and you can jot down some additional stuff as and when.
It’s easy enough to see where this goes wrong on the day though. Judge may not remember to add their notes to the bundle by giving them to the clerk; clerk probably won’t ask as it’s not part of the normal routine and at the end of a busy day, assuming they are in the possession of the clerk at all (and I suspect not) then it’s unlikely anyone will remember the detail of what was supposed to happen. Add into that that once back at HQ it’s unlikely the same clerk would then retain ownership. Anyone else picking it up would understandably think those notes really ought to not be there. It definitely points more to cock up than conspiracy to me.
There is another aspect to this. I’ve also had a set of notes produced (edited to remove the word “were”) which to me bore no resemblance to that FTJs handwriting. After the usual blanking the TS told me what had really happened only when I produced another ROP from the same FTJ in different handwriting and threatened to complain.
Most FTJs make their own notes and type up their own statements. Some dictate their SORs and pass to clerks to get typed up. In my case the FTJ had dictated their SOR and passed a tape to be transcribed. The transcription was first done by hand and then passed to a typist (yeah, I know). It never gets typed and someone freaks out and sends it out as is when the matter becomes a complaint. It contains the SOR as dictated but it’s in different handwriting.
[ Edited: 24 Jul 2017 at 09:17 am by Mike Hughes ]In my case the FTJ had dictated their SOR and passed a tape to be transcribed. The transcription was first done by hand and then passed to a typist (yeah, I know).
The mind boggles why anyone would do that…...
or don’t tell me - HMCTS doesn’t have the equipment for an audiotypist to transcribe a tape? (nothing would surprise me….)
In my case the FTJ had dictated their SOR and passed a tape to be transcribed. The transcription was first done by hand and then passed to a typist (yeah, I know).
The mind boggles why anyone would do that…...
or don’t tell me - HMCTS doesn’t have the equipment for an audiotypist to transcribe a tape? (nothing would surprise me….)
I attempted to have the “why” conversation. The gist of the informal response given was that some judges simply expect someone else to type up what they’ve done because that’s what they’re used to. On this occasion that had combined with another one of those magical periods where HMCTS (the organisation that loves telling us how we should organise ourselves) had screwed up their calculations; disposed of a whole pile of clerks and then found they needed them after all. The departees of course includes most of the transcribers and the remaining ones with those skills were out in the field tending to their flock.