Conclusion
As this discussion shows, there are reasons for and against ex tempore judgments. Dr
Elms suggests an eminently sensible way to decide whether to give an ex tempore
judgment. A judge should assume in each case that they might need to give an ex
tempore judgment.
402
Having prepared in this way, a judge is then in a position to choose between two options.
They can give an expedited judgment in either of two forms as an ex tempore judgment,
or as a reserved judgment delivered a short time after the case finishes.
403
Alternatively,
they can reserve judgment for a reasonable time. At the conclusion of the hearing the
judge makes their decision as to the method of giving judgment by reference to a self
recommending criterion – having taken everything into account (including the need for a
speedy decision) would “an oral judgment serve the proper purposes of a judgment as
well as a written one would do.”
404
13.3Method
The art of writing an ex tempore judgment is really the art of preparation. There are
several simple propositions. First, be alert to the possibility that an ex tempore judgment
might be the best way to dispose of a matter. This should ordinarily be obvious from the
general or particular circumstances.
Second, obtain an outline of the contending versions of the facts. In some cases it may be
possible to have parties submit them. Ideally have the versions submitted in electronic
form to make writing of the judgment easier. When the versions are obtained,
amalgamated the two statements into one narrative showing both the agreed facts and the
disputed facts.
Third, take good notes during the case, ideally annotating the amalgamated statement of
facts. Fourth review the notes at the end of the day. If necessary, revise if a case is still
continuing or in a break.
Fifth, use the amalgamated statement of facts and the annotations to write the judgment.
Essentially these set out the agreed facts and the contested facts. This forms much of the
text of the judgment. The main thing still to do is to decide which of the competing
versions is proved.
402
Elms (2003) in Sheard 2003, p 87
403
Elms (2003) in Sheard 2003, p 88
404
Kitto (1992) p 791
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