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Tuesday, 22 March 2011

Lord Neuberger MR on Open Justice

Published on Halsbury's Law Exchange here.

On 16 March, Lord Neuberger MR delivered the Judicial Studies Board Annual Lecture 2011, entitled “Open Justice Unbound?” The speech contained his usual mixture of high erudition and a strong sense of practical justice, and deserves wide dissemination.

This post will be confined to the first part of the speech, which dealt with the form of judgments. This is something on which I have been published recently with a former colleague, Alexander Horne, in the New Law Journal (16 December 2010, Vol 160, p1735). I am relieved to be able to report that the article's conclusions were substantially consistent with Lord Neuberger's speech, and therefore rather than engage in repetition I will simply offer some observations on his Lordship’s points.

There can be no arguing with the overarching goal of clarity, as a sort of CPR 1.1 for judgment writing. Lord Neuberger overstates the case, however, when he says that it is necessary for judgments to be clear not just to lawyers but non-lawyers as well. The fact is that law is a learned profession, just as with, for example, medicine. The only way that a paper on, say, new heart transplant techniques could be rendered intelligible would be if the reader had studied the subject — and was hence no longer a member of “the public” — or if the paper were simplified to the point where it was more or less completely unhelpful to a surgeon. The same goes for a large majority of judgments. For cases of public interest other courts could adopt the Supreme Court’s practice of issuing a separate press release.

I share Lord Neuberger’s concerns about the length of judgments, something which has increased almost inexorably over the past two decades. He is certainly correct about one of the reasons, namely that “in recent years, there has been ... a sustained and justified outcry at the inexorable volume, the tedious length, and the inept drafting of many of the Acts of Parliament that have found their way onto the statute book”. Few areas of law have been immune but the tax system must be a contender for the worst example.

That said, the case for shorter judgments can be overstated. It was once said that first instance judgments should ideally be “brief courteous and wrong”, which wasn’t to say that appellate judgments should be “long-winded, rude and right”, though there are many examples of both. Much depends on whether a case raises a point of general importance: if so, some general guidance will be appropriate and expected, as Lord Neuberger states at para 15.

Another problematic aspect is the desire of the court to do justice in the individual case, but at the same time in accordance with the law. Sometimes the twain simply will never meet, however much intellectual agility the judge deploys. Lord Neuberger’s warning here is sound: endless exceptions to general principles in order to engineer what a judge regards as a fair outcome leads to complexity and confusion, which in turn generates future injustice of its own. As he says, if hard cases make bad law, it is equally true that bad law makes hard cases. But the subject of legal reasoning is one filling many textbooks and no further elaboration will be attempted here.

Lord Neuberger’s conclusion is that some form of training in judgment writing would be appropriate. It is a suggestion that would have offended some of his predecessors (and perhaps a few of his contemporaries), but, as he points out, barristers all go through extensive advocacy training, and advocacy is just as case-specific and individualistic as judgment writing.

I do not think that there is any need to follow the practice of the European Court of Justice or the European Court of Human Rights in having a uniform structure for judgments, but at the same time Lord Neuberger is surely correct that it would be a useful exercise for the Judicial Studies Board to define some fundamental principles of good judgments.

One is the need clearly to separate holdings that are fact-specific, those which the judge considers of general application and those which are obiter. Another is condensing facts to an appropriate degree (see Jones v Jones [2011] All ER (D) 231 (Jan) for an unfortunate example of a first instance judge going wrong in this respect). Often this will depend on the judge’s experience – or that of counsel – in the applicable area of law, but not always. A third factor is the aforementioned issue of multiple appellate judgments (on which see the NLJ article, supra).

Any aspiring judge looking for guidance on how to write a judgment could learn from studying examples of Lord Brown’s incisiveness, the clarity of Lord Hoffmann, or, going back a generation, the ability of Lords Reid, Diplock or Wilberforce to issue clear and practical general guidance.

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