We have today had handed down the first two substantive judgments of the Supreme Court, albeit in cases heard by the House of Lords, in R (L) v Commissioner of the Police of the Metropolis and Re Sigma Finance Corporation & In re the Insolvency Act 1986 (Conjoined Appeals)As the first substantive judgments of the new Court, they will perhaps receive greater scrutiny than normal.  There are nonetheless inevitably, leaving aside their legal merit, a number of notable features about these judgments. 

First of all the formatting is somewhat inconsistent as regards the text width and the page numbering.  In Sigma, the judges concurring with a judgment are noted (curiously, Lords Collins, Hope and Scott) concurred with the judgment of Lord Mance but only Lords Collins and Hope appeared to have concurred with the judgment of Lord Collins – it is not clear what if anything in this short judgment Lord Scott found objectionable).  In L, this is not recorded.  It would be helpful if in future a consistent format for judgments can be settled upon.

Secondly, a new and welcome innovation are the press summaries of the cases.  These seem to be of a very high quality.

Thirdly, is is notable that although both Sigma and L bear the imprimateur of the Supreme Court, L was heard by Lord Neuberger who is not and has never beeen a member of the Supreme Court (despite being a law lord), having taken up his new role as Master of the Rolls prior to its formal establishment.

Fourthly, and more significantly, we note that L was unanimous and Sigma was held four to one.  One dissenting opinion among ten is lower than average.  There has been some comment that the Court should seek to move towards unanimity in the interests of legal certainty and to avoid the sense that law is an arbitrary result to the judges chosen to hear the case.  On this small sample, it is too soon to tell whether this may happen, but we may be seeing a step in this direction.

In this regard, we are indebted to reader Peter Mark Wilding who emails us to say:

“The announcement today of two new cases has offered a mixed approach to the style in which judgments are delivered.  The most promising approach was In Re Sigma Finance Corporation (in administrative receivership) and In Re The Insolvency Act 1986 (Conjoined Appeals) [2009] UKSC 2. Thankfully it had an “opinion of the Court” approach that is dominant in American cases. Most cases before the U.S. Supreme Court are well disposed of in opinions of the Court and much clarity is brought to the reading and understanding of the law. This no doubt means deciding on perhaps a narrower basis; but this is entirely proper for the role of judges, and it avoids injecting ambiguity and uncertainty into the law, by having to determine on what all agree with in seriatim opinions. After all, concurring and dissenting opinions can always be filed, thus maintaining judicial independence of the individual judge. In the U.S. such a thing happens all the time, however, it is rare that an opinion of the Court is not achievable.

This approach is very laudable, but I would argue that it should go a little further: that the justices note at the start that it is the opinion of the Court, and concurrences and dissents are likewise immediately noticeable. The U.S. Supreme Court certainly has this as the first line preceding a justice’s opinion. The phraseology in this judgment is adequate (e.g., Lord Mance (with whom Lords Hope, Scott and Collins concur)), but no announcement that this is the opinion of the Court was to be seen. And Lord Collins’ judgment was a majority opinion too. This adds nothing but confusion. Proper labelling and planning by the justices could prevent confusion. A concurring opinion could say “Justice” or “Lord Collins concurring”. So one would immediately know he agrees and joined the majority but have some additional comments. Similarly, if he agreed with the outcome but his analysis differed and cannot join the majority opinion, the reports would state “Lord, concurring in judgment”. Thus in IBP, Inc. v. Alvarez, 546 U.S. 21 (2005) Justice Stevens wrote for a unanimous Court where nobody had additional comments. And when others wanted to speak, when Justice Thomas authored a unanimous opinion concerning the powers of injunction related to patents, Chief Justice Roberts, and Justice Kennedy, each wrote concurring opinions without any problem despite joining the unanimous opinion (eBay Inc., et al., v. MercExchange, LLC., 547 U.S. 388 (2006).
The most disappointing approach today was that of R (on the application of L) (FC) (Appellant) v Commissioner of the Police of the Metropolis) (Respondent) [2009] UKSC 3, which has carried on the seriatim approach to judgments. Seriatim opinions makes even simple cases diffuse; as one has to read each opinion and discover who agreed with what. Moreover, who dissented and concurred was not readily evident. This hardly seems necessary; examining the U.S. Supreme Court’s experience illustrates this. Only rare occasions have seen splinters. In the seminal case New York Times Co. v. United States, 403 U.S. 713 (1971) (per curiam) the Court issued a very narrow per curiam opinion and then all nine justices filed an opinion with different reasoning. A similar thing occurred in Furman v. Georgia, 408 U.S. 238 (1972) (per curiam). But there are very few like this.
Conversely unanimity provides clarity and power. In Brown v. Board of Education of Topeka, 347 U.S. 483 (1954) a unanimous opinion was achieved giving great clarity and power to the opinion and the message was not diffused in any way by a plethora of differing views. Thus having the practice of the U.S. Supreme Court carried over to the new U.K. Supreme Court would work very well, as demonstrated by the foregoing examples, judicial independence—both from the other branches of government and other judges—can be maintained and more readable, stable, clear decisions can be handed down and reported. I hope the second ever judgment handed down today (In Re Sigma) is the way forward, with perhaps improvements inspired from elsewhere.” 

UKSCBlog thinks these are points well made.  A considerable amount of time and inordinate cost has been spent over the years by lawyers pondering over varying (if even concurring) House of Lords judgments.  One thinks for example of the wildly differing reasoning even between the majority in Chaplin v Boys on the question of double acitonability.  Also, the outcome can seem very arbitrary when, as in Campbell v MGN, five of the nine judges who heard the case at its three stages through the legal hierarchy (three at the Court of Appeal and two in the House of Lords) found for the defendant and only four (one at first instance and three in the House or Lords) found for the claimant, but because the claimant enoyed a narrow majority in the House of Lords, she won.  An authoritative and unanimous decision of the Court would add greatly to the majesty of the law.