UK Supreme Court Blog

EDITORS: Dan Tench, Emma Cross, Zainab Hodgson, Francesca Knight, James Warshaw and Natalie Haefner (CMS)
Hugh Tomlinson KC, Matthew Ryder KC, Dévante Gravesande-Smith and Rebecca Khan (Matrix)

The style, or readability of a Court’s judgements is critical to the effectiveness of its work. So it is not surprising that  several commentators have considered this an important issue for the new Supreme Court.

In a recent lecture the Master of the Rolls and former Law Lord, Lord Neuberger (pictured) gave his views. He spoke in favour of the desirability of a single ‘majority judgment’, followed by dissenting and concurring judgments if necessary. In his view that format provides relative clarity, while allowing for a variety of opinions to be expressed.

His observations have been praised by commentators such as Joshua Rozenberg. Such an approach not only makes judgments clearer, but also enhances the longer term development of the law.

As Lord Neuberger pointed out:

 “The majority’s judgment sets out the ratio. It obviates the need to search through five or more separate judgments, to hunt amidst the nuance of words, for the ration. It obviates the argument as to what if anything is the ration. In this it provides a clear picture of why the law is as the court has declared it to be. (And of course, where individual judges have their own additional and separate reasons, they can express them in the form of concurring judgments. Judgments which would contain reasons that do not form part of the ratio would clearly express which aspects of the majority judgment were agreed with).”

Like the US Supreme Court, the European Court of Human Rights adopts a ‘majority judgment’ approach in preference to the ‘single judgment’ approach used in the European Court of Justice in Luxembourg. Professor Robin White of Leicester University has written a paper analysing the Strasbourg approach. He also agreed that the ‘majority judgment’ approach seemed to be a more effective way to elucidate and develop legal principles. It also provides greater transparency over the reasoning process.

Of course, the ‘majority judgment’ approach still allows each judge to add his or her own opinion, whether dissenting or concurring. This still leaves scope for confusion. Martin Garbus, in his introduction to “The Next 25 Years, the New Supreme Court and what it means for Americans” (2007), commented on how this was affecting modern US Supreme Court judgments:

“Recently, eight separate opinions were rendered in one one-hundred-page-decision, a result that discourages even the most dedicated of court followers. As if all this were not enough, the [US] Supreme Court opinions of today tend to be more nuanced and complex than in the past. It is nearly impossible for the better Supreme Court reporters, under deadline, to see long-term patterns… Although these decisions are available to anyone, they are not read, and a precious few public citizens and journalists watch oral arguments in the Supreme Court.”

It is a valid concern. Garbus’ observation highlights the fact that there is no point focusing on the format of the judgment, if the style in which it is written prevents it from being easily understood.

In that context few can rival the clarity of Lord Bingham of Cornhill, now retired.  At a conference last year in honour of Lord Bingham, Lady Justice Arden gave a speech entitled “A Matter of Style? The Form of Judgments in Common Law Jurisdictions: A comparison”.

Lady Justice Arden did not suggest a particular format for ever circumstance, but concluded with four suggestions:

1.    Whenever an appellate court has to prepare a judgment after hearing a case, it should consider the form its judgment should take.

2     It should consider whether in that instance judicial independence requires a series of separate judgments or whether the view of either the majority or the minority can be expressed in a single set of reasons.

3.    Whenever there is a concurring or dissenting judgment, the author of the judgment should (a) make it clear with what reasoning or propositions in the main judgment the author agrees or disagrees and (b) avoid if possible repeating the facts or citations of authority already set out in the main judgment. As a supplement to that, it does not meet this proposition merely to say, “My judgment is in substantial agreement with that of the lead judgment”. But that is, I suppose, better than nothing, and there may be circumstances where that is an appropriate course.

4.   There should be internal engagement at appropriate stages in the preparation of judgments.