Judicial configurations

Cambridge Law Journal

Volumn 61, Issue 3, 2002, Pages 612-656

  Munday, Roderick ^a  

^a NONE   (United Kingdom)

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EID: 85010151991     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197302001757     Document Type: Article

References (174)

1. See R. Munday, “All for One and One for All: The Rise to Prominence of the Composite Judgment within the Civil Division of the Court of Appeal” [2002] C.L.J. 321.
2. Hassan [2002] EWCA Crim 1727 is one recent example. True, the case concerned a conspiracy to import cannabis with a British street value of £44 million. However, the comparative ease with which the court dispatched the appellant's grounds of appeal does make one wonder why exactly Henry L.J. felt it necessary to make explicit, “This is the judgment of the court to which all members have contributed.”
3. E.g., Sutherland v. Hatton [2002] EWCA Civ 76. For another example of a composite Court of Appeal decision that comes complete with a summary (“which forms no part of this judgment”), an index and three appendices
4. see R. (on the application of W) v. Mayor and Burgesses of London Borough of Lambeth [2002] E.W.C.A. Civ 613. The occasional Divisional Court case, too, incorporates a summary and index
5. e.g., Hoverspeed Ltd. v. H.M. Customs & Excise [2002] E.W.H.C. (Admin.) 1630. Appendices have figured in several cases
6. e.g., Morgan Grenfell & Co. v. Isituto per i Servizi Assicurativi del Commercio [2001] EWCA Civ 1932.
7. Thus, in English v. Emery Reimbold & Strict Ltd. [2002] EWCA Civ 605, three “conjoined” appeals in which the Court of Appeal-needless to say, in a composite judgment “to which all members (had) contributed”-gave guidance on a judge's duty to give reasons, Lord Phillips M.R. added a short postscript underscoring for the slower of understanding “the two lessons to be drawn from these appeals” (at [118]).
8. See also, Fox v. H.M. Customs & Excise [2002] E.W.C.A. (Admin.) 1244.
9. See, e.g., R. Munday, “‘Official’ Law Reports, Neutral Citation and other Curiosities: Another Visit to the Grand Canon” (2001) 165 J.P.N. 342.
10. See R. Munday, “Law Reporting: Maintaining a Literate Common Law” (2002) 166 J.P.N. 284, 288–290. Lord Rodger of Earlsferry, in contrast, has suggested that, if anything, in view of the attention now paid to paragraphing thanks to neutral citation, “a short succession of short, staccato paragraphs can, whether intentionally or not, give a judgment an added appearance of decisiveness”
11. “The Form and Language of Judicial Opinions” (2002) 118 L.Q.R. 226, 236–237. Maybe so, provided that their number is strictly rationed. Eerily, when a Court of Appeal determines, for whatever motive, to deliver its reasons compositely, but “in very short form”, with half a dozen sub-headed sections, all but one comprising only a single terse paragraph, the English lawyer's sense of depaysement is surely complete
12. see R. (on the application of Boulton) v. Leeds School Organisation Committee [2002] EWCA Civ 884 at [2] per Sedley L.J.
13. [2002] EWCA Civ 76 at [75]-[224].
14. “What Borges can Teach Us” in Fragments of Law-as-Culture (1999: Deventer, W.E.J. Tjeenk Willink p. 76).
15. “The Form and Language of Judicial Opinions” (2002) 118 L.Q.R. 226, at pp. 233–234 and 247 (postscript).
16. For references, see R. Munday, “All for One and One for All”, at p. 322, n. 2. The House of Lords, of course, has produced single judgments in other major cases, although not in the form of a single speech to which all the Law Lords have contributed
17. e.g. Duncan v. Cammell Laird [1942] A.C. 624
18. Rookes v. Barnard [1964] A.C. 1129. Equally, there exist a few examples of pairs of Law Lords collaborating in the composition of a single speech: see below, text accompanying note 112.
19. “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law at pp. 364–365.
20. Clibbery v. Allan [2002] 2 W.L.R. 1511, 1540 at [99] per Thorpe L.J. (emphasis added).
21. See, e.g, Lord Woolf C.J.'s “Foreword” to Basil S. Markesinis, Foreign Law and Comparative Methodology: A Subject and a Thesis (1997: Oxford, Hart Publishing) pp. vii-viii.
22. [2002] 1 W.L.R. 2055 at [37].
23. 1 W.L.R., at [25].
24. This theme of diversity and uniformity is addressed in several of the essays in Legrand and Munday (eds.), Comparative Legal Studies: Traditions and Transitions (2003: Cambridge, Cambridge University Press) forthcoming.
25. S. Hawthorne, “The Master of All He Surveys” (April 2002) Counsel, at p. 11. Lord Phillips is, of course, quite correct. Having recently sampled the last 25 years of reported cases, I have been struck by the increasing length of English civil judgments.
26. The Times (2001) 16 July.
27. The Daily Telegraph (2002) 29 July.
28. E.g., Matthews v. Ministry of Defence [2002] EWCA Civ 773 per Lord Phillips M.R. This practice might lead one to infer that the judgment has been drafted entirely by the person who delivers it.
29. E.g., Morgan Grenfell & Co. Ltd. v. Istituto per a Servizi Assicurativi del Commercio, [2001] EWCA Civ 1932 at [1] per Clarke L.J.
30. See also Arthur J.S Hall & Co. v. Simons (1998) 14 December, unreported per Lord Bingham C.J. (“all members have very substantially contributed”)
31. Steel and Morris v. MacDonalds Corporation (1999) 31 March, unreported per Pill L.J. (“each member has contributed substantially”).
32. E.g., Greig Middleton & Co. Ltd. v. Denderowicz [1998] 1 W.L.R. 1164 per Saville L.J.
33. [2000] EWCA Civ 284 at [1]. For further examples of composite judgments where authorship is acknowledged
34. see “All for One and One for All”, at pp. 337–338.
35. In “All for One and One for All”, at p. 349, n. 149, I suggested that some composite judgments are the product of obvious collaboration and one can fancy that one recognises different styles of authorship.
36. Brown v. Stott (Procurator Fiscal (Dunfermline)) [2001] 2 W.L.R. 817 concerned a woman, apprehended in the early hours of the morning for stealing a bottle of gin from a supermarket. The police had formed the view that she was somewhat the worse for wear through drink. Therefore, exercising their powers under the Road Traffic Act 1988, s. 172(2)(a), they had required the lady to say whether or not she had been driving her car, which, they knew, was parked in the superstore's car park. Under s. 172(3) of the Act, if Mrs. Brown had refused to answer this question, she would have committed an offence. Mrs. Brown acknowledged that she had been driving. The High Court of Justiciary had held that the lady's right of fair trial had been violated by this high-handed statutory requirement to furnish evidence against herself. The Judicial Committee disagreed, unanimously.
37. In a second case, Mcintosh v. Lord Advocate [2001] 3. W.L.R. 107, appeal was successfully taken to the Judicial Committee against the High Court of Justiciary's decision that drug trafficking and general proceeds of crime legislation (the Proceeds of Crime (Scotland) Act 1995), which invites courts to make wide-ranging assumptions about the illegal origins of a convicted defendant's assets when considering whether or not to make a confiscation order, had again led to proceedings which had deprived defendants of their right to a fair trial.
38. In a third case, Millar v. Dickson [2002] 1. W.L.R. 1615, four appellants successfully appealed against the High Court of Justiciary's rulings that the temporary sheriffs before whom they were tried for various criminal offences constituted an independent and impartial tribunal within the meaning of art. 6(1) of the European Convention.
39. (After these cases were heard, the High Court handed down judgment in Stars v. Ruxton, Ruxton v. Starrs 2000 J.C. 208, holding that temporary sheriffs were not an independent and impartial tribunal under art. 6(1)). A fourth case concerned three conjoined appeals challenging the legislative competence of the newly founded Scottish Parliament, in which it was claimed that that body's first piece of legislation was incompatible with art. 5 of the European Convention
40. A v. The Scottish Ministers 2002 S.C. (P.C.) 63.
41. A fifth case challenged Scotland's fixed fee legal aid scheme and, more particularly, the Scottish Executive's failure to amend the unyielding 1999 legal aid regulations: McLean v. Buchanan [2001] 1 W.L.R. 2425.
42. A sixth case concerned two causes where it was contended that, contrary to art. 6(1), the prosecuting authorities had failed to comply with the requirement to bring the parties to trial “within a reasonable time”: Dyer v. Watson 2002 S.C. (P.C.) 89.
43. In the most recent case to have been heard at the time of writing, Mills v. H.M. Advocate (No. 2) 2002 S.L.T. 939, the Committee has ruled upon the consequences that flow from breach of an appellant's right to a hearing within a reasonable time, guaranteed under art. 6(1) of the European Convention.
44. See notably, Montgomery and Coulter v. H.M. Advocate [2001] 2 W.L.R. 779.
45. Brown v. Stott [2001] 2 W.L.R. at p. 848 per Lord Hope of Craighead.
46. Lord Hope, in an instructive address delivered to the Law Society of Scotland's annual conference, has set out the reasons why the Judicial Committee was selected as the tribunal for hearing devolution appeals in preference to the House of Lords: “Edinburgh v. Westminster and others” (1997) 42 Journal of the Law Society of Scotland 140, 141–143.
47. “Judicial Politics and the Judicial Committee: The Devolution Jurisprudence of the Privy Council” (2001) 64 M.L.R. 603.
48. O'Neill pursues identical themes in “Judicial Politics in the Judicial Committee” (2001) 46 Journal of the Law Society of Scotland 17.
49. (1955) 33 Can. Bar Rev. 1123. Arguably, Lord Wright does dissent from his brethren's opinion via the medium of this article.
50. (1877) L.R. 2 P.D. 276. The case, which came from the Canterbury Court of Arches, involved a Folkestone vicar who appealed against findings that he had offended against ecclesiastical law by such scandalous conduct as wearing an alb and chasuble during Holy Communion, using circular wafers in place of the customary bread, placing a crucifix on the screen between the chancel and the nave, and so on.
51. Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972, Oxford) p. 110 [punctuation supplied].
52. See also Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221, 235: “(I)n the Judicial Committee of the Privy Council, only two opinions are permitted, a collective majority opinion and a dissent.” (I am not at all sure that this is explicitly predicated by the terms of the 1966 Order, although it does appear to represent the invariable practice.)
53. In contrast, reasons given for the report of the Lords of the Judicial Committee when hearing petitions for special leave to appeal in devolution cases are delivered collectively by a single judge: see, e.g., Fallen v. KM. Advocate (D.P. 1 of 2000) [2001] D2 UKPC 1. This mirrors the practice followed by the Appeal Committee of the House of Lords when deciding whether or not to grant petitioners leave to appeal.
54. “Edinburgh v. Westminster and others”, (1997) 42 Journal of the Law Society of Scotland 140 at p. 142. Lord Hope's statement of House of Lords practice is possibly contestable. There have in fact been occasional instances when members of the House of Lords have delivered composite dissenting judgments.
55. In Home Office v., Harman [1983] 1 A.C. 380, for example, Lords Simon of Glaisdale and Scarman collaborated in the preparation of the speech delivered by the latter. Technically, however, one could still claim that Lord Simon did deliver an individual speech to the extent that he stated in a couple of sentences how privileged he felt to have participated in the drafting of a speech which expressed views he shared (at p. 307).
56. [1935] A.C. 500, 510–511.
57. [1964] A.C. 900, 913 per Viscount Radcliffe.
58. See generally Stevens, Law and Politics: The House of Lords as a Judicial Body 1800–1976 (1979, London)
59. McWhinney, “Judicial Concurrences and Dissents: A Comparative View of Opinion Writing in Final Appellate Tribunals” (1953) 31 Can. Bar Rev. 592
60. Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221.
61. Not all of Lord Bingham's suggestions immediately sound appetising. In particular, I would respectfully suggest that it is sad that his Lordship felt it necessary to question whether appeals should continue to be heard by a tribunal, which anyone studying its website would assume to be rather under-employed, from some of the poorest jurisdictions on the planet where the sum in dispute is “in some cases as low as $500”. Were Latin utterances still permissible before English judges, I would contend that this looks suspiciously like a true case of de minimis non curat lex. On the subject of legal Latin, see further R. Munday, “Does Latin Impede Legal Understanding? The Case of ‘Res Ipsa Loquitur’” (2000) 164 J.P.N. 995.
62. [2001] 3 W.L.R. 107.
63. In a similar way, in Mills v. H.M. Advocate (No. 2) 2002 S.L.T 939, only Lords Steyn and Hope deliver full speeches. Lords Nicholls of Birkenhead and Scott of Foscote, however, indicate their agreement with both opinions, whilst Lord Mackay of Clashfern allies himself only with that of Lord Hope. Despite delivering an independent speech, however, Lord Steyn adds that he agrees with “(Lord Hope's) reasons on all aspects of the case” (at [24]).
64. See my comments on Parker L.J.'s judgment in just such a case, W.F. Harrison & Co. v. Burke [1956] 1 W.L.R. 419
65. in “Notice of the Legal Assignment” (1981) 131 N.L.J. 607.
66. Brown v. Stott (Procurator Fiscal (Dunfermline)) [2001] 2 W.L.R. 817; see n. 30 above.
67. Lord Hope had in fact already dealt with the devolution issue at greater length in the earlier case of Montgomery and Coulter v. H.M. Advocate [2001] 2 W.L.R.779.
68. The selfsame phenomenon is visible in A v. The Scottish Ministers 2002 S.C. (P.C.) 63, where only Lords Hope and Clyde deliver full speeches on the sensitive question whether or not the Scots Parliament overstepped the human rights mark in its very first piece of legislation. One does feel uneasy that non-Scots judges fear to intrude into putative Scots grief
69. [2001] 2 W.L.R. 992. Sedley L.J. pungently described the dispute as an “intrusion … by uncontrolled photography for profit of a wedding which was to be the subject of controlled photography for profit” (p. 1030, para. [141]).
70. American Cynamid Co. v. Ethicon Ltd. [1975] A.C. 396.
71. See [2001] 2 W.L.R. at p. 1007, para. [54]. Keene L.J. addresses this issue at paras. [150–154].
72. See [2001] 2 W.L.R. at p. 1028, para. [136]. This is not of course meant to suggest that the phenomenon of judicial co-operation is a novelty. On the contrary, it is an institution.
73. Take Goff L.J.'s judgment in re Gray's Inn Construction [1980] 1 W.L.R. 711, 725: “Having had the advantage of reading Buckley L.J.'s judgment whilst it was still in draft, and of discussing the case with him on several occasions, I am happy to say, with respect, that I agree in its entirety with the judgment which Buckley has just delivered.” (This revealing sentence somehow is more reassuring than Sir David Cairns's guarded statement, “I also am in a position of being able to agree” (judgment in re Gray's Inn Construction)).
74. [2001] 3 W.L.R. 843.
75. 3 W.L.R., pp. 860–876.
76. 3 W.L.R., pp. 847–860. The division of functions here seems to he dictated by the fact that whereas Lord Scott dealt with the point of statutory interpretation, Lord Hutton concentrated upon the potential impact of art. 6 of the European Convention on Human Rights on a statute that compelled the taxpayer to reveal information that might later ground a prosecution.
77. See, e.g., Basil Markesinis, “A Matter of Style” (1994) 110 L.Q.R. 607 and sources cited, reprinted in Foreign Law and Comparative Methodology: A Subject and a Thesis (1997, Oxford: Hart Publishing) pp. 126ff.
78. H. Kötz, “Scholarship and the Courts: A Comparative Survey” in D.S. Clark (ed.), Comparative and Private International Law: Essays in Honor of lohn Henry Merryman on his Seventieth Birthday (1990, Berlin: Duncker & Humblot) pp. 183 ff.
79. Basil Markesinis, “Judicial Style and Judicial Reasoning in England and Germany” [2000] C.L.J. 294, reprinted in Always on the Same Path: Essays on Foreign Law and Comparative Methodology. Volume II(2001, Oxford: Hart Publishing) pp. 305ff.
80. Hinz v. Berry [1970] 2 Q.B. 40, 42. Similar examples abound in the judgments of Lord Denning
81. see, e.g., Miller v. Jackson [1977] 3 All E.R. 338, 340.
82. [1968] 1 All E.R. 49, 50. As Kötz has remarked, “A Continental lawyer feels like being submerged in a oxygen bath when he reads (this) opening statement”: “The Role of the Judge in the Court-room: The Common Law and Civil Law Compared”
83. (1987) 1 T.S.A.R. 35, 42.
84. Holden v. Lancashire Justices (1998) 162 J.P. 789.
85. R. v. Ealing Magistrates' Court, ex p. Fanneran (1996) 160 J.P. 409, 416D-E: “… it seems to me that the Dangerous Dogs Act 1991 bears all the hallmarks of an ill-thought-out piece of legislation, no doubt in hasty response to yet another strident pressure group. Add to that the foolish nephew, an observant and zealous policeman and the result is that a perfectly inoffensive animal has to be sent to the gas chamber, or whatever method of execution is favoured, its only crime being to have a cough. It would take the pen of Voltaire to do justice to such a ludicrous situation.”
86. Ruxley Electronics and Construction Ltd. v. Forsyth [1996] A.C. 344, 354D.
87. Smedley's Ltd. v. Breed [1974] A.C. 839, 845.
88. Mills v. H.M. Advocate (No. 2) 2002 S.L.T. 939 at [3] (“Having already given a judgment on this point, I feel diffident about doing so again. I fear I must return to the point”: punctuation supplied).
89. Ravenscroft v. Rederiaktiebolaget Transatlantic [1991] 3 All E.R. 73, esp. at pp. 76 and 87
90. reversed by the Court of Appeal (1992) The Times, 6 April.
91. See, e.g., Smith v. Colonial Penn Ins. Co. (1996) 6 November (civil action no. G-96–503 in the U.S. District Court for the Southern District of Texas, Galveston Division)
92. Republic of Bolivia v. Philip Morris Companies Inc. (1999) 1 March (civil action no. G-99–100)
93. Labor Force Inc. v. Jacinport Corp. and James McPherson (2001) 7 June (civil action no. G-01–058)
94. Bradshaw v. Unity Marine Corporation Inc. (2001) 27 June, 2001 U.S. Dist. LEXIS 8962 (civil action no. G-00–558).
95. Basil Markesinis, “A Matter of Style” at p. 127 and 129.
96. [1993] A.C. 593.
97. Pepper v. Hart, one might add, supplies an instructive sidelight on judicial character. Lord Griffiths could not restrain himself from declaring that “on this question of construction I was in a judicial minority of one at the end of the first hearing of the appeal” ([1993] A.C. at p. 619D). He was of course in the majority at the second hearing. Now, why would a judge particularly wish us to know that?
98. “The Role of the Judge in the Court-room: The Common Law and Civil Law Compared” (1987) 1 T.S.A.R. 35, 41.
99. See, e.g., Wisely v. John Fulton (Plumbers) Ltd.; Wadey v. Surrey County Council. [2000] 1 W.L.R. 820, 822 and 829 per Lord Slynn and per Lord Millett
100. E.g., Nagarajan v. London Regional Transport [1999] 3 W.L.R. 425, 428 per Lord Browne-Wilkinson.
101. [1975] 1 W.L.R. 1468, 1473G.
102. [2001] 3 W.L.R. 1562.
103. [2001] 3 W.L.R. 206.
104. [2001] 3 W.L.R. 1562, 1568 at [15]. Lord Lloyd, it should he said, was not the only member of the court who felt that he was on the rack. Lord Steyn, too, sensed that “the artificial distinction” drawn by the majority in Lambert was “mistaken” (at [26]), but considered that it would now be wrong to depart from that earlier ruling.
105. 3 W.L.R., at [16].
106. 3 W.L.R., at [17].
107. See Saunders v. UK (1996) 23 E.H.R.R. 313
108. IJL, AKP and GMR v. UK (2000) The Times, 13 October. In the event, the Guinness appellants' appeals were rejected on the ground that, prior to the entry into force of the Human Rights Act 1998, the European Court had no jurisdiction to issue what was tantamount to a declaration that an English Act of Parliament was unlawful: Lyons.
109. Parnes, Ronson and Saunders [2001] EWCA Crim 1860.
110. [2001] 3 W.L.R. at 1569, at [19].
111. S. Barclay, An Appealing Act (1993, Ph.D. dissertation).
112. S. Barclay, “Posner's Economic Model and the Decision to Appeal” (1997) 19 Justice System Journal 77.
113. Interestingly, in her study, “Who loses out on Paradise Island? The case of Defendant Debtors in County Court”, in Iain Ramsey (ed.), Debtors and Creditors: A Socio-Legal Perspective (1986, Abingdon, Professional Books), Maureen Cain discovered that half of the small sample of individuals questioned gave as their reason for bringing suit in the county count “a point of principle”. Moreover, 47.4% of the plaintiffs Cain interviewed (mainly, institutional litigants) gave as their reason for suing “general deference” (esp. pp. 109–110 and 117–118).
114. An Appealing Act: Why People Appeal in Civil Cases (1999, Evanston (111.): Northwestern University Press; The American Bar Foundation) p. 3. Barclay's research is not out on a limb, hut dovetails into a broader perspective adopted by some political scientists that “disputants pursue grievances not only in terms of material interests, but also in terms of norms about integrity, self-image, self-respect, and duties to others” (e.g., S. Merry and S. Silbey, “What do Plaintiffs Want? Re-examining the Concept of Dispute” (1984) 9 Justice System Journal 151, 160)
115. R. Shamir, “Litigation as a Consummatory Action: the Instrumental Paradigm Reconsidered” (1991) 11 Studies in Law, Politics and Society 41. It also conforms to some scholars' view that, more generally, process offers a superior vehicle to outcome for understanding the relationship between individuals and institutions and the state: e.g. J. Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996, Cambridge, Mass.: MIT Press).
116. An Appealing Act, pp. 155 and 159–160.
117. An Appealing Act, pp. 64–65.
118. See generally John Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221.
119. (1770) 4 Burr. 2579, 2582.
120. Final Appeal (1972, Oxford) p. 83.
121. [2002] 1 W.L.R. 671, 684. Coincidentally, in the same issue of the Weekly Law Reports, in Jones (Anthony) [2002] 2 W.L.R. 524, where the House of Lords considered whether the English rule that allows a criminal trial to proceed in the absence of an absconding accused is compatible with human rights law, Lords Bingham and Nolan reluctantly suppressed their view that a doctrine of waiver may apply, in light of the strong contrary opinion entertained by Lords Hoffmann and Rodger of Earlsferry (at [15] and [18])? Are uneasy compromise and intellectual fudge destined to become the order of the day? (Lord Hutton, it should be said, took a more robust stance (at [36])).
122. See notably, Postema, Bentham and the Common Law Tradition (1986: Oxford: Clarendon Press). Currently, it might be mentioned that dissents are registered in the English Court of Appeal and House of Lords in approximately 10% of cases.
123. In Kansal (No. 2) [2001] 3 W.L.R. 1562, Lord Hope admitted that he had considered withdrawing his judgment, “out of loyalty to the view of the majority,” once he realised that there was a clear majority in favour of following Lambert. “On balance,” he nevertheless went on to say, “I have decided that I ought to adhere to it, in case it may still be necessary in some future case to consider the question … What follows, with only a few changes, is my judgment as originally circulated” (at [30]).
124. Bentham and the Common Law Tradition (1986, Oxford) p. 9.
125. Parliamentary Papers, House of Lords 1856, (46) xxiv Q. 24, 25, 35, 339, 590, 784.
126. See Alder, (2000) 20 O.J.L.S. 221, at pp. 235 ff.
127. See Robertson, Judicial Decisions in the House of Lords (1998) p. 26
128. “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law 364, 365 and 366. Lawson also makes the allied point, not unconnected with these themes, that “It would he idle to expect English judges to write in a less discursive manner than the way they speak” (at p. 366).
129. [2002] EWCA Civ 555 at [106].
130. See also Barclays Bank pic v. Burgess [2002] EWCA Civ 291 at [36]
131. per Ward L.J.: “I entirely agree with the judgment of Chadwick L.J. and although we are differing from an experienced judge, there is nothing I can usefully add; Venables v. Hornby [2002] EWCA Civ 1277 at [39] per Peter Gibson L.J.”
132. See “Judicial Politics and the Judicial Committee”, cited note 33 above.
133. Morris v. C.W. Martin & Sons Ltd. [1966] 1 Q.B. 716, 730.
134. “They sought it with thimbles, they sought it with care …”: Lewis Carroll, The Hunting of the Snark (1876: London, Constable) Fit. v, st. 1. For a vigorous discussion of some of the disadvantages of concurring judgments, see L.C.B. Gower, “Reflections on Law Reform” (1973) 23 Univ. Toronto L.J. at pp. 257–259.
135. E.g., U.C.B. Corporate Services Ltd. v. Williams [2002] EWCA Civ 555 at [106] per Peter Gibson L.J.
136. (1890) L.R. 15 A.C. 210.
137. [1932] A.C. 161.
138. [1950] 1 K.B. 671.
139. At the very moment of going to press the Court of Appeal, in its composite judgment in Great Peace Shipping Ltd. v. Tsavliris (International) Ltd. [2002] EWCA Civ 1407, has declared Solle v. Butcher to be bad law. The distinct equitable doctrine of mistake may in consequence be gone. However, one can anticipate that the phenomenon identified in the text will persist and that the summary of the doctrine of common law mistake set out by Lord Phillips M.R. and May and Laws L.JJ. at para. [76]-along with Steyn, J.'s remarks in
140. Associated Japanese Bank (International) Ltd. v. Credit du Nord [1989] 1 W.L.R. 255, 268, which the court expressly approved (at [90])-will acquire a similar lapidary status to that of Denning, L.J.'s distillation of the common law of mistake in Solle v. Butcher.
141. [2002] EWCA Civ 762.
142. EWCA Civ, at [1] per Robert Walker L.J.
143. EWCA Civ, at [41]. The judge later admits with regret that his progress to this conclusion was “tortuous”, had “occasioned some delay and additional expense”, and “is not a wholly satisfactory test” (at [52] and [53]).
144. EWCA Civ, at [110].
145. EWCA Civ, at [123].
146. EWCA Civ, at [128].
147. Christmas Eve and Easter Day (1850: London, Chapman & Hall) canto iv.
148. See Greig Middleton & Co. Ltd. v. Denderowicz [1998] 1 W.L.R. 1164 per Saville L.J.
149. E.g., Kuwait Airways Corporation v. Iraqi Airways Co. [2000] EWCA Civ 284.
150. Thoburn v. Sunderland City Council [2002] 3 W.L.R. 247.
151. [2002] E.W.H.C. (Admin.) 195 at [83]. There is no particular reason for selecting this case in preference to the thousands of other similar examples, save that I have a vivid recollection of how incongruous this “judgment” seemed at the time
152. [2002] 3 W.L.R. 247, at [1] per Laws L.J.
153. Crane J.'s only other contribution, of which we are made aware, is that he agreed with a letter sent to counsel by Laws L.J. after close of argument suggesting a further point for their consideration: 3 W.L.R., at [77].
154. See “All for One and One for All”, at p. 325. Add to these figures the percentages of cases in which composite judgments were handed down and the proportion of cases in which multiple judgments were delivered in these years was as follows: in 1999, 46.7%; in 2000, 39.7%; and in 2001, 48.2%. Although I have not sought to verify this, my distinct sense is that these figures would be roughly replicated in those Court of Appeal decisions that are not selected for inclusion in the Incorporated Council's law reports.
155. [2002] 1 W.L.R. 2304.
156. [2002] EWCA Civ 21.
157. The experience of US federal courts in the delivery of composite opinions was briefly discussed in “All for One and One for All”, at pp. 347–348.
158. See, e.g., Lawson, “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law 364, 366: “The drastic curtailment of the time available for oral advocacy before American appellate courts has helped to make the preparation of argument not only a written but also a corporate enterprise … and concurrently with the development of the judicial conference, the appellate opinion has become corporate also.” Depending upon which elements one chooses to lay emphasis, one can cause the picture to mutate like a kaleidoscope. Thus, musing upon the differences between English, American and French judgments, Lawson at one point singles out the corporate nature of American court opinions, “combined with the search of a communis opinio”, claiming that the effect is “to cause the convergence between American and French judicial styles and their divergence from the English.” Additionally, the form of discourse encountered within those three systems diverges in the sense that “in England discussion takes place between Bench and Bar, whereas in America and France a large part of it, perhaps the most important part, is among the judges and their auxiliaries, law clerks in the former and avocats-generaux in the latter” (p. 365).
159. “La collégialité est-elle une garantie de la sûreté des jugements?” Rev. trim. dr. civ. 1992. 532–538.
160. E.g., Maurice Garcon, Lettre ouverte à la justice (1966: Paris, Albin Michel) pp. 71–73.
161. Francçois Gorphe, Les décisions de justice. Étude psychologique et judiciaire (1952: Paris, Sirey) pp. 39 and 163.
162. Rev. trim. dr. civ. 1992, at p. 533. These conclusions look plausible. Intuitively, one senses that the dynamics of deliberation are likely to have an effect on decision-making and on the formulation of arguments. I am tempted to draw a cautious parallel with recent findings of psychologists at Glasgow University, whose study of jury deliberations would suggest that conventional 12-member juries are simply too large to allow for true interaction or to permit “true consensus” (see James Randerson in New Scientist, 4 September 2001). In the Glaswegian study, Simon Garrod remarked, significantly, that “In a small group (of five), other people can finish or modify what you're saying”, allowing a final decision to emerge from the amalgamation of everyone's opinions.
163. Rev. trim. dr. civ., p. 537.
164. See generally D. Walton, Slippery Slope Arguments (1992, Oxford, Clarendon Press). There are, of course, other changes in working methods in the appellate courts of which one has similar suspicions. There is, for example, a small number of law clerks attached to various of the senior judges.
165. Both the former (“A Seat in the Lords?” (August 2002) Counnsel, p. 20) and the latter
166. Lord Bingham, quoted Slippery Slope Arguments
167. Lord Philips, quoted in S. Hawthorne, “The Master of All He Surveys” (April 2002) Counsel, at p. 11
168. cited in note 18 above assure us that the clerks are not, and will not, be employed à l'américaine to participate in the composition of judgments (see, e.g., Richard A. Posner, Federal Courts: Challenge and Reform (1996, Cambridge, Mass.: Harvard University Press)
169. George Rose Smith, “A Primer of Opinion Writing for Law Clerks” (1973) 26 Vand. L. Rev. 1203
170. Joseph Vining, “Bureaucracy and Legal Method” (1981) 80 Mich. L. Rev. 248
171. Lauren K. Robel, “Caseload and Judging: Judicial Adaptations to Caseload” (1990) B.Y.U.L. Rev. 3). Once again, one could suggest that the seeds have been sown.
172. Misreading (1993: London, Jonathan Cape. Trans. W. Weaver), p. 4.
173. “A Defence of China Shepherdesses” in The Defendant (1907: London J.M. Dent & Sons Ltd.) p. 84.
174. The Philosophical Investigations, ed. E. Anscomhe, (1958, Oxford, Basil Blackwell) para. 71.