The rise to prominence of the composite judgment within the civil division of the court of appeal

Cambridge Law Journal

Volumn 61, Issue 2, 2002, Pages 321-350

  Munday, Roderick ^a  

^a PETERHOUSE   (United Kingdom)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 85011454512     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197302001642     Document Type: Article

References (224)

1. R. Munday, Judicial Configurations: Permutations of the Court and Properties of Judgment. Paper delivered on 23 September 2001 at the A.I.J.A.'s 19th annual conference in Hobart, Tasmania.
2. [1998] Ch. 439.
3. [1990] Q.B. 923.
4. [1994] 4 All E.R. 225.
5. [1999] 1 W.L.R. 1569.
6. [2000] 2 W.L.R. 1173.
7. [1997] EWCA Civ 2264.
8. [1997] E.L.R. 249
9. [1997] P.I.Q.R. 133.
10. [2000] 2 W.L.R. 622.
11. [1998] 3 W.L.R. 682.
12. [2001] 2 A.C.127.
13. [2001] EWCA Civ 1805
14. [2002] 2 W.L.R. 640.
15. see Misreadings (London 1993) p. 158.
16. For a critical account of this development, see R. Munday, The “Official” Law Reports (2001) 165 J.P.N. 162.
17. R. v. Human Fertilisation and Embryology Authority, ex p. Blood [1999] Fam. 151.
18. St George's Healthcare N.H.S. Trust v. S [1999] Fam. 26.
19. R. v. Chief Constable of N. Wales Police, ex p. Thorpe [1999] Q.B. 396.
20. Manchester C.C. v. McCann [2000] Q.B. 1215.
21. R. v. Legal Aid Board, ex p. Kaim Tadner [1999] Q.B. 966.
22. Soleimany v. Soleimany [1999] Q.B. 785.
23. Hamilton v. al Fayed [1999] 1 W.L.R. 1569 (constitutional issues, collateral attack on parliamentary proceedings, etc.)
24. Paragon Finance plc v. Freshfields [1999] 1 W.L.R. 1183 (waiver of legal professional privilege and third parties)
25. In re Minotaur Data Systems Ltd. [1999] 1 W.L.R. 1129 (the official receiver's entitlement to claim for costs as a litigant in person).
26. Clift v. Welsh Office [1999] 1 W.L.R. 796, 798 (“The amount at stake is £400 … But … we have been told that there are at least 3000 outstanding claims in the area of the Welsh Office which raise the same point, so that the Welsh Office views this as a test case”)
27. C v. S [1999] 1 W.L.R. 1551 (tipping off and money laundering)
28. Ex p. Guardian Newspapers [1999] 1 W.L.R. 2130 (the power to hear proceedings in camera).
29. Ebert v. Venvil [2000] Ch. 484 (whether High Court's inherent jurisdiction to prevent initiation of proceedings that could be an abuse of process extends to the county courts)
30. Pearce v. Ove Arup Partnership Ltd. [2000] Ch. 403 (a request to refer a question of conflict of laws to the E.C.J.).
31. Edge v. Pensions Ombudsman [2000] Ch. 602 (reviewing the role of the pensions ombudsman under the Pensions Scheme Act 1993).
32. Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000] Q.B. 451.
33. The court was made up of the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor. It is interesting to contrast the apparent tendency in English cases, as revealed in this paper, for the court to present a united front when dealing with attacks on the integrity of the system, with the Australian approach where dissent is possible: see, notably, Ebner v. Official Trustee in Bankruptcy (2000) 75 A.L.J.R. 277.
34. Edmonds v. Lawson [2000] Q.B. 501.
35. Director General of Fair Trading v. First National Bank plc [2000] Q.B. 672.
36. Turner & Co. v. O. Palomo S.A. [2000] 1 W.L.R. 37.
37. Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377.
38. Hollicourt (Contracts) Ltd. v. Bank of Ireland [2001] Ch. 555.
39. This decision, it should be noted, followed hard upon the heels of Coutts & Co. v. Stock [2000] 1 W.L.R. 906 where Lightman J. had observed ruefully, “the authorities are in disarray, and the state of the law is uncertain, if not confused.”
40. Fraser v. CanterburyDiocesan Board of Finance [2001] Ch. 669.
41. R. v. N. and E. Devon Health Authority, ex p. Coughlan [2001] Q.B. 213.
42. [2001] Q.B. 272.
43. R. (Khadim) v. Brent L.B.C. Housing Benefit Review Board [2001] Q.B. 955.
44. Ex p. The Telegraph Group plc [2001] EWCA Crim 1075
45. [2001] 1 W.L.R. 1983.
46. In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 W.L.R. 700.
47. Clark v. Perks [2001] 1 W.L.R. 17.
48. R. (P) v. Secretaryof State for the Home Department [2001] EWCA Civ 1151
49. [2001] 1 W.L.R. 2002.
50. Callery v. Gray [2001] EWCA Civ 1117
51. [2001] 1 W.L.R. 2112
52. Callery v. Gray(No. 2) [2001] EWCA Civ 1246
53. [2001] 1 W.L.R. 2142.
54. More recently, in what he described as “a natural sequel to Callery v. Gray”,in Sarwar v. Alam [2001] EWCA Civ 1401.
55. [2002] 1 W.L.R. 125 Lord Phillips of Worth Maltravers M.R. delivered a further composite judgment on the subject of “before the event” insurance.
56. Paragon Finance Ltd. v. Noueri [2001] EWCA Civ 1402
57. [2001] 1 W.L.R. 2357.
58. Dodson v. Peter H. Dodson Insurance Services (a firm) [2001] 1 W.L.R. 1012.
59. A.E. Beckett & Sons (Lyndons) Ltd. v. Midland Electricityplc [2001] 1 W.L.R. 281
60. R. (Montana) v. Secretaryof State for the Home Department [2001] 1 W.L.R. 552
61. R. (X) v. SecretaryofState for the Home Department [2001] 1 W.L.R. 740
62. R. (Holub) v. Secretary of State for the Home Department [2001] 1 W.L.R. 1359
63. R. (Gunn) v. SecretaryofState for the Home Department [2001] EWCA Civ 891
64. [2001] 1 W.L.R. 1634.
65. [1999] 1 F.L.R. 715.
66. [2001] EWCA Civ 1935
67. [2002] 1 W.L.R. 803.
68. It is possible that the composite-judgment cases can be classified in another way: to some extent, they seem to have gone in phases. Thus, for a time medical law cases were regularly handled in this manner. We seem more recently to have passed through a phase when defamation cases have quite regularly been treated compositely. In the early days, it was briefly fashionable to despatch professional negligence cases in this manner: indeed, one of the earliest reported instances of a composite judgment in recent times involved the suit brought against an architect in Moody v. Ellis (1983) 26 B.L.R. 39.
69. See also Lubenham Fidelites & Investment Co. v. South Pembrokeshire D.C. (1986) 33 B.L.R. 39.
70. For an account of “imprinting” accessible to the lay reader, see Konrad Z. Lorenz, King Solomon's Ring: New Light on Animal Ways (New York, Thomas Y. Crowell Co., 1952).
71. [1990] Q.B. 665.
72. Similarly, it could be said that where the issue is an appeal against the amount of damages awarded in a personal injuries case, there is some advantage in the appeal court delivering a single unified finding: Bay v. Konig and Motor Insurers Bureau [2002] EWCA Civ 19.
73. [1998] 1 W.L.R. 1164.
74. [1997] 4 All E.R. 129.
75. [1997] EWCA Civ 1524
76. [1998] 1 W.L.R. 1123.
77. See also English v. EmeryReimbold & Strick Ltd. [2002] EWCA Civ 605, where Lord Phillips of Maltravers M.R. sought to address a ground of appeal that was said to have grown into “a cottage industry” (at para. [2]).
78. [1998] 1 W.L.R. at pp. 1168–1169.
79. (1998) The Times, 4 June, Lexis transcript.
80. This case is unreported, despite Waller L.J.'s remark in Rose v. British Steel plc (1999) 3 March, unreported.
81. [2001] EWCA Civ 242 at para. [1]
82. [2001] I.C.R. 1189.
83. Slade L.J.'s composite judgment in Adams v. Cape Industries plc [1990] Ch. 433 arose out of 205 consolidated actions: “The trial in the court below lasted some 35 days and the argument before this court extended over some 17 days.
84. The case raises important points of law…” In similar vein, Clark v. Tull [2002] EWCA Civ 510 was depicted as “the third round of a contest between the motor insurance market and credit hire companies” (per curiam).
85. [2001] EWCA Civ 1117 at para. [1]
86. [2001] 1 W.L.R. 2112.
87. Other judgments reflect the importance of the principles being laid down. The composite judgment delivered in R.v. Secretaryof State for Transport, ex p. Factortame Ltd. [1997] EWCA Civ 2264 was the first occasion on which a court had had an opportunity to consider the appropriate measure of damages in actions brought against the State for breaches of European Community law.
88. In Governor and Companyofthe Bank of Scotland v. A Ltd., B and C [2001] EWCA Civ 1212 Lord Woolf M.R. was aware that the court was dealing with “issues of considerable public importance”: namely, interpretation of the provisions in the Criminal Justice Act 1988 intended to prevent “tipping off” in money laundering investigations.
89. Lord Woolf M.R. was conscious that the court's composite judgment in Thompson v. Commissioner of Police for the Metropolis [1997] EWCA Civ 1042
90. [1998] Q.B. 498 would be important in the determination of many similar pending appeals which also concerned awards of exemplary damages against police forces.
91. The court's composite judgment in Attorney-General v. Blake [1998] Ch. 439, too, had to do with the “issues … of considerable importance” raised in the case whilst Lord Phillips M.R. felt that a judgment considering the impact of the Human Rights Act 1998 on the Copyright, Designs and Patents Act 1988 merited composite treatment in Ashdown v. Telegraph Group plc [2001] EWCA Civ 1142
92. [2001] 3 W.L.R. 1368.
93. See also Seifert v. Pensions Ombudsman [1997] EWCA Civ 2268
94. [1997] 4 All E.R. 947
95. Peacock v. Custins [1998] EWCA Civ 1958
96. Re National Grid Group of Electricity Supply Pension Scheme [1999] EWCA Civ 761 at para. [2]
97. Heil v. Rankin [2000] EWCA Civ 84
98. [2001] Q.B. 272.
99. [2002] EWCA Civ 10.
100. [1998] 2 F.L.R. 843.
101. See now [2001] UKHL 44
102. [2001] 3 W.L.R. 1021 (H.L.).
103. [1998] EWCA Civ 1943.
104. “Structured Settlements and Interim and Provisional Damages” (September 1994, Report no. 224).
105. [1997] 1 W.L.R. 652.
106. See, e.g., Hammond Suddard v. Agrichem International Holdings Ltd. [2001] EWCA Civ 1915 (two points of principle on which there was little or no authority).
107. [1998] EWCA Civ 245
108. (1998) The Times, 19 February.
109. [1999] 1 Lloyd's Rep 387
110. [2001] EWCA Civ 1880.
111. (1993) The Times, 4 May.
112. Director of Fair Trading v. Proprietary Association of G.B. [2001] EWCA Civ 1217
113. reported sub. nom. In re Medicaments and related Classes of Goods (No. 4) [2002] 1 WL.R. 269.
114. (2002) The Times, 8 February
115. [2001] EWCA Civ 119.
116. [2001] EWCA Civ 19
117. [2001] 4 Lloyd's Rep. PN 308.
118. [1998] EWCA Civ 1178.
119. [1998] EWCA Civ 1179.
120. [1998] EWCA Civ 1309
121. [1999] E.M.L.R. 475.
122. [2000] EWCA Civ 232.
123. Miriki v. General Council of the Bar [2001] EWCA Civ 1972 is broadly on a par with Colley in that the appellant was appealing dismissal of her action against the Bar Council for unfair dismissal, unfair selection for redundancy, racial discrimination and wrongful dismissal–claims which would reflect on the good name of the profession.
124. [2001] EWCA Civ 1137
125. [2002] 1 W.L.R. 160.
126. [2001] EWCA Civ 340
127. [2002] 1 W.L.R. 320.
128. [1999] EWCA Civ 1144.
129. (1993) 30 July, Lexis transcript.
130. [2002] EWCA Civ 15.
131. [2000] EWCA Civ 135
132. [2000] 3 All E.R. 257.
133. See, e.g., Baker v. SecretaryofState for Trade and Industry [2000] EWCA Civ 59.
134. [1999] 1 W.L.R. 1569.
135. [2001] EWCA Civ 1142
136. [2001] 3 W.L.R. 1368.
137. [2000] EWCA Civ 273 (a consolidated action involving up to 56 defendants, a 350-page first instance judgment, and a fraud affecting members of the Saudi royal family).
138. [2001] EWCA Civ 1881
139. [2002] I.R.L.R. 129.
140. [1990] Q.B. 391 (complex, consolidated claims).
141. (1991) 21 November, Lexis transcript.
142. [1998] 2 F.L.R. 843.
143. [1998] 1 W.L.R. 1354
144. [1998] 2 All E.R. 513.
145. [1996] EWCA Civ 565. This sentence is included in the Bailii transcript, but has been edited out of the Lexis version.
146. See now [1998] 1 All E.R. 534
147. [1998] 1 W.L.R. 1376.
148. [2001] EWCA Civ 1570
149. [2002] 1 W.L.R. 907.
150. See also BICC Ltd.v.Parkman Consulting Engineers (a firm) [2001] EWCA Civ 1621 at para. [1] where Henry L.J. again delivers the judgment of the court, this time “prepared by Sir Anthony Evans”. Where the authorship and delivery do not coincide, law reporters can become confused: in Karanakaran v. Secretaryof State for the Home Department Brooke L.J. referred to the fact that an earlier decision had been ascribed to different judges: “I would add a footnote to this judgment.
151. The judgment of this court in ex p. Robinson has variously been ascribed to Lord Woolf M.R. ([1997] 4 All E.R. 210
152. [1998] Q.B. 929
153. [1997] 1 W.L.R. 1162
154. and to myself ((1999) The Times, 8 December
155. [1997] Imm. A.R. 568). The former is correct. Although I prepared the first draft of that judgment, to which the other members of the court contributed, the court agreed that its judgment should be published in the name of Lord Woolf M.R. and that it should begin: ‘This is the judgment of the court, primarily prepared by Brooke L.J.’ This sentence, however, appeared on the title page of the judgment that was handed down, and not in the first one of the judgment, and this led to understandable confusion among the law reporters”
156. [2000] 3 All E.R. 449, 472–473).
157. [2001] EWCA Civ 701
158. [2001] I.R.L.R. 615.
159. [2001] EWCA Civ 2017.
160. [2001] EWCA Civ 1217
161. [2002] 1 W.L.R. 269.
162. [2001] EWCA Civ 1278
163. [2001] 2 All E.R. (Comm) 805
164. See, e.g., Dimsey [1999] EWCA Crim 1917
165. [2000] Q.B. 744.
166. [1997] EWCA. Civ. 2272
167. [1997] 2 F.L.R. 629.
168. See also, Re C (change ofsurname) [1998] 2 F.L.R 656.
169. [1994] 1 F.L.R. 59.
170. See also R.v.Crown Court at Snaresbrook, ex p. Director of Serious Fraud Office (1998) The Times, 26 October.
171. Composite judgments handed down by two-member courts are not however the exclusive preserve of family law cases: see, e.g., Hazel v. Hammersmith & Fulham L.B.C. [1990] 2 Q.B. 697
172. Spring House (Freehold) Ltd. v. Mount Cook Land Ltd. [2001] EWCA Civ 1833.
173. [2001] Fam. 313.
174. (1998) 45 B.M.L.R. 162.
175. [2001] EWCA Civ 1140
176. [2002] 2 W.L.R. 411.
177. 2 W.L.R., at para. [151].
178. (1957) 41 Cr.App.R. 249, 253.
179. Had it not been for illness, Havers J. was destined to have handed down a third. Exceptionally, in Taylor A.F.P. [2002] EWCA Crim 853, in addition to the principal judgment delivered by Leveson J., Kennedy L.J. also delivered a front speech repudiating the claimant's suggestion that he had been concerned in an earlier appeal lodged by Taylor in 1998 (see para. [12]).
180. (1989) 91 Cr.App.R. 138, 139.
181. The recent House of Lords case of Kansal (No. 2) [2001] UKHL 62
182. [2001] 3 W.L.R. 1562, in which Lord Lloyd canvassed the possibility of re-listing that case and reviewing the House's eccentric interpretation of the transitional provisions of the Human Rights Act 1998 in Lambert [2001] UKHL 37
183. [2001] 3 W.L.R. 206 before a seven-member court, brings to the fore the logistical problems posed when cases have to be re-heard before a fresh appellate bench.
184. [2001] 1 A.C. 473.
185. [1975] Q.B. 283).
186. [1998] EWCA Crim 597
187. [1999] Crim.L.R. 401.
188. [1998] EWCA Crim 597 at para. [115].
189. (1999) 30 March, Lexis transcript.
190. [1998] EWCA Crim 1247 at para. [60]: “Each member of the court has considered the whole of the summing-up and in particular those passages identified for the court's particular attention as demonstrating unfairness towards the appellant.”
191. (1999) 15 July, Lexis transcript.
192. [1998] EWCA Crim 2885 at para. [1]
193. [1999] Crim.L.R. 156. This interpretation of the case is reinforced by Roch L.J.'s statement, that might meet with the approval of many students: “We are going to hand down a judgment but we shall precis our full judgment for the benefit of those who have neither the time nor inclination to read the full judgment or who may not be able to get hold of a copy of it.” This passage is included in the Bailii transcript but, mysteriously, seems to have been edited out of the Lexis version. One wonders how and why.
194. (1998) The Times, 26 October.
195. Clark (2000) 2 October, unreported (appeal by solicitor convicted of murdering her children).
196. Lyons, Parnes, Ronson and Saunders [2001] EWCA Crim 2860 at para. [1] per Rose L.J. (an appeal whose outcome wore an air of inevitability once the House of Lords handed down its judgment in Kansal (No. 2) [2001] UKHL 67.
197. [2001] 3 W.L.R. 1562
198. See also Benjafield [2002] UKHL 2 esp. at para. [6]).
199. (1998) 21 December, case no. 98/02930/X4
200. [1999] Crim.L.R. 575 (emphasis added).
201. [2000] EWCA Crim 49.
202. (2000) 21 December, Lexis transcript.
203. [2001] EWCA Crim 2715 at para. [9].
204. [2001] EWCA Crim 2789 at para. [57].
205. See also Dimsey [2000] Q.B. 744: “This is the judgment of the court, to which all three members have contributed equally (sic).”
206. [1996] EWCA Crim 282 at para. [12].
207. See also Bosson (1998) 21 December (theft and handling), McCredie and French [2000] B.C.L.C. 438
208. Elliott [1999] E.W.C.A Crim. 2069 where it is unclear why we need to be told that all members of the court have contributed to the composition of the judgment, and Carroll [2002] EWCA Crim 471 at para. [6], per Johnston J. In Davies (1995) 3 November (transcript nos. 94/4098/S2 ff.) Swinton Thomas L.J. felt it necessary to emphasise, “The judgment which we are about to give is the judgment of the court, as is the case in all criminal cases, and each member of the court has contributed to it. Due to its length we propose to read part of it each, but it nonetheless is one continuous judgment” (p. 3).
209. By way of example, on the day of writing, of the 21 new criminal law approved judgments on “Casetrack”, no less than three omit to mention the name of the judge who handed down the judgment: see Pearce [2001] EWCA Crim 2834
210. Rooney [2001] EWCA Crim 2844
211. and Carass [2001] EWCA Crim 2845.
212. See notably, M. Mead, Growing up in Samoa (1928: New York, Morrow).
213. For an informed account of this extraordinary tale of academic gullibility, sloppy fieldwork and self-deception, see the work by the Australian anthropologist Derek Freeman, The Fateful Hoaxing of Margaret Mead: A Historical Analysis of her Samoan Research (1999, Boulder: Westview Press).
214. See “The Rhetoric of Results and the Results of Rhetoric: Judicial Writings” (1995) 62 U. Chi. L. Rev. 1371. The paper was written with the assistance of her three law clerks– another development that will need to be watched in this country.
215. 62 U. Chi. L. Rev., at p. 1377.
216. 62 U. Chi. L. Rev., at p. 1378.
217. See, e.g., G. Gunther, Learned Hand: The Man and the Judge (New York, Knopf, 1994) esp. at p. 298
218. Markey, “On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand” (1988) 33 S.D.L.Rev. 371 esp. at pp. 379–380.
219. The Rhetoric of Results, at p. 1380.
220. In Judicial Configurations, note 1 above, I draw upon French material that rather corroborates this account. Of course, there is a contrary school of thought which would contend that the true purpose of court judgments is not to provide lawyers with an ersatz literature or to furnish academics with an ideal text to pick apart, but is much more prosaic and utilitarian: see, e.g., Frederick Schauer, “Opinions as Rules” (1995) 62 U. Chi. L. Rev. 1455.
221. “What Borges can teach us”, in Fragments on Law-as-Culture (Deventer, W.E.J. Tjeenk Weillink, 1999) p. 69.
222. “Torticles” (1991–1992) 6/7 Tulane Civil Law Forum 105, 110.
223. “The Common Law and the Civil Law–A Scot's View” (1950) 63 Harv. L. Rev. 468, 470.
224. [1947] A.C. 156, 175.