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Saturday, 30 November 2013

Impeccably (short) judgments

Anyone who’s ever ground their way through a lengthy appellate judgment will appreciate the sentiments of the English Court of Appeal in Neumans LLP (a firm) v Andronikou & ors [2013] EWCA (Civ) 916.

The case dealt with an argument about money. Neumans, a firm of solicitors, lost their case, and appealed.

It seems the Mummery LJ metaphorically rolled his eyes, gritted his teeth, and eyed the large piles of documents to be considered upon the appeal, before deciding that no more trees need die recording words on paper:

[32] The court below and this court have received detailed submissions from each side on that question. Morgan J commented that counsel's submissions to him “were elaborate and thorough.” So were the submissions in this court. Morgan J said that to do justice to them he needed to explain his reasons at “what had become considerable length.” Does this court need to do the same all over again?

[33] In my judgment, the order made by Morgan J on the basis of 140 paragraphs of exposition and explanation is “dead on” for the reasons given by him. He set out in meticulous detail all the relevant facts, the legal materials, the rival submissions and the reasons for the conclusions reached by him on every point taken by Neumans.

In case any advocate were ever unsure if the adage less is more isn’t popular with the Bench, Mummery LJ made it clear brevity rules.

Lord Wilberforce and appeals from impeccable judgments

[36] What sensible purpose could be served by this court repeating in its judgments detailed discussions of every point raised in the grounds of appeal and the skeleton arguments when they have already been dealt with correctly and in detail in the judgment under appeal? No purpose at all, in my view.

[37] This is a case in which this court is justified in following the excellent lead of Lord Wilberforce in Brumby v Milner (1975) 51 Tax Cases 583. In a one page tax opinion, with which the other members of the Appellate Committee agreed with only minor additions, Lord Wilberforce said that he would not attempt a detailed analysis or refer to such authorities as might, possibly, be relevant, since that had been done to his complete satisfaction by the Court of Appeal affirming the judgment of Walton J. He concluded at p.612 that:

“…to restate the argument in words of my own, even if this were to result in a difference of formulation, would not be productive of advantage, and I am more than content to adopt the single judgment of the Court of Appeal delivered by Lord Russell of Killowen.”

[38] It has been said, more in jest than with justice, that “officials create work for other officials” and that bureaucracies generate work to justify their continued existence. Judges are not officials. The judiciary is not a bureaucracy. Nor is it in the business of earning by churning. The proper administration of justice does not require this court to create work for itself, for other judges, for practitioners and for the public by producing yet another long and complicated judgment only to repeat what has already been fully explained in a sound judgment under appeal. If the judgment in the court below is correct, this court can legitimately adopt and affirm it without any obligation to say the same things over again in different words. The losing party will be told exactly why the appeal was dismissed: there was nothing wrong with the decision appealed or the reasons for it.

[39] I am content to adopt, without reservation, the judgment of Morgan J, to affirm his order and to dismiss the appeal from his decision. Partly out of admiration for the input lavished on the outstanding legal submissions with Appendix (divided, for instance, into 11 Main Parts, then sub-divided into 100 paragraphs with some of them sub-sub-divided into .1, .2 and so on) and partly as an aid to practitioners and courts in future cases, I would propose that this court pieces together a brief summary of the main points, as described at length by Morgan J. It can do so, as in an old style judgment, by setting out short legal propositions relevant to this case and the conclusions reached by applying them in this case. It does not begin to attempt to cover all the law on administration and liquidation expenses. That would not be a proper exercise in a judgment.

[40] One aim is to stem the soaring costs of litigants when their advisers have to spend too long working out what the law is. They may be faced with a multiplicity of separate, complex, discursive and (increasingly, imitating the style of subordinate legislation) cross-referential judicial pronouncements at different levels of decision, or at the same level of decision, but sometimes leading to the same overall result.

It’s probably too extreme to adopt the style quoted by Justice Roslyn Atkinson in her 2002 paper Judgment Writing:

In the US tax court, constituted by Judge Murdoch, it is reputed that a taxpayer testified, “As God is my judge, I do not owe this tax”. Judge Murdoch replied, “He is not, I am; you do”.

In most cases, courts do their best, but sometimes they have a lot to cover. The idea that a Court needs only state enough of the law to decide the case, without trying to cover the field on the relevant law, has a lot going for it. Here‘s to brevity!

1 comment:

Kyle McDonald said...

Thanks to the reader who offered this little gem...

“I agree that it is not necessary to reserve my judgment in this matter, for I have listened attentively for two days to the learned and lucid arguments of the very eminent counsel without, unfortunately, being able to understand any of them, and I have just listened to the most profound and luminous judgments of my learned brethren with still greater attention, but I regret to say with no better result. I am therefore, of the same opinion as they are and for the same reasons.” George Wilshere, 1st Baron Bramwell, 1808-1892, said between 1876 and 1881 whilst on the Court of Appeal and quoted by John George Witt KC, Life in the Law, published by Werner Laurie, London 1906, pp 118 – 119.