Long Judgments

I don’t think I’ve ever had a client who wasn’t surprised to hear it might take the judge an hour or two to read out judgment, or that in writing, it would likely be much longer.

As lawyers we become used to the conventions at play when a judge hands down judgment:

• the terrible portent of the early compliment (“…X should be assured that counsel has argued every conceivable point with tenacity”, often met by thumbs up from the back row, as the lamb is led to slaughter);
• the ability of some judges to maintain neutrality and suspense until almost the very last paragraph;
• above all, the futility of trying to take a written note.

My own handwriting is barely legible at the best of times; after an hour’s furious scribbling it looks like I’ve invented my own version of shorthand. It isn’t easy making out grounds of appeal from a selection of dashes, question marks and words which could be able, apple or appal. There is of course the option of typing on a laptop, except for lawyers who type like frantic woodpeckers, hitting the keys so hard it’s almost impossible to hear the judge.

But what is the point of a judgment anyway?

There are of course several sensible answers to this question. A judgment should, as Lord Hoffman once put it, tell the story; it should identify the issues, summarise the law, explain what findings of fact the court has reached and (the difficult bit) set out the evidential basis for those findings.

A judgment should explain the judge’s reasoning in the same way that a candidate sitting a maths exam should set out the workings and not just write ‘42’. And it’s this stage, setting out the reasons, which is most difficult, building a bridge between the facts (as you have set them out) and the outcome (as you are going to order). It is more difficult to write a judgment than it is to write a skeleton arguments . It isn’t a matter of jotting down “it was bluebell time in Kent” and hoping the rest will flow.

It’s a feature of human nature that, unlike in sport, the successful party isn’t particularly interested in knowing why he has won. By contrast, every losing litigant wants to understand why they’ve lost, and to understand if they have received a fair hearing. Sir Robert Megarry put it brilliantly in a 1982 talk:

“…the most important person in court is the litigant who is going to lose. When the end comes, is he going to feel that he has had a fair run and a full hearing? One of the most important duties of any court is to send away a defeated litigant who feels no justifiable sense of injustice in the operation of the judicial process. It is to him that the judgment of the court must primarily be addressed”

But why are judgments so long?

Earlier this year I wrote an article about a 2020 High Court decision involving financial relief for a child which ran to 42,000 words, just shy of the length of The Great Gatsby.

Before his retirement, Mr Justice Charles was famous for his erudite but extremely long judgments: J v J [2009] EWHC 2654 (Fam) ran to 61,000 words, almost exactly the average length of the modern novel (64,000 words according to Amazon). I have recently been preparing a talk on non-matrimonial assets which has involved wading through similar magnum opuses (magnum opi?), which conclude with the court reaching a broad brush outcome (e.g. 60/40 split).

There may be a postgraduate study somewhere which analyses the issue scientifically (‘Inflation in the Length of Civil Judgments From 1870 to date’). I can’t provide any evidence to back this up but I maintain the firm belief (beliefs should be firm where there’s no evidence) that over the span of the last 150 years, judgments have progressively got longer: Victorian judgments (or at least the reports of Victorian judgments) rarely took up more than a dozen pages and, as the 1970s and 1980s, even complex litigation resolved in judgments of at most 20 pages.

Famously, in the House of Lords tax case of Brumby v Milner [1976] 1 WLR 1096, Lord Wilberforce’s opinion ran to a single page. The entire report is about three pages long. Anyone who has considered the nuances of the contrasting opinions of the modern House of Lords in Miller; McFarlane [2006] UKHL 24 and Stack v Dowden [2007] UKHL 17 (to take the leading cases in financial remedies and TLATA) will yearn for such economy and clarity.

This trend towards longer and more discursive judgments may reflect a number of things: a more litigious society, parties who come to court (often unrepresented) with greater expectations of what the judge should deal with, with less deference, or appreciation of the judge’s position? In my field of financial remedies, taking the long view of the last 50 years, there is generally speaking more to fight about in terms of home ownership, investments in shares and other more risky instruments (e.g. crypto-currency). The law post-White has become fundamentally more complicated.

But it also boils down to is the increased reliance on written submissions, together with judges becoming computer literate, whereby judgment writing has developed from oral advocacy and a fountain pen, to Word documents cutting and pasting from Adobe bundles. Also, to adapt the famous epigram of Blaise Pascal, judges today do not have the time to write shorter judgments.

At an appellate level, there have been some moves to reverse this trend, in recognition of the fact that judgments have to be read, instructions have to be taken, and this all costs money. In Neumans LLP v Andrew Andronikou & Ors [2013] EWCA Civ 916 Lord Justice Mummery gave the lead judgment of the Court of Appeal, suggested a way that the Court of Appeal could assist in ensuring that legal costs are kept to a minimum by judges keeping their judgments as short as possible.

[39] … 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.”

A product of this appellant self-restraint is BS (Congo) v The Secretary of State for the Home Department [2017] EWCA Civ 53 where Lady Justice Raffety succinctly dealt with an immigration appeal.

Plainly, different considerations arise at first instance, when the court does not have the option of applying such a broad brush. I do not suggest that trial judges should try to ape their Victorian ancestors and hold to fewer than ten pages, but that it might be time to check the tendency of judgments to increase in length. Particularly so, bearing in mind the impact of COVID: as the President of the Family Division noted in ‘The Road Ahead’

If the Family Court is to have any chance of delivering on the needs of children or adults who need protection from abuse, or of their families for a timely determination of applications, there will need to be a very radical reduction in the amount of time that the court affords to each hearing. Parties appearing before the court should expect the issues to be limited only to those which it is necessary to determine to dispose of the case, and for oral evidence or oral submissions to be cut down only to that which it is necessary for the court to hear.

Alexander Chandler

26 April 2021