As is now well known, we’re going to have more judgments published. In January the President of the Family Division, Sir James Munby, issued two sets of practice guidance on the publication of judgments, one for the family courts and one for the Court of Protection. The aim of the guidance, which is now in effect, is to encourage far more court judgments to be published, in order to aid ‘transparency’. The ultimate purpose, of course, is to inform the public as to the workings of the courts, to counter the charge that they operate a system of secret and unaccountable justice.
I and other legal commentators have already noted that one or two judgments have been published since the guidance came into effect that may not have been published previously.
And I have, of course, already written here on this subject. In this post I said that judgments must be understood, not just by lawyers but also by non-lawyers, for example by the use of simpler language. I have been giving this further consideration and I think that the format that judgments take could also improve matters.
And it seems that some judges are already giving consideration to the format of their judgments. For example, in the recent Court of Protection case Westminster City Council v Sykes (which, incidentally, was of considerable media interest, involving a former Labour politician), the District Judge (with the wonderfully Tolkien-esque name of Anselm Eldergill) included a paragraph outlining the structure of his judgment, along with copious footnotes. Unfortunately, he did not include paragraph numbering, which would have made the judgment considerably easier to read.
The other day on Twitter I commented that all judgments should come with a headnote, explaining briefly what they are about. This would mean that a quick glance would be all that was required for you to know what the case involved, and whether the judgment was of interest to you.
Of course, my headnote idea was far from original. Within minutes of publishing my tweet I was kindly reminded by another Twitter user of a speech, given by President of the Supreme Court Lord Neuberger no less, in 2012 on the subject of judgments. In the course of that speech Lord Neuberger explained the need for clarity in judgments and made two suggestions.
Firstly, he suggested that judgments should have a short summary at their start. This, he said, would not just be of general benefit, but would particularly enable a non-lawyer to know the facts, the issues, and how and why they were resolved.
A second change worth considering, he said, would be for more judges to give better guidance to the structure and contents of their longer judgments. This could include such things as a table of contents à la District judge Eldergill and others, and appropriate headings throughout the judgment, something that does now seem pretty standard in most of the judgments I read.
Lord Neuberger also made what he called two more controversial suggestions. Firstly, that judges try harder to reduce the length of their judgments, and secondly that there be fewer and shorter dissenting judgments, in cases where the judges involved do not all agree, to make it easier to see what had actually been decided. Although they are not strictly to do with the format of judgments, I agree with both ideas.
The rest of Lord Neuberger’s speech is well worth a read. In particular, and relevant to our President’s recent practice guidance, he warns of the problems caused by a plethora of apparently relevant, but ultimately unimportant reported cases. Will this be a problem caused by the guidance?
But I have digressed from the point of this post, which is that judgments should be presented in a clearer format. Headnotes, a list of contents (for longer judgments), headings, numbered paragraphs and footnotes (or cross-references, hyperlinked where the judgment is published online) are all excellent ideas. Surely, now would be a good time to grasp the nettle and insist that all judgments should have these things?