Judicial clarity and white leopards

Family Law|February 23rd 2015

When a certain Marilyn Stowe recommends a case, you know it’s worth a read.

Judgments in family proceedings come in many flavours. Some are purely factual, some break new ground, some are quite informative and some are downright impenetrable. The judgment to which Marilyn referred (she called it a “must-read”) was Mr Justice Mostyn’s in JL v SL. Most judgments of his are worth a read. This fell into the ‘informative’ category, but it was also a model of clarity, and it is that aspect that I want to discuss here.

Why is clarity in a judgment important? After all, judgments are only going to be read by lawyers, aren’t they? Well, yes and… no.

It is true that many judgments are unlikely to be read by anyone without a legal qualification or experience in the law. But even where this is the case, the judgment needs to be sufficiently clear so that lawyers will understand whether it sets a precedent to be followed in later cases and, if so, exactly what that precedent is. Unfortunately, over the years many cases, particularly those dealing with financial issues following divorce, have given rise to great swathes of learned discourse arguing over precisely what the judges were saying. Sometimes, the law can be far from certain.

But many judgments are also now read by non-lawyers (especially now that we are in the age of the litigant in person). Surely, then, it is now even more important that judgments are as clear and as easy to understand as possible?

We are always being reminded of the need for ‘transparency’ – after all, that was precisely the reasoning behind the Presidents guidance last year requiring the publication of more family court judgments. But what is the point of publishing judgments if those who read them can’t understand them?

In an ideal world the average passenger on the mythical Clapham omnibus should be able to read and understand all family judgments. Whether that is an attainable aim I’m don’t know, but surely all judges should aspire to it?

Of course, the number of non-lawyers reading family judgments is always likely to be quite small, but it does include an important group: the media, in particular newspaper reporters. After all, what most non-lawyers learn of the family justice system they do so through the intermediary of a member of the fourth estate. Now, I know that many reporters have an agenda, and one that may well be unfriendly towards the family justice system, but if judgments leave little room for argument over what was decided and why, then that surely leaves such reporters with less room to manoeuvre.

Oh, and while I’m about it, I’ll repeat a plea that I’m sure I’ve made before: why can’t all judgments include a short head note, preferably in plain English, explaining what the judgment is about? At least then if reading the full judgment is going to be hard work, we will know in advance whether it is going to be worth it.

And as to the white leopards reference in the title to this post, I would respectfully refer the reader to paragraph 40 of Mostyn J’s judgment.

Photo of snow leopard by Trisha Shears via Flickr

Author: Stowe Family Law

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