Judgments seldom make easy reading, even for lawyers. The judgments that really matter, by which I mean judgments that potentially introduce new principles or modify existing ones, tend to be lengthy and cast in abstruse language. That judgments are often difficult to understand is due in part to the simple fact that the law itself is complicated and technical. To that extent, the complexity of judgments is a fact of life.
- Daniel Hoadley is a barrister and law reporter (Incorporated Council of Law Reporting for England & Wales).
But, it was encouraging to hear Lord Neuberger, the newly appointed president of the Supreme Court, say that more can and should be done to make judgments more ‘accessible’.
‘Without judgement there would be no justice. And without judgments there would be no justice… [i]t is therefore an absolute necessity that judgments are readily accessible. Such accessibility is part and parcel of what it means for us to ensure that justice is seen to be done.’
Accessibility rests, said his Lordship, on two fundamental principles. The first is that judges give publicly available, reasoned judgments. The second is the reliable dissemination and reporting of those judgments.
The public are the real audience
Lord Neuberger made the point that the fact judges, lawyers and academics are trained to read judgments is no excuse for poor judgment writing. Judges and lawyers are only part of the audience – ‘the public are the real audience, even if the public seems happily indifferent about almost all court judgments’. Simple adjustments could improve clarity, such as by summarising the essential facts and decisions of law at the beginning of judgments and by adopting clearer structures and signposting throughout.
Lord Neuberger advanced ‘more controversial suggestions’ to improve judgment clarity. The first was for judges to cut the length of their judgments – ‘brevity is a virtue, but, like all virtues, it should not be taken to excess.’
His second suggestion was for the more limited use of concurring and dissenting judgments in favour of an increased use of single majority speeches. This suggestion has much merit. If it’s difficult to decipher one judgment, comprehending three, five, seven judgments which all reach the same destination via different routes increases the challenge tenfold (try identifying the House of Lords’ reasoning in R v Bow Street Magistrate, ex p Pinochet Ugarte (No. 3)  UKHL 17;  1 AC 147, for example).
But, in the face of the perceived indifference by the public to court judgments, why should judges strive for clarity in their judgments?
For Lord Neuberger, there are two answers to that question. The first answer is that ‘[t]he need, the duty, to provide a reasoned judgment is a well-established “function of due process, and therefore of justice”’. In other words, a crucial component of the right to a fair trial is that ‘litigants need to understand why the court arrived at its decision’ (a point advanced in opposition to the government’s proposals to expand secret courts). The second answer, which drives at a more extrinsic concern, is that a ‘clearly reasoned judgment enables to public to understand the law and to see what is being done and said by judges in the courts’.
The due process and awareness functions of judgments gather real practical force, as Lord Neuberger recognised, in the context of self-represented litigants. The Civil Justice Council (CJC) correctly warned last year that as result of cuts to the legal aid budget, the number of individuals appearing in court without profession representation would increase on a considerable scale. And, as the CJC pointed out, too many self-represented litigants are failing in court due to inexperience in ‘litigious matters’. For this group, perhaps more than any other, access to free or low-cost, reliable judgments is essential.
BAILII and judgment-enhancement
In his lecture, Lord Neuberger said that clearly written judgments are not enough. Open justice also depends on judgments being accessible to the widest possible audience. This is in turn depends on the effective dissemination and reporting of judgments. The two types of reporting, for Lord Neuberger, are not the same. The speed and comprehensiveness of coverage offered by BAILII, at absolutely zero cost to readers, has revolutionised judgment dissemination in a way that is ‘hard to articulate’.
But, the benefit ushered in by the BAILII database ‘represents a challenge as well as a benefit.’ This is because merely being able to get your hands on a judgment, particularly if you intend to use it in litigation, is only half the battle. A judgment that might at first appear useful may no longer be good law. On top of this, with so much freely available material, how are you supposed to know when to stop looking?
Lord Neuberger warned:
‘The cost of legal advice and representation will increase if advisers and advocates have to trawl through BAILII… to make sure they have missed no judgment which may be relevant to their case.’
Classic, scholarly law reporting (such as that carried out by the Incorporated Council of Law Reporting and LexisNexis) complements the judgment-dissemination role of BAILII by enhancing judgments that effect legal change with expertly drafted summaries and by ensuring the contents of those judgments is accurate and reliable.
Lord Neuberger said:
‘Scholarly law reporting, judgment enhancement, is of particular importance because of the role it plays in developing the corpus of law… The common law develops gradually through precedent, which is of course contained in judgments, and precedent is refined over time. It changes as society changes; principles are adapted and applied. The common law could not do this without scholarly law reporting.’
The fusion of BAILII and classic scholarly law reporting is a good thing for lawyers, academics and judges. But, without closer cooperation between the judgment givers, disseminators and enhancers, self-represented litigants are no better off than they are now.
Inroads have been made in some quarters, such as by the new linking relationship between BAILII and the ICLR, but more can still be done to ensure that the public, indifferent though they may be, have ready and low-cost access to the materials they need, in a language they can understand.