Appeal court judges have sought to undermine colleagues writing lead judgments and Supreme Court judges have “reverted to barrister mode” to argue their views, according to the president of the Supreme Court.
Addressing the annual conference of the Supreme Court of New South Wales in Sydney, Australia, earlier this month, Lord Neuberger argued for openness and accessibility to the courts, especially in an era when judges were under pressure to be “creative” with the law.
In a speech that contained rare insights into the process of judicial deliberations, Lord Neuberger admitted to skimming skeleton arguments before a trial, although he said the approach risked “not really being on top of things until after the hearing”.
The alternative, he argued, was to read all the case documents, at the risk of “wasting much time”, since once cases began, “most of the documentation turns out to be irrelevant, and some of the points raised in writing are often dropped”.
He said judges broadly fell into two camps: those who read everything, whom he dubbed “Pre-Raphaelites”, and those who “read very little” – including himself – whom he labelled “Judicial Impressionists”.
Even in the appeal courts, documents and issues have not been “pared down” as one might expect, he said: “Life is not quite like that. Pre-Raphaelites are still often faced with a mountain of papers, most of them irrelevant.”
In the interests of accessibility, he suggested that the practice of the Supreme Court of providing a two-page written press summary of judgments, as well as a “concise oral televised summary”, could be introduced into the lower courts. “This might be a practice worth adopting… even if it is limited to certain decisions of particular importance,” he said.
Lord Neuberger said he “emphatically” disagreed with those who argued that discussions between appellate judges conflicted with the idea of judicial independence. He had encouraged greater discussion between judges in the Supreme Court after hearings and this often helped produce “consensus or changes of mind”, he revealed.
However, sometimes more discussion was “pointless”, since “two judges may have circulated judgments coming to different conclusions, and, at a subsequent meeting, each simply reverts to barrister mode and seeks to persuade colleagues that his view is the right one”.
Still on the subject of post-trial discussion, Lord Neuberger described occasional attempts at undermining the judge tasked with writing the lead judgment for appellate courts, where, for instance, “a keen, convinced or proselytising judge” wanted “to try and persuade his colleagues to come round to his views”.
He said: “A judge other than the appointed lead judge may occasionally pre-empt the lead judge by sending round a draft which is intended to change minds. Other judges wait for the lead judgment and then try and persuade others by sending round a draft which is aimed at undermining the lead judgment in a way calculated to drum up support.”
But either tactic risked having the reverse effect, “particularly if it is obvious what the judge is doing or he expresses himself too forcefully: many judges are counter-suggestible”.
Lord Neuberger approved of the practice of circulating draft judgments confidentially to advocates, even where “counsel come back with larger complaints” about the judgment, such as “a suggestion that a particular argument had not been properly understood”. This was a “useful development”, he said, “provided that it is not misused by the losing party’s lawyers to try and re-argue the case”.
Judges were in an ever more difficult position as they tried to “ensure that the law is certain, simple and clear” and were confronted with “the need for the law to keep up with societal, moral, commercial, and technical developments”, Lord Neuberger observed. But judges should be cautious about “unintended consequences” arising from judge-made law, he warned, because “unlike the legislature we are normally not able to survey the whole landscape”.
He concluded: “Lord Reid famously observed, when referring to the view that judges declare the law rather than play any role in making it, that ‘we do not believe in fairy tales any more’. And a world in which it is acknowledged that judges do more than just reveal pre-existing law, is one in which they are rightly subject to greater scrutiny.”