“No Judgment - No Justice” by Lord Neuberger
At the First BALII Lecture, Lord Neuberger, who is the substantive president of the Supreme Court of the United Kingdom, made the following pronouncement on the elements that should be contained in every judgment.
“11. …But every Judgment should be sufficiently well-written to enable interested and reasonably intelligent non-lawyers to understand who the parties were, what the case was about, what the disputed issues were, what decision the judge reached, and why that decision was reached…”
In a permission to appeal Oral Hearing this was the two paragraphs approved judgment delivered by a judge who sworn oath to adminster justice.
"1. THE JUDGE: This is an application by [Appellant] for permission to appeal a decisionof [Lower Court Judge], he having already attempted to obtain permission to appealon paper. That was refused on paper, not by myself but by the permanent judge of thiscourt.
2. [Appellant] has gone in for a deal of research and has put his case very fully on paper and I do not propose to read out everything that he had to say, but it is all included in thebundle he prepared for the appeal. I regret to say that, having heard in particular andread the submissions of [Counsel to Respondent], I am afraid that my finding is that the grounds of appeal are not well-founded, that there is no reason therefore to give permission toappeal for argument and, permission being refused, that is the end of the matter."
The judge delivered no judgment in accordance with Lord Neuberger. There was no reference in the judgment of the Respondent’s name only the name of Counsel which was redacted above. There was no reference as to what the case is all about. There was no message as to the disputed issues in which the judge accepted the argument of Counsel. There was no clear understanding of how the judge reached his decision.
There was therefore no reasoned judgment and/or proper judicial consideration of the application before the judge for the judicial duty placed upon him to have been lawfully discharged in accordance with the duty of a reasoned judgment in the guidance provided by Lord Justice Henry in Flannery & Anor v Halifax Estate Agencies Ltd [1999] EWCA Civ 811.
"We make the following general comments on the duty to give reasons:
(1) The duty is a function of due process, and therefore of justice. Its rationale has two principal aspects. The first is that fairness surely requires that the parties - especially the losing party - should be left in no doubt why they have won or lost. This is especially so since without reasons the losing party will not know (as was said in Ex p. Dave ) whether the court has misdirected itself, and thus whether he may have an available appeal on the substance of the case. The second is that a requirement to give reasons concentrates the mind; if it is fulfilled, the resulting decision is much more likely to be soundly based on the evidence than if it is not.
(2) The first of these aspects implies that want of reasons may be a good self-standing ground of appeal. Where because no reasons are given it is impossible to tell whether the judge has gone wrong on the law or the facts, the losing party would be altogether deprived of his chance of an appeal unless the court entertains an appeal based on the lack of reasons itself.
(3) The extent of the duty, or rather the reach of what is required to fulfil it, depends on the subject-matter. Where there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate simply that he believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. This is likely to apply particularly in litigation where as here there is disputed expert evidence; but it is not necessarily limited to such cases.
(4) This is not to suggest that there is one rule for cases concerning the witnesses’ truthfulness or recall of events, and another for cases where the issue depends on reasoning or analysis (with experts or otherwise). The rule is the same: the judge must explain why he has reached his decision. The question is always, what is required of the judge to do so; and that will differ from case to case. Transparency should be the watchword."