Judges should be applauded for trying to make judgments accessible and enjoyable – as long as they get the tone right.
Few people can say they enjoy reading judgments. But some judges try to make their judgments more enjoyable for readers.
When I was a student, I always enjoyed reading (and later meeting) Lord Denning, master of the rolls from 1962 to 1982. His literary skills were aptly summarised by Sir Stephen Sedley in an obituary for the Guardian (1999). ‘Denning’s judgments in case after case performed the feat, achieved by no other judge, of speaking directly and compellingly to ordinary people in well-constructed and lucid prose,’ wrote Sedley, a highly literate appeal judge himself. ‘For all the professional smirks generated by Denning’s famous opening line in a judgment about an appalling motor accident (“It was bluebell time in Kent”), this accessibility of language was the rock on which his popularity and influence were built.’
But attempts at writing an enjoyable judgment sometimes backfire. Of Mr Justice Peter Smith’s decision to include a secret message in his judgment on The Da Vinci Code (2006), the least said the better.
Much more promising are the contributions of Sir Alan Ward, who delivered his last judgment in the Court of Appeal earlier this year. The website Legal Cheek recently selected 10 of Ward’s best-loved lines. Top of the list, and often misquoted, was an extempore comment Ward made when deciding whether a businessman who had borrowed too much from several banks should have permission to appeal: ‘The claimant accordingly engaged management consultants to stave off – and here I must warn myself not to fall into the error of Dr Spooner’s ways – to stave off the warring bankers.’
Ward made some more considered comments in Sutton v Hutchinson (2005). ‘The appellant is a lap dancer,’ he observed. ‘I would not, of course, begin to know exactly what that involves. One can guess at it, but could not faithfully describe it.’ After explaining that the respondent had paid the appellant for sexual services, Ward continued: ‘Whether or not rule 2 of the Spearmint Rhino club had been breached, requiring that you could get no satisfaction, we do not know and fortunately do not have to decide.’
But Ward’s command of written English also ensured that his advice to litigious neighbours hit home. In Faidi v Elliot Corporation (2012), he remarked: ‘Not all neighbours are from hell. They may simply occupy the land of bigotry. There may be no escape from hell but the boundaries of bigotry can with tact be changed by the cutting edge of reasonableness skilfully applied by a trained mediator.’
Another highly literate judge was Lord Rodger of Earlsferry, who died of a brain tumour in 2011. A book of essays in his memory, published this summer by Oxford University Press, records him asking a nurse whether an operation to relieve the symptoms of his final illness would restrict his ability to speak Latin fluently. The nurse replied that she had never been asked this before.
It was Rodger who explained in HJ (Iran) v Home Secretary (2010) that the right to live freely and openly as a gay man involved a wide spectrum of conduct. ‘Just as male heterosexuals are free to enjoy themselves playing rugby, drinking beer and talking about girls with their mates, so male homosexuals are to be free to enjoy themselves going to Kylie concerts, drinking exotically coloured cocktails and talking about boys with their straight female mates.’
Typically, Rodger began his next sentence with a Latin tag, mutatis mutandis. Since Rodger’s death, the judge most likely to make classical references in court is Lord Justice Laws.
It takes a brave judge to stray from the straight path of facts/law/decision and venture down the winding road that ends in legal literature. One promising new candidate is Mr Justice Haddon-Cave.
Of course, a dispute over the mortal remains of a former king of England – found last year under a municipal car park – was something of a gift. Last month, the judge rightly decided that where those remains should be reburied was a question that deserved further argument. He ordered, apparently without irony, ‘skeletons to be exchanged one week before the substantive hearing’.
But there was more. Richard III’s death brought to an end the Wars of the Roses and the Plantagenet dynasty, heralding the advent of the Tudor era. Haddon-Cave said it was ‘ironic that the Wars of the Roses appear to be returning whence they started, the Temple. Legend has it that John Beaufort and Richard Plantagenet picked the symbolic red and white roses in Inner and Middle Temple gardens’. An apt reference to Shakespeare followed.
It is the little touches that make judgments enjoyable. A week later, the same judge ruled on a planning dispute over a new golf course. His last paragraph, paying tribute to the lawyers, was headed ‘19th hole’.