Evolution not revolution

Like most apex courts, the UK Supreme Court has little to say in any given year. According to my own exhaustive research – checking the highest sequentially numbered neutral case citation on BAILII – it handed down 52 judgments in 2023, and 42 in 2024; negligible numbers compared with over 1,500 judgments handed down by the Court of Appeal Civil Division in each of those years. This is hardly unexpected. After all – with a few exceptions – only cases that have already been through at least one appeal, yet still raise an arguable point of law of general public importance, are going to be before the Supreme Court. 

In terms of numbers – and as the end of the line for most appealed cases – the Court of Appeal probably exerts more day-to-day influence on English law. But when the Supreme Court does weigh in on an issue, it is likely to be of fundamental significance. 

These companion volumes, prepared to mark the Supreme Court’s 15th anniversary in October 2024, address some of the key cases tackled during its first decade and a half. Edited and curated by two experienced and knowledgeable academics, both volumes take the form of collections of essays on various important cases that the court has determined. The judgments were chosen through collaboration between editors and the writers. 

The Public Law volume is substantially longer than its companion; testament, perhaps, to the number of significant constitutional issues which have arisen in recent years. Divided into Constitutional, Administrative and Human Rights sections, the chapters cover a range of judgments. The obvious ones are all here: Cart and Privacy International on ousting judicial review; Public Law Project and UNISON on the respective powers of courts and government; Horncastle and Hallam on interpreting convention rights; and, of course, the blockbuster Miller decisions which shaped the course of Brexit. There are also some less heralded, but equally important judgments, such as Moseley on consultation duties; Re Allister on the interaction between different constitutional statutes; and Steinfeld & Keidan on the steps to be taken to remedy a discriminatory effect in legislation. 

The essays are generally succinct, informative and clear. One can, perhaps, argue about which judgments should be included – no Pinnock v Manchester City Council? Or Kennedy v Charity Commission? – but these are personal preferences. In their concluding chapter, the editors take a wider view and consider what the judgments say about the Supreme Court as an institution. Intriguingly, they suggest that trends show the court becoming more ‘conservative’, more legalistic and more deferential to the executive. It will be interesting to see what implications this might have in another 15 years.

The Private Law volume is much the same in terms of structure. Divided into Tort, Contract and Unjust Enrichment, and Property Law and Equity, the work illustrates the sheer breadth of private law subjects which the Supreme Court has considered. The earliest judgment referenced is the banking charges decision in Office of Fair Trading v Abbey National, handed down weeks after the Supreme Court was established, but there have also been significant decisions on: causation (Sienkiewicz v Greif); the horizontal effect of human rights (McDonald v McDonald); and contractual penalty clauses (ParkingEye v Beavis). The essays are well chosen, and the analyses thoughtful and clear – and in the case of the negative critique of McDonald, positively blistering. 

What emerges is a sense of a court that is trying to impose its stamp on private law, while being reluctant to appear radical. As the editors put it in their conclusion, the court presents ‘as wanting to keep up with the modern zeitgeist’, yet it simultaneously tries to stress that its judgments are evolutionary, rather than revolutionary. The reader can, one suspects, make up their own mind on this.

These two volumes – which benefit from being read together – provide a helpful snapshot of the Supreme Court’s output and give a sense of where it stands as an institution. Arguably, it is more transparent and more visible, which can surely only be to the good of the court and the law as a whole. Just past its 15th birthday, the court has largely avoided awkward and diffident teenage years, and is instead confident, robust, occasionally outspoken, and able to hold its own as it heads towards its third decade. 

James E Hurford is a solicitor at the Government Legal Department, London