Published online by Cambridge University Press: 16 January 2003
This paper follows upon the author’s earlier paper in the preceding issue of the Journal which drew attention to the Court of Appeal’s growing practice of delivering composite judgments. It examines some of the wider issues cast up when courts ring the textual changes, adopting different permutations, and considers the somewhat tendentious matter of ‘judicial style’, a subject dear to some comparatists’ hearts. It explores the knotty question, glossed over even by many writers on precedent: what exactly is the virtue of the concurring judgment? It also considers how the quality of judgments may be affected by collaborative composition in a comparative context, taking in what little comparative evidence there is to inform the debate. It is futile to pretend that this paper offers final answers to any of these questions, for they raise issues of disconcerting complexity. Yet, to pass them over in silence would be scandalous.
This paper derives in part from an address delivered by the author on September 23, 2001 on the occasion of the 19th Annual Conference of the Australian Institute of Judicial Administration, held in Hobart, Tasmania.
1 See R. Munday, “All for One and One for All: The Rise to Prominence of the Composite Judgment within the Civil Division of the Court of Appeal”  C.L.J. 321.
2 Hassan  EWCA Crim 1727 is one recent example. True, the case concerned a conspiracy to import cannabis with a British street value of £44 million. However, the comparative ease with which the court dispatched the appellant's grounds of appeal does make one wonder why exactly Henry L.J. felt it necessary to make explicit, “This is the judgment of the court to which all members have contributed.”
3 E.g., Sutherland v. Hatton  EWCA Civ 76. For another example of a composite Court of Appeal decision that comes complete with a summary (“which forms no part of this judgment”), an index and three appendices, see R. (on the application of W) v. Mayor and Burgesses of London Borough of Lambeth  E.W.C.A. Civ 613. The occasional Divisional Court case, too, incorporates a summary and index: e.g., Hoverspeed Ltd. v. H.M. Customs & Excise  E.W.H.C. (Admin.) 1630. Appendices have figured in several cases: e.g., Morgan Grenfell & Co. v. Isituto per i Servizi Assicurativi del Commercio  EWCA Civ 1932.
4 Thus, in English v. Emery Reimbold & Strick Ltd.  EWCA Civ 605, three “conjoined” appeals in which the Court of Appeal—needless to say, in a composite judgment “to which all members (had) contributed”—gave guidance on a judge's duty to give reasons, Lord Phillips M.R. added a short postscript underscoring for the slower of understanding “the two lessons to be drawn from these appeals” (at ). See also, Fox v. H.M. Customs & Excise  E.W.C.A. (Admin.) 1244.
5 See, e.g., R. Munday, “‘Official’ Law Reports, Neutral Citation and other Curiosities: Another Visit to the Grand Canon” (2001) 165 J.P.N. 342.
6 See R. Munday, “Law Reporting: Maintaining a Literate Common Law” (2002) 166 J.P.N. 284, 288-290. Lord Rodger of Earlsferry, in contrast, has suggested that, if anything, in view of the attention now paid to paragraphing thanks to neutral citation, “a short succession of short, staccato paragraphs can, whether intentionally or not, give a judgment an added appearance of decisiveness” (“The Form and Language of Judicial Opinions” (2002) 118 L.Q.R. 226, 236-237). Maybe so, provided that their number is strictly rationed. Eerily, when a Court of Appeal determines, for whatever motive, to deliver its reasons compositely, but “in very short form”, with half a dozen sub-headed sections, all but one comprising only a single terse paragraph, the English lawyer's sense of dépaysement is surely complete: see R. (on the application of Boulton) v. Leeds School Organisation Committee  EWCA Civ 884 at  per Sedley L.J.
7 Even in criminal cases it is possible to detect an increased procedural fluidity. In Hanratty  EWCA Crim 1141, for instance, a vast judgment, the three members of the Court of Appeal delivered a single, composite judgment but took the unusual course of dividing up the labour, with the Lord Chief Justice delivering paras. 1-74 and 203-215, and with Mantell L.J. being responsible for paras. 75-128 and Leveson J. for paras. 129-202. At the opposite end of the spectrum, in Andrews  EWCA Crim 2885 (according to the “Bailii” version of the transcript) Roch L.J. provided a precis of the full judgment “for the benefit of those who have neither the time nor inclination to read the full judgment.”
8 Cited note 3 above.
9  EWCA Civ 76 at -.
10 “What Borges can Teach Us” in Fragments of Law-as-Culture (1999: Deventer, W.E.J. Tjeenk Willink p. 76).
11 “The Form and Language of Judicial Opinions” (2002) 118 L.Q.R. 226, at pp. 233-234 and 247 (postscript).
12 For references, see R. Munday, “All for One and One for All”, at p. 322, n. 2. The House of Lords, of course, has produced single judgments in other major cases, although not in the form of a single speech to which all the Law Lords have contributed: e.g. Duncan v. Cammell Laird  A.C. 624; Rookes v. Barnard  A.C. 1129. Equally, there exist a few examples of pairs of Law Lords collaborating in the composition of a single speech: see below, text accompanying note 112.
13 “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law at pp. 364-365.
14 Clibbery v. Allan  2 W.L.R. 1511, 1540 at  per Thorpe L.J. (emphasis added).
15 See, e.g, Lord Woolf C.J.'s “Foreword” to Basil Markesinis, S., Foreign Law and Comparative Methodology: A Subject and a Thesis (1997: Oxford, Hart Publishing) pp. vii–viiiGoogle Scholar.
16  1 W.L.R. 2055 at .
17 Ibid, at , This theme of diversity and uniformity is addressed in several of the essays in Legrand, and Munday, (eds.), Comparative Legal Studies: Traditions and Transitions (2003: Cambridge, Cambridge University Press)Google Scholar forthcoming.
18 S. Hawthorne, “The Master of All He Surveys” (April 2002) Counsel, at p. 11. Lord Phillips is, of course, quite correct. Having recently sampled the last 25 years of reported cases, I have been struck by the increasing length of English civil judgments.
19 The Times (2001) 16 July.
20 The Daily Telegraph (2002) 29 July.
21 Cited note 18 above.
22 Note 17 above.
23 “All for One and One for All”, cited note 1 above.
24 E.g., Matthews v. Ministry of Defence  EWCA Civ 773 per Lord Phillips M.R. This practice might lead one to infer that the judgment has been drafted entirely by the person who delivers it.
25 E.g., Morgan Grenfell & Co. Ltd. v. Istituto per a Servizi Assicurativi del Commercio,  EWCA Civ 1932 at  per Clarke L.J. See also Arthur J.S. Hall & Co. v. Simons (1998) 14 December, unreported per Lord Bingham C.J. (“all members have very substantially contributed”); Steel and Morris v. MacDonalds Corporation (1999) 31 March, unreported per Pill L.J. (“each member has contributed substantially”).
26 E.g., Greig Middleton & Co. Ltd. v. Denderowicz  1 W.L.R. 1164 per Saville L.J.
27  EWCA Civ 284 at . Lor further examples of composite judgments where authorship is acknowledged, see “All for One and One for All”, at pp. 337-338.
28 In “All for One and One for All”, at p. 349, n. 149, I suggested that some composite judgments are the product of obvious collaboration and one can fancy that one recognises different styles of authorship.
29 Maximes, ex: “On ne donne rien si libéralement que ses conseils”.
30 Brown v. Stott (Procurator Fiscal (Dunfermline))  2 W.L.R. 817 concerned a woman, apprehended in the early hours of the morning for stealing a bottle of gin from a supermarket. The police had formed the view that she was somewhat the worse for wear through drink. Therefore, exercising their powers under the Road Traffic Act 1988, s. 172(2)(a), they had required the lady to say whether or not she had been driving her car, which, they knew, was parked in the superstore's car park. Under s. 172(3) of the Act, if Mrs. Brown had refused to answer this question, she would have committed an offence. Mrs. Brown acknowledged that she had been driving. The High Court of Justiciary had held that the lady's right of fair trial had been violated by this high-handed statutory requirement to furnish evidence against herself. The Judicial Committee disagreed, unanimously. In a second case, McIntosh v. Lord Advocate  3. W.L.R. 107, appeal was successfully taken to the Judicial Committee against the High Court of Justiciary's decision that drug trafficking and general proceeds of crime legislation (the Proceeds of Crime (Scotland) Act 1995), which invites courts to make wide-ranging assumptions about the illegal origins of a convicted defendant's assets when considering whether or not to make a confiscation order, had again led to proceedings which had deprived defendants of their right to a fair trial. In a third case, Millar v. Dickson  1. W.L.R. 1615, four appellants successfully appealed against the High Court of Justiciary's rulings that the temporary sheriffs before whom they were tried for various criminal offences constituted an independent and impartial tribunal within the meaning of art. 6(1) of the European Convention. (After these cases were heard, the High Court handed down judgment in Stars v. Ruxton, Ruxton v. Starrs 2000 J.C. 208, holding that temporary sheriffs were not an independent and impartial tribunal under art. 6(1)). A fourth case concerned three conjoined appeals challenging the legislative competence of the newly founded Scottish Parliament, in which it was claimed that that body's first piece of legislation was incompatible with art. 5 of the European Convention: A v. The Scottish Ministers 2002 S.C. (P.C.) 63. A fifth case challenged Scotland's fixed fee legal aid scheme and, more particularly, the Scottish Executive's failure to amend the unyielding 1999 legal aid regulations: McLean v. Buchanan  1 W.L.R. 2425. A sixth case concerned two causes where it was contended that, contrary to art. 6(1), the prosecuting authorities had failed to comply with the requirement to bring the parties to trial “within a reasonable time”: Dyer v. Watson 2002 S.C. (P.C.) 89. In the most recent case to have been heard at the time of writing, Mills v. H.M. Advocate (No. 2) 2002 S.L.T. 939, the Committee has ruled upon the consequences that flow from breach of an appellant's right to a hearing within a reasonable time, guaranteed under art. 6(1) of the European Convention.
31 See notably, Montgomery and Coulter v. H.M. Advocate  2 W.L.R. 779.
32 Brown v. Stott  2 W.L.R. at p. 848 per Lord Hope of Craighead. Lord Hope, in an instructive address delivered to the Law Society of Scotland's annual conference, has set out the reasons why the Judicial Committee was selected as the tribunal for hearing devolution appeals in preference to the House of Lords: “Edinburgh v. Westminster and others” (1997) 42 Journal of the Law Society of Scotland 140, 141-143.
33 “Judicial Politics and the Judicial Committee: The Devolution Jurisprudence of the Privy Council” (2001) 64 M.L.R. 603. O’Neill pursues identical themes in “Judicial Politics in the Judicial Committee” (2001) 46 Journal of the Law Society of Scotland 17.
34 (1955) 33 Can. Bar Rev. 1123. Arguably, Lord Wright does dissent from his brethren's opinion via the medium of this article.
35 (1877) L.R. 2 P.D. 276. The case, which came from the Canterbury Court of Arches, involved a Folkestone vicar who appealed against findings that he had offended against ecclesiastical law by such scandalous conduct as wearing an alb and chasuble during Holy Communion, using circular wafers in place of the customary bread, placing a crucifix on the screen between the chancel and the nave, and so on.
36 Judicial Committee (Dissenting Opinions) Order 1966 (S.I.1966, p. 1100) para.3.
37 From the beginning of the twentieth century, Australian members of the Privy Council had argued for this alteration in practice, finding the ancient restriction little to their taste.
38 Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972, Oxford) p. 110 [punctuation supplied]. See also Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221, 235: “(I)n the Judicial Committee of the Privy Council, only two opinions are permitted, a collective majority opinion and a dissent.” (I am not at all sure that this is explicitly predicated by the terms of the 1966 Order, although it does appear to represent the invariable practice.)
39 I say “assume” because members of the Judicial Committee may not have been aware of the source of their authority to deliver individual opinions. One Law Lord to whom I spoke had simply taken it for granted that the Committee was entitled to do it as of right. That cannot possibly be correct.
40 In contrast, reasons given for the report of the Lords of the Judicial Committee when hearing petitions for special leave to appeal in devolution cases are delivered collectively by a single judge: see, e.g., Fallen v. H.M. Advocate (D.P. 1 of 2000)  D2 UKPC 1. This mirrors the practice followed by the Appeal Committee of the House of Lords when deciding whether or not to grant petitioners leave to appeal.
41 “Edinburgh v. Westminster and others”, (1997) 42 Journal of the Law Society of Scotland 140 at p. 142. Lord Hope's statement of House of Lords practice is possibly contestable. There have in fact been occasional instances when members of the House of Lords have delivered composite dissenting judgments. In Home Office v., Harman  1 A.C. 380, for example, Lords Simon of Glaisdale and Scarman collaborated in the preparation of the speech delivered by the latter. Technically, however, one could still claim that Lord Simon did deliver an individual speech to the extent that he stated in a couple of sentences how privileged he felt to have participated in the drafting of a speech which expressed views he shared (at p. 307).
42  A.C. 500, 510-511.
43  A.C. 900, 913 per Viscount Radcliffe. See generally Stevens, , Law and Politics: The House of Lords as a Judicial Body 1800-1976 (1979, London)Google Scholar; McWhinney, , “Judicial Concurrences and Dissents: A Comparative View of Opinion Writing in Final Appellate Tribunals” (1953) 31 Can. Bar Rev. 592Google Scholar; Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221.
44 The argument appears to be that because other professions, such as architects and accountants, do not have this avenue of appeal, it ought not to continue in respect of the medical professions: The Times, 16 July 2001. It is certainly the case that a sizeable proportion of the Judicial Committee's time is taken up with such appeals. In 1999 the Committee heard in toto 57 cases, of which 11 came from the professions and one was lodged under the Pastoral Measure 1983; in 2000 of the 55 appeals heard (which included three in devolution cases) 10 concerned the decisions of professional bodies; and in 2001 of the 66 appeals heard (which included five in devolution cases) 15 related to decisions of professional bodies. One does not have the sense, however, that the Judicial Committee operates under a crippling workload. Nor does there seem any pressing need to relieve it of approximately one fifth of its judicial business. For the full text of Lord Bingham's speech, see “The Highest Court in the Land”, a lecture delivered in Gray's Inn in October 2000.
45 Not all of Lord Bingham's suggestions immediately sound appetising. In particular, I would respectfully suggest that it is sad that his Lordship felt it necessary to question whether appeals should continue to be heard by a tribunal, which anyone studying its website would assume to be rather under-employed, from some of the poorest jurisdictions on the planet where the sum in dispute is “in some cases as low as $500”. Were Latin utterances still permissible before English judges, I would contend that this looks suspiciously like a true case of de minimis non curat lex. On the subject of legal Latin, see further R. Munday, “Does Latin Impede Legal Understanding? The Case of ‘Res Ipsa Loquitur’ “ (2000) 164 J.P.N. 995.
46  3 W.L.R. 107. In a similar way, in Mills v. H.M. Advocate (No. 2) 2002 S.L.T. 939, only Lords Steyn and Hope deliver full speeches. Lords Nicholls of Birkenhead and Scott of Foscote, however, indicate their agreement with both opinions, whilst Lord Mackay of Clashfern allies himself only with that of Lord Hope. Despite delivering an independent speech, however, Lord Steyn adds that he agrees with “(Lord Hope’s) reasons on all aspects of the case” (at ).
47 See my comments on Parker L.J.'s judgment in just such a case, W.F Harrison & Co. v. Burke  1 W.L.R. 419, in “Notice of the Legal Assignment” (1981) 131 N.L.J. 607.
48 Brown v. Stoll (Procurator Fiscal (Dunfermline))  2 W.L.R. 817; see n. 30 above.
49 Lord Hope had in fact already dealt with the devolution issue at greater length in the earlier case of Montgomery and Coulter v. H.M. Advocate  2 W.L.R.779. The selfsame phenomenon is visible in A v. The Scottish Ministers 2002 S.C. (PC.) 63, where only Lords Hope and Clyde deliver full speeches on the sensitive question whether or not the Scots Parliament overstepped the human rights mark in its very first piece of legislation. One does feel uneasy that non-Scots judges fear to intrude into putative Scots grief.
50  2 W.L.R. 992. Sedley L.J. pungently described the dispute as an “intrusion … by uncontrolled photography for profit of a wedding which was to be the subject of controlled photography for profit” (p. 1030, para. ).
51 American Cynamid Co. v. Ethicon Ltd.  A.C. 396.
52 See  2 W.L.R. at p. 1007, para. , Keene L.J. addresses this issue at paras. [150-154],
53 See  2 W.L.R. at p. 1028, para. , This is not of course meant to suggest that the phenomenon of judicial co-operation is a novelty. On the contrary, it is an institution. Take Goff L.J.'s judgment in re Gray's Inn Construction  1 W.L.R. 711, 725: “Having had the advantage of reading Buckley L.J.'s judgment whilst it was still in draft, and of discussing the case with him on several occasions, I am happy to say, with respect, that I agree in its entirety with the judgment which Buckley has just delivered.” (This revealing sentence somehow is more reassuring than Sir David Cairns's guarded statement, “I also am in a position of being able to agree” (ibid.)).
54  3 W.L.R. 843.
55 Ibid., pp. 860-876.
56 Ibid., pp. 847-860. The division of functions here seems to be dictated by the fact that whereas Lord Scott dealt with the point of statutory interpretation, Lord Hutton concentrated upon the potential impact of art. 6 of the European Convention on Human Rights on a statute that compelled the taxpayer to reveal information that might later ground a prosecution.
57 See, e.g., Basil Markesinis, “A Matter of Style” (1994) 110 L.Q.R. 607 and sources cited, reprinted in Foreign Law and Comparative Methodology: A Subject and a Thesis (1997, Oxford: Hart Publishing) pp. 126ff.Google Scholar; Kotz, H., “Scholarship and the Courts: A Comparative Survey” in Clark, D.S. (ed.), Comparative and Private International Law: Essays in Honor of John Henry Merryman on his Seventieth Birthday (1990, Berlin: Duncker & Humblot) pp. 183ff.Google Scholar; Basil Markesinis, “Judicial Style and Judicial Reasoning in England and Germany”  C.L.J. 294, reprinted in Always on the Same Path: Essays on Foreign Law and Comparative Methodology. Volume II (2001, Oxford: Hart Publishing) pp. 305ffGoogle Scholar.
58 This criticism could in fact be made more tellingly. It is noticeable that comparative analyses of “judicial style” have tended to concentrate exclusively on the most senior courts in their jurisdictions’ hierarchies. It is all very well pointing to the condensed, other-worldly quality of the judgments of the French Cour de Cassation, but as anyone familiar with French law would concede, these bear little resemblance to judgments handed down by first instance courts in France, most of which incidentally are the product of individual judges and not of benches of magistrates (see further, note 71 below). One might even wonder whether what is striking, in part, about “judicial style” is its seeming uniform quality within common-law systems, but its relative diversity of forms within civilian systems.
59 It will be noticed that I refer both to English and common-law judgments almost indifferently. In common law jurisdictions it is the tradition that our judges speak as individuals. I am of course aware that styles of judgment vary from the common law courts of one jurisdiction to another, and that there may well be variations of style between courts of different levels and, indeed, between individual judges. But these variations probably have little impact on the arguments presented in this paper. As John Matson, who was Chancellor of the University of Canterbury (New Zealand) between 1973 and 1977, suggested in a paper delivered just over a decade ago, “The reasoned analysis of law and fact, and the intellectual discussion of problems which constitute the judgments of courts in the common law world, differ little in linguistic nature from one country to another. New Zealand judgments are perhaps more matter of fact than those of English courts, and not adorned with the occasional literary and classical allusions which grace the latter. Such allusions often reveal the classical education which … was the usual intellectual equipment of the social class from which the bar and the judges were drawn. In Re Berkeley Securities (Property) Ltd. ( 3 All E.R. 513, 528), Vinelott J. was faced with circumstances which a New Zealand lawyer might well have described as a “Catch-22 situation”. An expression generally understood since Joseph Heller's novel Catch-22 was published in 1961. But what Vinelott J. said was: “The question appears to present a paradox worthy of Epimenides.” In New Zealand on the other hand the standard of linguistic education, especially the study of classics, has always been low” (“Lawyers’ Language” (1990) 4 Cant. L.R. 302, 312).
The same can be said for “civilian” jurisdictions, too. Civilian jurisdictions are far from espousing identical styles in their judgments. Although both are delivered collegiately, the carefully structured but relatively free-flowing judgments of the German Bundesgerichtshof are a far cry from the terse, austere, almost Delphic pronouncements of the French Cour de Cassation. And the comparatively relaxed format of the Belgian Cour de Cassation's judgments cannot be confused with those of their French counterpart.
60 Hinz v. Berry  2 Q.B. 40 , 42. Similar examples abound in the judgments of Lord Denning: see, e.g., Miller v. Jackson  3 All E.R. 338, 340.
61  1 All E.R. 49, 50. As Kotz has remarked, “A Continental lawyer feels like being submerged in a oxygen bath when he reads (this) opening statement”: “The Role of the Judge in the Court-room: The Common Law and Civil Law Compared” (1987) 1 T.S.A.R. 35, 42.
62 Holden v. Lancashire Justices (1998) 162 J.P. 789.
63 R. v. Ealing Magistrates’ Court, ex p. Fanneran (1996) 160 J.P. 409, 416D-E: it seems to me that the Dangerous Dogs Act 1991 bears all the hallmarks of an ill-thought-out piece of legislation, no doubt in hasty response to yet another strident pressure group. Add to that the foolish nephew, an observant and zealous policeman and the result is that a perfectly inoffensive animal has to be sent to the gas chamber, or whatever method of execution is favoured, its only crime being to have a cough. It would take the pen of Voltaire to do justice to such a ludicrous situation.”
64 Ruxley Electronics and Construction Ltd. v. Forsyth  A.C. 344, 354D.
65 Smedley's Ltd. v. Breed  A.C. 839, 845.
66 Mills v. H.M. Advocate (No. 2) 2002 S.L.T. 939 at  (“Having already given a judgment on this point, I feel diffident about doing so again. I fear I must return to the point”: punctuation supplied).
67 Ravenscroft v. Rederiaktiebolaget Transatlantic  3 All E.R. 73, esp. at pp. 76 and 87 (reversed by the Court of Appeal (1992) The Times, 6 April).
68 There are several examples in Megarry, , A Second Miscellany-at-Law: A Further Diversion for Lawyers and Others (1973: London, Stevens & Sons Ltd.) esp. pp. 154–157Google Scholar. It is curious to report that, in contrast to passages from some of his judgments, Michael A. Musmanno's books, such as the autobiographical Across the Street from the Courthouse (1954: Philadelphia, P.A. Dorrance & Co.)Google Scholar and even Verdict! The Adventures of the Young Lawyer in the Brown Suit (1958: New York, Doubleday) seem oddly subdued.
69 See, e.g., Smith v. Colonial Penn Ins. Co. (1996) 6 November (civil action no. G-96-503 in the U.S. District Court for the Southern District of Texas, Galveston Division); Republic of Bolivia v. Philip Morris Companies Inc. (1999) 1 March (civil action no. G-99-100); Labor Force Inc. v. Jacinport Corp, and James McPherson (2001) 7 June (civil action no. G-01-058); Bradshaw v. Unity Marine Corporation Inc. (2001) 27 June, 2001 U.S. Dist. LEXIS 8962 (civil action no. G-00-558).
70 One might indeed wonder whether the more individualistic speeches are not likely to become increasingly things of the past. Judgments are not exactly free-style texts at the best of times. However, the spreading fad for sub-headings, indexes, collaborative methods of composition and postscripts, along with the structured paragraphing imposed by neutral citation, may well create a climate inimical to the more colourful judicial flights of fancy.
71 It is sometimes imagined that humour is the exclusive preserve of the common-law judgment. I am not at all sure that this is the case. Although the Delphic austerity of the French Cour de Cassation's judgments is unsurpassed, first instance courts in France, it seems to me, do resort to humour, or at least adopt an overtly ironical tone, from time to time. Thus, when a Tribunal de grande instance described an actress's “sexe dénudé” in a privacy case as “le seul repli de chair qu’il lui restait à dissimuler et qui constitue l’ultime refuge de sa vie privée”, can one not detect a suppressed snigger: Trib. gde inst., 14 May 1974, D. 1974.766? Or what of the Béthune Tribunal de grande instance's judgment in a divorce case in which the husband alleged his wife's adultery and the court explained away the wife's having been seen to kiss Michel F. in the following terms: “Attendu, d’autre part, en admettant qu’il s’agisse de baisers sur la bouche, que cette license ne serait gravement injurieuse que si elle était répétée, un baiser isolé ne fait qu’égratigner le contrat conjugal; cette égratignure doit normalement se cicatriser et ne rend intolérable le maintien du lien conjugal Trib. gde inst. Béthune, 12 June 1973, D. 1975.242, note F.B. The Cambrai tribunal de police's account of the poster advertising Brigitte Bardot's film, La bride sur le cou, makes instructive reading, too: Trib.pol Cambrai, 13 December 1961 J.C.P. 1962.11.12541. Similarly, one could quite easily imagine an English court employing the same language as the Tribunal correctionel in Limoges when dealing with a case in which two accused on one occasion had exposed themselves and urinated in the direction of some police officers and on another had relieved themselves in front of a police station. In response to the question whether such émondions might have froissé la pudeur of hardened police officers, the court ventured, with barely suppressed irony: “D’autre part, quelle que soit la license des moeurs, elle ne procède jamais que de la participation de quelques-uns alors que la loi a été édictée pour la protection de tous, et il y a, heureusement même chez les fonctionnaures de police, bon nombre de citoyens encore doués de délicatesse et de sensibilité”: Trib. corr. Limoges, 13 June 1975, D. 1976 Somm.17. And was there not deliberate humour in the description of a case in which an overweight woman was unable to wear a seat-belt as “force majeure” (Trib. pol. Bressiure, 26 February 1976, Gaz.Pal. 2-4 January 1977, p. 15, note Doll.)? Our obsession with the activities of the higher courts obscures part of the picture. To quote the Chinese proverb, the frog at the bottom of the well sees only part of the sky. What is significant, I would suggest, is that in England all courts, from the lowest to the highest, operate in this relatively unrestrained way.
72 Basil Markesinis, “A Matter of Style” at p. 127 and 129.
73  A.C. 593.
74 Pepper v. Hart, one might add, supplies an instructive sidelight on judicial character. Lord Griffiths could not restrain himself from declaring that “on this question of construction I was in a judicial minority of one at the end of the first hearing of the appeal” ( A.C. at p. 619D). He was of course in the majority at the second hearing. Now, why would a judge particularly wish us to know that?
75 “The Role of the Judge in the Court-room: The Common Law and Civil Law Compared” (1987) 1 T.S.A.R. 35, 41.
76 See, e.g., Wisely v. John Fulton (Plumbers) Ltd.; Wadey v. Surrey County Council.  1 W.L.R. 820, 822 and 829 per Lord Slynn and per Lord Millett; Shelley v. Paddock  Q.B. 348, 357 per Brandon L.J. (“I have found this case more difficult than the other two members of the court”); R. v. Derbyshire County Council, ex p. T  Fam. 164, 171 per Woolf L.J. (”… although my mind vacillated in the course of argument, I am ultimately persuaded by the able arguments of Mr. Wall …”)
77 E.g., Nagarajan v. London Regional Transport  3 W.L.R. 425, 428 per Lord Browne-Wilkinson.
78  1 W.L.R. 1468, 1473G.
79  3 W.L.R. 1562.
80  3 W.L.R. 206.
81  3 W.L.R. 1562, 1568 at , Lord Lloyd, it should be said, was not the only member of the court who felt that he was on the rack. Lord Steyn, too, sensed that “the artificial distinction” drawn by the majority in Lambert was “mistaken” (at ), but considered that it would now be wrong to depart from that earlier ruling.
82 Ibid., at ,
83 Ibid., at ,
84 See Saunders v. UK (1996) 23 E.H.R.R. 313; IJL, AKP and GMR v. UK (2000) The Times, 13 October. In the event, the Guinness appellants’ appeals were rejected on the ground that, prior to the entry into force of the Human Rights Act 1998, the European Court had no jurisdiction to issue what was tantamount to a declaration that an English Act of Parliament was unlawful: Lyons, Parnes, Ronson and Saunders  EWCA Crim 1860.
85  3 W.L.R. at 1569, at .
87 S. Barclay, An Appealing Act (1993, Ph.D. dissertation).
88 Barclay, S., “Posner's Economic Model and the Decision to Appeal” (1997) 19 Justice System Journal 77Google Scholar. Interestingly, in her study, “Who loses out on Paradise Island? The case of Defendant Debtors in County Court”, in Ramsey, Iain (ed.), Debtors and Creditors: A Socio-Legal Perspective (1986, Abingdon, Professional Books)Google Scholar, Maureen Cain discovered that half of the small sample of individuals questioned gave as their reason for bringing suit in the county count “a point of principle”. Moreover, 47.4% of the plaintiffs Cain interviewed (mainly, institutional litigants) gave as their reason for suing “general deference” (esp. pp. 109-110 and 117-118).
89 An Appealing Act: Why People Appeal in Civil Cases (1999, Evanston (Ill.): Northwestern University Press; The American Bar Foundation) p. 3. Barclay's research is not out on a limb, but dovetails into a broader perspective adopted by some political scientists that “disputants pursue grievances not only in terms of material interests, but also in terms of norms about integrity, self-image, self-respect, and duties to others” (e.g., Merry, S. and Silbey, S., “What do Plaintiffs Want? Re-examining the Concept of Dispute” (1984) 9 Justice System Journal 151, 160Google Scholar); Shamir, R., “Litigation as a Consummatory Action: the Instrumental Paradigm Reconsidered” (1991) 11 Studies in Law, Politics and Society 41Google Scholar. It also conforms to some scholars’ view that, more generally, process offers a superior vehicle to outcome for understanding the relationship between individuals and institutions and the state: e.g. Habermas, J., Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy (1996, Cambridge, Mass.: MIT Press)Google Scholar.
90 An Appealing Act, pp. 155 and 159-160.
91 An Appealing Act, pp. 64-65.
92 Two well-known exceptions are the European Court of Human Rights and Germany's Constitutional Court (Bundesverfassungsgericht).
93 See generally John Alder, “Dissents in Courts of Last Resort: Tragic Choices?” (2000) 20 O.J.L.S. 221.
94 (1770) 4 Burr. 2579, 2582.
95 Final Appeal (1972, Oxford) p. 83.
96  1 W.L.R. 671, 684. Coincidentally, in the same issue of the Weekly Law Reports, in Jones (Anthony)  2 W.L.R. 524, where the House of Lords considered whether the English rule that allows a criminal trial to proceed in the absence of an absconding accused is compatible with human rights law, Lords Bingham and Nolan reluctantly suppressed their view that a doctrine of waiver may apply, in light of the strong contrary opinion entertained by Lords Hoffmann and Rodger of Earlsferry (at  and )? Are uneasy compromise and intellectual fudge destined to become the order of the day? (Lord Hutton, it should be said, took a more robust stance (at )).
97 See notably, Postema, , Bentham and the Common Law Tradition (1986: Oxford: Clarendon Press)Google Scholar. Currently, it might be mentioned that dissents are registered in the English Court of Appeal and House of Lords in approximately 10% of cases.
98 In Kansal (No. 2)  3 W.L.R. 1562, Lord Hope admitted that he had considered withdrawing his judgment, “out of loyalty to the view of the majority,” once he realised that there was a clear majority in favour of following Lambert. “On balance,” he nevertheless went on to say, “I have decided that I ought to adhere to it, in case it may still be necessary in some future case to consider the question … What follows, with only a few changes, is my judgment as originally circulated” (at ).
100 Parliamentary Papers, House of Lords 1856, (46) xxiv Q. 24, 25, 35, 339, 590, 784. See Alder, (2000) 20 O.J.L.S. 221, at pp. 235ff.
101 See Robertson, Judicial Decisions in the House of Lords (1998) p. 26
102 Do judges sometimes affect unanimity when plainly it is absent? Take Royal Bank of Scotland pic v. Etridge (No. 2)  3 W.L.R. 1021, where Lord Bingham of Cornhill suggests that Lord Nicholls of Birkenhead's speech “commands the unqualified support of all members of the House.” If one reads the 100 or so pages of speeches, however, it appears obvious that the Law Lords are all saying slightly different things on a range of issues.
103 “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law 364, 365 and 366. Lawson also makes the allied point, not unconnected with these themes, that “It would be idle to expect English judges to write in a less discursive manner than the way they speak” (at p. 366).
104  EWCA Civ 555 at , See also Barclays Bank pic v. Burgess  EWCA Civ 291 at  per Ward L.J.: “I entirely agree with the judgment of Chadwick L.J. and although we are differing from an experienced judge, there is nothing I can usefully add; Venables v. Hornby  EWCA Civ 1277 at  per Peter Gibson L.J.”
105 There seems no reason to think that the advent of a small number of High Court judges from amongst the ranks of the solicitors need alter this.
106 This, after all, was what Lord Denning always claimed had lured him back to the Court of Appeal after serving for a spell in the more tranquil surroundings of the House of Lords.
107 See “Judicial Politics and the Judicial Committee”, cited note 33 above.
108 Morris v. C.W. Marlin & Sons Ltd.  1 Q.B. 716, 730.
109 “They sought it with thimbles, they sought it with care””: Carroll, Lewis, The Hunting of the Snark (1876: London, Constable)Google Scholar Fit. v, st. 1. For a vigorous discussion of some of the disadvantages of concurring judgments, see L.C.B. Gower, “Reflections on Law Reform” (1973) 23 Univ. Toronto L.J. at pp. 257-259.
110 E.g., U.C.B. Corporale Services Ltd. v. Williams  EWCA Civ 555 at  per Peter Gibson L.J.
111 (1890) L.R. 15 A.C. 210.
112 See A Selection of Lord Macnaghten's Judgments 1887-1912 (1951: London, Butterworths, published for private circulation) pp. 12-18Google Scholar. Sir Frederick Pollock said of Lord Macnaghten's judgments that they were “genius beyond the reach of art”: For my Grandson (1933, London, John Murray) p. 172. Arguably, this is yet another composite speech delivered in the House of Lords: see note 12 above.
113  A.C. 161.
114  1 K.B. 671. At the very moment of going to press the Court of Appeal, in its composite judgment in Great Peace Shipping Ltd. v. Tsavliris (International) Ltd.  EWCA Civ 1407, has declared Solle v. Butcher to be bad law. The distinct equitable doctrine of mistake may in consequence be gone. However, one can anticipate that the phenomenon identified in the text will persist and that the summary of the doctrine of common law mistake set out by Lord Phillips M.R. and May and Laws L.JJ. at para. —along with Steyn, J.'s remarks in Associated Japanese Bank (International) Ltd. v. Crédit du Nord  1 W.L.R. 255, 268, which the court expressly approved (at )—will acquire a similar lapidary status to that of Denning, L.J.'s distillation of the common law of mistake in Solle v. Butcher.
115 Is there not perhaps also a paradox of sorts here? The higher we ascend in the court hierarchy, the greater are the numbers of judges with which we pack the benches. As a rule of thumb, the higher the court, the more significant the issues or the value of the interests at stake. Hence, the greater the interest in settling matters clearly. One logic might lead us to anticipate that numerous benches would therefore bestow greater emphasis and precision on the decisions they hand down than are to be found in those of lower courts. With dissenting and concurring opinions, however, the effect can almost be the opposite.
116  EWCA Civ 762.
117 Ibid. at  per Robert Walker L.J.
118 Ibid, at . The judge later admits with regret that his progress to this conclusion was “tortuous”, had “occasioned some delay and additional expense”, and “is not a wholly satisfactory test” (at  and ).
119 Ibid. at .
120 Ibid. at .
121 Ibid. at .
122 Christmas Eve and Easter Day (1850: London, Chapman & Hall) canto iv.
123 See Greig Middleton & Co. Ltd. v. Denderowicz  1 W.L.R. 1164 per Saville L.J.
124 E.g., Kuwait Airways Corporation v. Iraqi Airways Co.  EWCA Civ 284.
125 Nor does the anonymous judgment meet the point, although it is noticeable that a goodly number of composite judgments released as transcripts do not indicate authorship. The credibility of the contrivance is put more sorely to the test in a rare case like Taylor v. Lawrence  EWCA Civ 90,  3 W.L.R. 640, where a five-man Court of Appeal handed down a composite judgment (on the subject of judicial bias). The prime intention in this case, one infers, was to hand down unequivocal guidance on how such cases were to be adjudicated upon in the future and, perhaps, to avoid the embarrassment of individual appellate judges criticising a brother judge, who would seem to have acted with insufficient circumspection. Not only does a five-hand judgment look unconvincing—one wonders just what mechanism produces a 13,221-word speech—but also, when one looks at the sort of principles delineated by the court, which comprised the Lord Chief Justice, the Master of Rolls and three of the most senior Lords Justices of Appeal, one is struck by how impressionistically some of those principles are expressed: see notably at , pp. 658-659.
126 See text accompanying notes 86-91 above.
127 See note 61 above.
128 In some areas, where composite judgments seem especially common—e.g., Family law—one wonders whether this is not already occurring.
129 Thoburn v. Sunderland City Council  3 W.L.R. 247,  E.W.H.C. (Admin.) 195 at . There is no particular reason for selecting this case in preference to the thousands of other similar examples, save that I have a vivid recollection of how incongruous this “judgment” seemed at the time.
130 The website http://www.metricmartyrs.com reveals that even H.M. The Queen's Sandringham estate sawmill has been found to have been acting in breach of these selfsame EU regulations, following a visit by Norfolk trading standards officers. One can only guess at the bewilderment of the Norfolk populace struggling to come to terms with a sawmill that sold timber measured in traditional feet and inches. The people of Norfolk will never be able to repay the debt they owe to the vigilance of Norfolk County Council's trading standards officials.
131  3 W.L.R. 247, at  per Laws L.J.
132 Crane J.'s only other contribution, of which we are made aware, is that he agreed with a letter sent to counsel by Laws L.J. after close of argument suggesting a further point for their consideration: ibid, at .
133 See “All for One and One for All”, at p. 325. Add to these figures the percentages of cases in which composite judgments were handed down and the proportion of cases in which multiple judgments were delivered in these years was as follows: in 1999, 46.7%; in 2000, 39.7%; and in 2001, 48.2%. Although I have not sought to verify this, my distinct sense is that these figures would be roughly replicated in those Court of Appeal decisions that are not selected for inclusion in the Incorporated Council's law reports.
134 By way of a rough-and-ready experiment, I explored whether the proportion of cases carried in the Incorporated Council of Law Reporting's reports in which two members simply signified agreement had increased over the past quarter century. Scanning these “official” reports, I found as follows: (The figures for 2000 may be found at  C.L.J. 325. In the table above I have not recorded the countless additional cases where one member of a three-man court contented himself with “I agree”).
A word of caution, however. The reason for judges simply saying “I agree” may have altered over the last quarter of a century. In 1977 Lawson pointed out that even in the Court of Appeal the custom was for the judges to deliver judgments extempore, immediately upon the close of argument: “(T)here is no place in the English system for the judicial conference; indeed there is seldom any time for it. The judges may be able to exchange a few words during an adjournment or sotto voce on the Bench at the close of argument. Then the presiding judge will usually start speaking and the others may add a few words or merely concur” (Lawson, “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law 364, 365. This is no longer the practice today. The majority of today's exiguous concurring judgments are delivered after the court has taken time for deliberation. No-one is caught “on the hop”. Noone can claim lack of time to give thought to what the prime mover in the court has decided to say. That said, as I scanned the Court of Appeal decisions, particularly those dating from the era of Lord Denning M.R., who was noted for insisting upon delivering judgment hot upon counsel's submissions, I found no evidence of “I agree” syndrome. On the contrary, in every case in the Incorporated Council's reports for the years I surveyed, in all cases in which Denning presided at least one other judge, and normally both the sidesmen, gave a judgment. Needless to say, I encountered no case where Lord Denning had had any truck with a composite opinion.
135  1 W.L.R. 2304,  EWCA Civ 21.
136 In another sense, it bears within it seeds of truth. The named judge visibly did the bulk of the work, and it is only appropriate that his or her labours should be recognised.
137 Cited note 129 above.
138 “A Very Old Man with Enormous Wings. A Tale for Children” in Gabriel Garcias Marquez, La increíble y triste historía de la cándida Eréndira y de su abuela desalmada (1972, Barcelona: Barral Editores) translated in Collected Stories (1991, London: Jonathan Cape) pp. 186-193. I have lightly amended the commercial translation. The reaction of the priest in Charles Maturin's Melmoth the Wanderer is not dissimilar, who, “after listening long at the invalid's door, pronounced the language in which he was soliloquising not to be Latin, and, after a conversation of some hours with him, refused to tell what language the stranger spoke to himself in, and forbid all inquiry on the subject” (1820: London, Constable) vol. I, chap. v.
139 The experience of US federal courts in the delivery of composite opinions was briefly discussed in “All for One and One for All”, at pp. 347-348.
140 On the rôle of law clerks, see sources cited in note 150 below.
141 See, e.g., Lawson, , “Comparative Judicial Style” (1977) 25 Am. J. Comp. Law 364, 366Google Scholar: “The drastic curtailment of the time available for oral advocacy before American appellate courts has helped to make the preparation of argument not only a written but also a corporate enterprise … and concurrently with the development of the judicial conference, the appellate opinion has become corporate also.” Depending upon which elements one chooses to lay emphasis, one can cause the picture to mutate like a kaleidoscope. Thus, musing upon the differences between English, American and French judgments, Lawson at one point singles out the corporate nature of American court opinions, “combined with the search of a communis opinio”, claiming that the effect is “to cause the convergence between American and French judicial styles and their divergence from the English.” Additionally, the form of discourse encountered within those three systems diverges in the sense that “in England discussion takes place between Bench and Bar, whereas in America and France a large part of it, perhaps the most important part, is among the judges and their auxiliaries, law clerks in the former and avocats-généraux in the latter” (p. 365).
142 “La collégialité est-elle une garantie de la sûreté des jugements?” Rev. trim. dr. civ. 1992. 532-538.
143 The École Nationale de la Magistrature was set up in 1958 in Bordeaux, staffed by maîtres de conférence, all of whom have served as judges. The Ecole is responsible both for training the 100 or so young women and men who are destined to become judges in France each year and for assuring a continuous judicial training for existing judges. The induction course, which is a general and practical judicial training, lasts 31 months—quite a contrast to the severely restricted activities of the English Judicial Studies Board. The French judicial career path, too, differs widely from our own: the French bench these days is both young (by the mid-1990s almost 50% of French judges were under 40 years of age, as compared with merely 13% in 1970) and, like many European countries, heavily feminised (in recent annual recruitments, between 70 and 80% of entrants to the École have been women).
144 E.g., Maurice Garçon, Lettre ouverte à la justice (1966: Paris, Albin Michel) pp. 71-73.
145 Francçois Gorphe, Les décisions de justice. Étude psychologique et judiciaire (1952: Paris, Sirey) pp. 39 and 163.
146 Although one ought not to read too much into this unique experiment, it is tempting to wonder whether these tentative findings do not in some general sense vindicate the common law's way of doing things. Its tradition of recruiting judges from amongst the ranks of practising lawyers, as in the case of those French students who had not just played judicial roles in M. Baudouin's experiment, may well afford the judges a broader experience and vision which may legitimately be expected to enrich their judgments, once elevated to the bench. Additionally, one might reasonably have intuited that judges who sit alone, lacking the moral support of colleagues, precisely because they do sit alone, may have no need to compromise their opinions in the bid to arrive at agreed common conclusions, but will feel a greater need to reinforce their judgments with meticulously crafted legal arguments. The need to justify is all the stronger in the case of judges who operate solo.
147 Rev. trim. dr. civ. 1992, at p. 533. These conclusions look plausible. Intuitively, one senses that the dynamics of deliberation are likely to have an effect on decision-making and on the formulation of arguments. I am tempted to draw a cautious parallel with recent findings of psychologists at Glasgow University, whose study of jury deliberations would suggest that conventional 12-member juries are simply too large to allow for true interaction or to permit “true consensus” (see James Randerson in New Scientist, 4 September 2001). In the Glaswegian study, Simon Garrod remarked, significantly, that “In a small group (of five), other people can finish or modify what you’re saying”, allowing a final decision to emerge from the amalgamation of everyone's opinions.
148 Ibid., p. 537.
149 One curious contradiction that surfaces in this paper is that whereas the Judicial Committee of the Privy Council, in a procedure that runs counter to its entire history, feels that the important issues that it is addressing in appeals from Scotland invariably merit five opinions, the Civil Division of the Court of Appeal increasingly inclines to the view that the most important issues it addresses merit single composite judgments. Are these viewpoints reconcilable?
150 See generally Walton, D., Slippery Slope Arguments (1992, Oxford, Clarendon Press)Google Scholar. There are, of course, other changes in working methods in the appellate courts of which one has similar suspicions. There is, for example, a small number of law clerks attached to various of the senior judges. Both the former (“A Seat in the Lords?” (August 2002) Counnsel, p. 20) and the latter (Lord Bingham, quoted ibid.', Lord Philips, quoted in S. Hawthorne, “The Master of All He Surveys” (April 2002) Counsel, at p. 11, cited in note 18 above) assure us that the clerks are not, and will not, be employed à l’américaine to participate in the composition of judgments (see, e.g., Posner, Richard A., Federal Courts: Challenge and Reform (1996, Cambridge, Mass.: Harvard University Press)Google Scholar; George Rose Smith, “A Primer of Opinion Writing for Law Clerks” (1973) 26 Vand. L. Rev. 1203; Joseph Vining, “Bureaucracy and Legal Method” (1981) 80 Mich. L. Rev. 248; Lauren K. Robel, “Caseload and Judging: Judicial Adaptations to Caseload” (1990) B.Y.U.L. Rev. 3). Once again, one could suggest that the seeds have been sown.
151 See note 134 above.
152 There does seem a desire amongst the upper judicial cadre to instil greater openness into the system. Thus, Lord Steyn, in his Neill Lecture, which admittedly focussed upon the rôle of the Lord Chancellor, advocated greater openness about the selection of which judges sit in which cases: “If the Lord Chancellor has the power to dictate in a given case the composition of the highest court in the land, he will be entitled to exercise it and nobody will in practice known when the power has been exercised directly or indirectly. Not much legal certainty and transparency there.” ﹛The Case for a Supreme Court, 1 March 2002, All Soul's College, Oxford, p. 9.) Similar reasoning could apply to the decisions of the Court of Appeal to go into composite mode, especially given that litigants, who might count as interested parties, are not consulted beforehand.
153 This is without mentioning the historical incongruity of collegiality in an English context. Why have some Continental systems espoused a “strict” collegial principle? In France (where in fact a high proportion of first instance courts are manned by single judges) collegiality is tied up with the Revolutionary break with the ancien régime, and the desire during that period to clip the wings of a detested judiciary. These are not exactly our motives. From a different comparative perspective, the English move towards collegiality could also look odd given that in one collegiate system, Germany, one of the really hard-fought legal battles of the last century, involving the German Constitutional Court ﹛Verfassungsgerichtf was the struggle to establish the right of members of that Court to publish dissenting opinions. This is in the cases that really matter—this right, not unnaturally, being seen as a means of giving further effect to democratic ideals, following the totalitarian horrors of the Second World War.
154 Misreadings (1993: London, Jonathan Cape. Trans. W. Weaver), p. 4.
155 “A Defence of China Shepherdesses” in The Defendant (1907: London J.M. Dent & Sons Ltd.) p. 84.
* In Amber v. Stacey  1 W.L.R. 1225 the two-man Court was composed of a Lord Justice of Appeal and a retiree, Sir Anthony Evans.