Don’t attack colleagues, urges Lord Neuberger
The president of the Supreme Court has given intrigued lawyers a behind-the-scenes insight into the decision-making process of the country’s most important court — and it’s not as high and mighty as you might think.
Addressing the Centre for Commercial Law Studies conference, Lord Neuberger gave a comprehensive speech exploring a number of wide-ranging issues about the court’s reputation and standing.
What we here at Legal Cheek found particularly exciting was Neuberger’s insight into how the most important court judgments in the land are drafted. After considering the pros and cons of the court giving single or multiple opinions, he moved on to explore the proper place of over the top and insulting language in his judgments.
He began:
[W]hen it comes to writing a judgment in which a judge considers a colleague’s judgment in the same case, I deprecate any sort of abuse or hyperbolic criticism. Any judge worth her salt should be able to marshal and express her arguments clearly and have the confidence to let those arguments speak for themselves.
In a speech which focused heavily on external perceptions of the court, he explains that insults and hyperbole…
…tend to betray a lack of confidence in the actual argument advanced by the judge concerned, and they do nothing for the reputation of the court — or for relationships within the court.
However, it’s not all judicial precedent and statutory interpretation.
Neuberger then reveals that the court likes to have a bit of fun when ruling on the country’s most important legal controversies, leaving silly language in their draft judgments to give the fellow justices a good giggle:
“Hyperbole and insults can be great fun, particularly when they emanate from Justice Scalia,” Neuberger says in relation to off-the-wall American Supreme Court judge Antonin Scalia, who has been likened to law student favourite Lord Denning, before continuing:
When we Supreme Court Justices discussed this among ourselves recently, one of my colleagues suggested that insults and hyperbole could be included in drafts of judgments when exchanged between ourselves, but would be deleted when the final version of the judgment was prepared for publication. I was happy to agree this, not least because one would then have the fun of seeing the insults without the embarrassment of having them deployed in public.
Neuberger’s overarching point is that judges shouldn’t be having catfights — at least not in public. But not everyone’s perfect, and even the president himself admits to slating his colleagues for all to see.
A regretful Neuberger admits to getting his claws out when deciding his first ever House of Lords case, the name of which will be instantly recognisable to land law students. Boldly holding a sole dissenting view in the important constructive trusts case Stack v Dowden, he remorsefully admits:
I gave a speech where I am afraid I did attack the reasoning of my colleagues.
Giving himself an impromptu slap on the wrist, Neuberger vows not to make the same mistake again:
I do not intend to repeat the solecism of a callow youth and therefore I do not expect to trespass into that area again.
Stack v Dowden was heard in 2007. Neuberger was born in 1948, so, if we’ve got the maths right, he would’ve given his judgment age 59.
Legal Cheek is not sure Neuberger quite understands the term “youth” — but is impressed by his overarching commitment to a positive public perception of the judiciary.