You are on page 1of 14


Law Quarterly Review


Threats to judicial independence: the enemy within

J.D. Heydon* Subject: Administration of justice. Other related subjects: Civil procedure. Criminal procedure Keywords: Case management; Judgments and orders; Judicial independence; Written submissions *L.Q.R. 205 The themes of this lecture can be summed up in three epigraphs. Chief Justice Dixon reputedly said: I never agreed in anyone elses judgment without later coming to regret it. Another outstanding judge, the lamented Lord Bingham, considered that: judicial independence [involves] independence from ones colleagues.1 The third epigraph is by the anonymous author of the following words on the tomb of Mr Justice Walmsley, a frequent dissenter in the Court of Common Pleas from 1589 to 1612: His inside was his outside, he never sought To make fair showes of what he never thought. 2 Non-judicial threats to judicial independence usually come from the executive. Some threats from the executive have failed. In 1892, the future Czar Nicholas II was the victim of an assassination attempt while visiting Japan. A great struggle then took place between the Supreme Court of Japan and the advisers to the Meiji Emperor as to whether the would-be assassin should be tried on a capital charge. Article 116 of the Criminal Code provided that anyone who attempted to kill the Crown Prince should be punished by death. The judges considered that this applied only to the Japanese Crown Prince; the executive considered that it applied to any crown prince. The judiciary, after honourable resistance to a lot of pressure, prevailed.3 The would-be assassin was sentenced to life imprisonment. Better-known failures by the executive include President Roosevelts court-packing plan in 1937,4 and Indira Gandhis attempts to control the Indian judiciary in the 1970s.5 But sometimes the executive succeeds. It has recently been allegedand this must be true because it appeared in that well-known journal of record published *L.Q.R. 206 by the Murdoch empire, The Australian newspaperthat it was so when Zulfiqar Ali Bhutto, former Prime Minister of Pakistan, was hanged on April 4, 1979. The then President of Pakistan, General Mohammed Zia ul-Haq, is said to have given hour-by-hour telephone instructions to the Chief Justice of Pakistan on how Bhuttos trial should be conducted with a view to prosecution success.6 A more recent reported example is that of Judge Maria Lourdes Afiuni. She is a Venezuelan judge who granted bail to a banker connected with the Venezuelan opposition. The banker thereupon fled Venezuela. President Hugo Chavez then had Judge Afiuni jailed. He announced on television that in another era she might have been brought before a firing squad. His Excellency did not apparently mention whether this event would have been preceded by a trial. The threats by judges to their own independence are perhaps more benign but less obvious than these. Before looking at them it is convenient to consider the views of a scholar, J. Gillis Wetter, who in 1960 contrasted English and German judicial style thus7 : An essential key to the understanding of Englands judiciary is that it is composed of gentlemen who are well acquainted with each other and with the bar. The leaders of the bar and the judgesregardless of their position in the hierarchyare equals, and feel like equals. These circumstances explain why the English judicial process is, in essence, a continuous discussion, which in all but superficial or detailed respects resembles any discussion among educated, informed and reasonable men. Reality bristles in English reports The style employed is restrained, as befits gentlemen. The style is that of masterful advocates defending their own conclusionsand, accordingly, the very opposite of that employed by members of a judiciary which is ingrained with notions of Government, officialdom and concepts like Staatsakt (emphasis in original). In contrast, Wetter said this of the dissent-free German style of 1960: Standing always unopposed by


differing opinions of equal rank, a German judgment is a solid, conclusive and solemn Staatsakt.8 Wetter considered that English judgments had a different audience from German. German judgments were addressed to academic scholars. English judgments were addressed to the losing party. Their function was the rendering of conclusive answers to the allegations of counsel.9 Naturally the allegations of counsel will be closely related to the facts. Now a discussion between educated, informed and reasonable people who are all equal, about arguments which are closely tied to the facts and which are advanced by advocates as equals to those reasonable people, can result in disagreements without any shame or ground for criticism arising. An act of State, whether addressed to an academic audience or not, does not permit the expression of disagreement. Whether or not Wetters portrait was accurate about German judgments in 1960, it has some verisimilitude for English judgments *L.Q.R. 207 of that period. As another scholar has said, English judgments then may be said to have had a quaint, quasi-conversational character , readability and scrupulous attention to the facts.10 Judgments were candid in admitting that their authors opinions had swung to and fro or remained subject to doubts. They revealed the distress which their authors felt at disagreeing with other judges.11 They were frank in expressing regrets about the injustice which the outcome might inflict on one party. They [were] not unanimous dooms handed down by a monolithic bench whose real thoughts [could] only be guessed at. They revealed humanity. They showed that each member of the court has fully met [his or her judicial] responsibilities and given the arguments presented scrupulous attention.12 It might be added that the judgments were generally not concerned to state legal principles which would solve all future problems. The judges were often content merely to decide the case on its legal merits as they saw them and leave it to posterity to determine which more general principle explained the outcome in that particular case and others in the same field. That is, they rested on what is now perhaps crudely called bottom up, not top down, reasoning. Two key characteristics of English judgments around 1960 were that they were delivered seriatim, and very often unreserved. The English practice thus stood in contrast with Justice Ginsburgs description of practice in many continental courts13 : Customarily, a case on appeal is initially assigned to one judge, as the reporter judge, who bears responsibility for its preparation. That judge immerses herself in the case and develops a report plus recommended disposition. In most cases, as one might expect, the reporters recommendation carries the day (emphasis added). But why might one expect this? One might expect it if the judges are of uniform ability and outlook. Or one might expect it if the non-reporter judges have abdicated responsibility to the reporter judge and failed to examine the case properly for themselves. Either way a question arises about the absence of independence. Not everyone has praised the English style of 1960. In 1984, A.W.B. Simpsonanother recently departed giantsaid it produced opinions which were rambling and excessively detached, which revealed undisciplined individualism and which showed a complete lack of any collegiate spirit.14 This observation is critical, but it is bitter-sweet: it does suggest that whatever the disadvantages of the English style in 1960, it both reflected and fostered independence of mind and spirit. The English tradition of oral hearings, and in particular of extempore judgment, survives, but it was stronger in 1960 than now. It prevented, and prevents, various dangers from arising. In 1960, both Court of Appeal and trial judges were ignorant of the case until it was calledsometimes deliberately and proudly ignorant, and not irrationally so. Of procedure in the Court of Appeal, Sir Raymond Evershed M.R. said that the court knew nothing of a case until it was opened by the *L.Q.R. 208 appellants counsel.15 There was no preliminary reading, there were no written skeleton arguments, there was no preliminary consultation with other judges. The appropriate parts of the pleadings and evidence, of any judgment below and of any authorities relied on, of which there were many fewer than nowwould be read and debated with the bench. An American judge summarised the virtues of this process thus: When everything is done in the openwhen there are no [written submissions], when the judges do no private research and have no staffs, and when they do not even deliberate at the end of an argument but immediately deliver their opinions seriatimpublic monitoring of judicial performance is facilitated. The judges can be seen to be doing, or not doing, justice. 16 Under that procedure counsel is in a position to protest if a crucial argument is not dealt with, and to


insist that it be dealt with. And counsel is in a position to protest if the case is decided on the basis of some point or authority not raised in oral argument, and to demand that a hearing on that point or authority be granted before the courts orders are made. The courts knowledge of this possibility caused and causes it to stick to what had been argued. Under the 1960 practice, there was much less opportunity than now for points not raised in argument to occur to the judicial mind after reservation, for there was less reservation. These aspects of the oral tradition are becoming attenuated by various forms of what might loosely be called case management, particularly the requirement to file written submissions. To the increased factual complexity of many caseswhether it be the result of the complexity of commercial transactions, or a growth in the detail of medical and other expert evidencehave been added increased complexity in legal analysis and voluminous reference to case law, much of it unreported and unreportable but easily obtainable through computer searching. As a result the strangely named documents called skeleton arguments often make the bones of a dinosaur look like those of a mouse. In these circumstances, although the delivery of unreserved judgments is still very common, the practice now often depends on much preliminary work which never took place in former times. The carrying out of that work raises a risk of conveying the appearance, or creating the reality, of prejudgment.17 Judicial independence can be threatened when judicial majorities attempt to muzzle minorities. One attempt took place in the International Military Tribunal for the Far East, which tried the major Japanese war criminals at Tokyo in 19461948. For various reasons three of the eleven judges arrived latethe representatives of the Union of Soviet Socialist Republics (Major-General Zaryanov), India (Mr Justice Pal) and the Philippines (Mr Justice Jaranilla). Before their arrival, the other eight judges agreed that there would be no separate or dissenting opinions at the conclusion of the trial.18 When Major-General Zaryanov *L.Q.R. 209 and Mr Justice Jaranilla arrived, they each accepted this agreement, though in the end Mr Justice Jaranilla did not adhere to it, since he wrote a separate judgment which, though substantially concurring, attacked some of the sentences for leniency. Mr Justice Pal did not accept the agreement. And he did not adhere to it, since he dissented on every significant issue. Apart from the Privy Council at that time, and the English Court of Criminal Appeal to a very large extent, it was the tradition of courts in England and India, as it was in other common law courts, to permit dissenting judgments. It was, and is, also normal for judges in that tradition not to be bound by decisions taken in their absence. What is significant is the attempt of eight judges to control the others in a climate of opinion which saw the courts conduct as being marred by dissenting opinions.19 It is a climate of opinion which may not be unique to Tokyo. A somewhat milder form of the Tokyo syndrome could arise in several ways. It could arise if there were talk within an appellate court of it being a collegiate court or a corporate court. This language must rest on the idea that there exists some college or corporation which possesses an artificial personality and mental state different from and greater than those of the individual human beings comprising the court. And the Tokyo syndrome could arise if it were said that there is a need to give unanimous guidance on this point. The cry might go up: We must speak with one voice. If it is pointed out that the court has badly erred in the recent past, or even acted per incuriam, one variant could be: We must not cast doubt on so recent a decision of the court. Another could be: To criticise what has happened will upset those responsible. Guileful blandishments could be employedcharm, flattery, humour and elaborate but insincere displays of courtesy. The message might be transmitted that those who disagree should say they agree. That is, polite or jovial invitations might be made to tell lies. In Chinese ruling circles splittism is extremely unpopular. Splittism can be condemned, though more urbanely, in common law judicial circles as well. Now dissenters in common law courts, unlike splittists in Chinese ruling circles, cannot be removed by coups, putsches or purges. They cannot be engulfed by Cultural Revolutions and sent into the fields for re-education. They cannot even be voted out of office by the people, save in some parts of the United States. Hence those who oppose them must resort to blandishments. The blandishments can be hard to resist. Some capacity to resist comes from the professional background of judges. Most judges are ex-advocatesexperienced in appearing for and against a wide range of parties, in standing up to judges when necessary, in exposing opposing arguments to critical scrutiny and in putting a competing view persuasively. An advocate has to think up arguments rising above a minimum level of plausibility and struggle on with their presentation through storm and stress whether or not the advocate personally thinks them valid. This is a form of independence, but an incomplete one. Judges need another sort of independence. It


lies in the willingness and ability to work out and say what they think is rightirrespective of what advocates agree on, what academic lawyers urge, what pressure groups desire, what media groups demand, what their colleagues seem to think, or what their colleagues want them to say. *L.Q.R. 210 Some justifications advanced for the practice of giving unanimous or majority judgments even though one or more of the adherents to those judgments disagrees are open to criticism. It has been said that in criminal appeals the court should not appear divided because the liberty of the subject is at stake20 and the courts are channelling the force of the state against its own citizens.21 This does not explain why there are dissents in criminal cases in the Divisional Court of the Queens Bench Division.22 And it does not answer the question: why lie about whether judicial minds differ on how far liberty should be restricted? Another assigned justification in criminal appeals is that, according to Blom-Cooper and Drewry, to the criminal, punishment itself is bitter enough, without the salt of a favourable but impotent dissenting judgment being rubbed into the wound.23 This is speculative. For all one knows, the existence of a dissenting judgment may afford comfort to the unsuccessful appellant. Indeed the same authors said a little later: the losing litigant likes to know that someone would have found for him.24 It shows that one member of the court considered the losers arguments sufficiently closely to accept them; and hence, if judgment was reserved, that the majority also considered them closely when they read the dissent in draft. And it showed that accused persons are treated in the same way as all other litigants, without adverse discrimination.25 Then it is argued that both dissenting judgments and concurring majority judgments increase prolixity and uncertainty. It must be conceded that they have often been accompanied by increased length. It does not follow that they must inevitably increase length or should do so. The argument that dissenting judgments increase uncertainty was put thus by White J. in the United States Supreme Court in his (dissenting) opinion in Pollock v Farmers Loan & Trust Company26 : [The] only purpose which an elaborate dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the conclusions of courts of last resort. But the law is to be found in majority judgments. It is not found in dissents. The majority opinion is binding even if there has been a dissent. A dissent may demonstrate weaknesses in the reasoning of the majority opinion, but the binding effect of that opinion is as strong as if it were unanimous. Courts operating under a system of stare decisis cannot fail to follow a majority decision which binds them merely because they lack confidence in it. Authorities are followed because they are authorities, not because their reasoning is admired. Hence it may be doubted whether dissent engenders uncertainty. Even repeated dissents in the face of well-settled authority are not open to that charge, though they are of questionable legitimacy for other reasons. *L.Q.R. 211 Concurring majority judgments raise a harder problem. Those which are not merely repetitive may introduce reasoning not found in the main judgment and may omit reasoning which is found in the main judgment, thus tending to make it harder to find out what the ratio decidendi is. Lord Mansfield said in Millar v Taylor 27 that the habitual unanimity of his court gave weight and dispatch to the decisions, certainty to the law and infinite satisfaction to the suitors; and the effect is seen by that immense business which flows from all parts into this channel. Weight, dispatch and certainty flowing from the assumed unanimity of judges are qualities only achieved and deserved where there actually is unanimitynot a mere camouflaging of disagreement by a spurious expression of solidarity concealing [their] true opinion. 28 In fact Lord Mansfield did not advocate the misleading adoption of camouflage. He admitted that where there was disagreement, whoever is right, each is bound to abide by and deliver that opinion which he has formed upon the fullest examination.29 That is so whether the judges disagree about a conclusion, or disagree only about the correct route to it. It is true that there is strong pressure for single majority judgments from three important groups. One comprises the judges bound by appellate court decisions.30 The second is the profession. The third comprises academic lawyers. Not all of this pressure is easy to understand. Practising lawyers and university law teachers are often highly specialised and expertmore so, on the topics in which they are expert, than most judges. It is their function to identify the ratio decidendi of a caseif there is one. Further, it is necessary to compare two courses. One course is to produce a succession of judgments


containing separate assenting and dissenting opinions that expose the difficulty of a particular point and alert the profession to possible future changes in the law. The other is to produce a series of seemingly (but not actually) unanimous judgments followed by a sudden new decision that without any prior warning revolutionises the law and damages those who have acted in the expectation that the law would not change. The former course enables the profession to warn about the risks and give advice about contracts and other measures accommodating them. The latter does not. The practice of those who earlier disagreed with majorities, sullenly or otherwise, while withholding their true opinions, may lead eventually to something which was not foreseen: an uncontrollable expostulation against a whole line of cases in which the dissenter has hitherto concealed his disagreement.31 It may be the case that some modern academic lawyers are not well positioned to complain of incoherence and obscurity in case law. That is because in many of their activities they are not concerned with attempting to expound the law as a coherent and clear systemeven though that is a valuable endeavour which many academic lawyers have traditionally carried out and still do. Rather they are concerned to fillet the law, to deride the attempts of judges to expound it, and even to try to explode it. The function of some academic lawyers lies almost exclusively in defaming judges. For journalists, no news is good news. Some academics live *L.Q.R. 212 in a Nineteen Eighty-Four world in which good judgments are bad judgments, but bad judgments are good news. The claim that separate assenting or dissenting judgments generate unacceptable uncertainty depends in part on a demonstration that unanimous or single majority appellate judgments invariably engender certainty. It would be possible to establish, through case-by-case analysis, that that enterprise has difficulties. An example is the unloved decision in Director of Public Prosecutions v Smith.32 Lord Kilmuir L.C.s speech extending the law of murder was concurred in by all the other Law Lords. Very few, either at the time or since, have thought it to have been correct or clear. The general reaction has been that of Mr Justice Fullagar, then a judge of the High Court of Australia, who one morning said to Sir Owen Dixon: Well, Dixon, theyre hanging men for manslaughter in England now. 33 Another example of the difficulties that can arise from judgments given in a single composite form is Privy Council advice before 1966. Since neither dissents nor separate opinions were permitted, there was no outlet for the expression of internal disagreementseither as to the correctness of the outcome or as to the path to the outcome. This created tensions. These tensions tended to be masked by assertions of an emollient, laconic and conclusory kind unsupported by any, or any detailed, expressed reasoning. This language, perhaps generated by bargaining, did not assist in making the law certain. The same thing can be said of some decisions of the Court of Appeal in criminal cases.34 Composite judgments raise questions. Who did the work? Did every judge understand the judgment? Did every judge closely examine it? Did a confident specialist assume dominance over nervous generalists? What, if any, compromises were made? It is sometimes said that all members of the court contributed equally to a composite judgment. The intellectual activity involved cannot be measured to that degree of precision. That is an extreme illustration of a fundamental difficulty in composite judgments. The same difficulty exists where a judge delivers a full judgment and the remaining judges say I agree. No doubt the judges do sincerely agree on something, but on what? On a sufficient selection of the main steps in the reasoning? Or on every word, including split infinitives and floating participles? Or on an intermediate position? The late F. A. Mann was bold enough to say just before his death, in his habitual blunt style35 : Law Lords who agree with an opinion may not necessarily analyse and scrutinise it to the same extent as would be required if they had to write their own opinions. Probably they read it through, agree with the result and the broad line of reasoning, perhaps make suggestions, but are less than precise and careful in so far as specific formulations, sentences or dicta are concerned. *L.Q.R. 213 Perhaps it would not even be regarded as polite to argue about individual phrases or incidental arguments. Agreement in anothers judgment creates the same suspicion as is created by slab quotation of evidence or authorities or legal writing, or by the verbatim acceptance of submissionsthe suspicion that the material so voraciously accepted has not in truth been properly understood, let alone evaluated, by the mind of the judge. The agreements reportedly reflected by composite judgments, or single judgments in which others have agreed, may be fragile. In several ways they may fail to provide the certainty and security for which the lower courts claim to look.


Thus dissenting judgments do not create uncertainty. Nor do separate majority judgments so long as a ratio decidendi among the majority can be discerned. The main source of uncertainty is discordant dicta among members of the majority, or succeeding majorities. The solution is not to shun dissent or multiple majority opinions. It is to minimise dicta of all kinds. Other reasons have been advanced for abstaining from dissent, principally in relation to Circuit Courts of Appeal in the United States Federal Court. It has been argued that some judges join a majority opinion, not because they agree with it, but because to dissent will magnify the effect of the majority opinion by drawing attention to it.36 It has also been argued that some judges refuse to dissent even though they disagree with the majority opinion out of a fear that if they dissented too often [their] colleagues would be annoyed and retaliate (perhaps unconsciously) by paying less heed to [their] views in other cases.37 If either of these practices exists, it is essentially disreputable. It has also been argued that most judges do not like to dissent because it frays collegiality.38 It is said that appellate courts need to co-operate and therefore place a premium on co-operative behaviour. It is said that the collegiate enterprise of appellate judging does not work well when the judges relations with one another become tinged with animosityand that is always a danger because of the way in which the members of the cooperative enterprise are selected.39 But too high a price can be paid for agreeable personal relationships and internal harmony. In this regard appeal is sometimes made to Mr. Justice Brandeis. One advantage in a dissenting judgment is that it points out to the majority possible errors they have committed, and gives them a chance to remove or sidestep them. Mr. Justice Brandeis adopted a practice which secured that advantage without actually dissenting. His practice was to circulate dissenting drafts but to withdraw them if he thought the majority opinion, although incorrect, was unlikely to cause real harm in the future. Mr Justice Brandeiss practice has been defended40 : Dissents and concurrences need to be saved for major matters if the Court is not to appear indecisive and quarrelsome, and the appearance of indecision and quarrelsomeness are drains on the energy of the institution, leaving it in *L.Q.R. 214 weakened condition at those moments when the call upon it for public leadership is greatest. One flaw in this reasoning is that it is not the appearance of indecision and quarrelsomeness that drains a courts energy, but their actuality. The behaviour of Mr Justice Brandeis certainly reveals, with respect, admirable qualities of self-effacement and modesty. But there are times when reality must be revealed. And a truthful representation of a reality consisting of division and quarrelsomeness within a court can be superior to a deceptive representation of unity and harmony. The technique of the separate dissenting or assenting judgment, whatever the arguments against it, reflects the traditional freedom of judicial expression in the common law tradition. Distinguished names have favoured it. It was the practice of the United States Supreme Court in its earliest days. Lord Reid followed the practice in eighty percent of the appeals he sat on.41 He justified it on the grounds that judicial prose should not be construed as if it were a statute, and that legal development was best fostered by separate concurring opinions supplementing each other and explaining the principles in such a way as to leave latitude for further developments in the course of future applications of the principles.42 Lord Bingham favoured the same practice in civil cases.43 It was a practice which Mr Justice Frankfurter thought healthy.44 Thomas Jefferson supported it. He disliked the idea of the justices arriving at a single opinion, huddled up in conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his own mind, by the turn of his own reasoning.45 Fearing the noiseless, and therefore unalarming instrumentality of the supreme court, he said: I must comfort myself with the hope that the judges will see the importance and the duty of giving their country the only evidence they can give of fidelity to its constitution and integrity in the administration of its laws; that is to say, by everyones giving his opinion seriatim and publicly on the cases he decides. Let him prove by his reasoning that he has read the papers, that he has considered the case, that in the application of the law to it, he uses his own judgment independently and unbiased by party views and personal favor or disfavor. Throw himself in every case on God and his country; both will excuse him for error and value him for his honesty.46 Finally, Chief Justice Gibbs thought that in general to have only one judgment in an appellate court dealing with a question of law was not wise.47 Many arguments can be advanced in support of the judicial freedom to dissent or give a separate


opinion. Some of those which are relevant to judicial independence may be grouped under four overlapping heads. The first is that it is *L.Q.R. 215 important that judges fulfil a duty of accountability to the parties and the public by revealing what each judge actually thinks. The second is that it is important that each judge show that the case has been given the closest personal attention. The third is the need to resist and control what might be called excessively dominant judicial personalities. The fourth concerns the importance of not drifting away from the issues which the parties want decided. The significance of the first factor is that on many legal and factual questions, sincere unanimity may not be possible. The appearance of unanimity may require compromise. Compromise can be misleading, because a compromise is a decision which no party to it believes to be entirely correct. The course by which judges avoid compromise and instead state, after conscientious consideration, what they believe, can be superior to expressing agreement with what they actually disbelieve. While many executive decisions do not have to be explained, all significant judicial decisions do. The powers possessed by judges are capable of causing vast harm, and reasons for judgment explain to the parties and the people how and why those powers have been used. The explanation should state the position of all judges, not just a majority. If in truth the law is unclear in the sense that judges disagree about its content, it is preferable that the truth about this disagreement be communicated, not concealed. The second factor supporting separate assenting or dissenting opinions is that they reflect the personal attention of the judges to the case and give evidence to the world at large that judicial responsibilities have been discharged.48 Speaking of the time when hearings were entirely oral and judgment was often given ex tempore, Sir Raymond Evershed M.R. said: The three Appeal Judges hear the case together: each, by hearing the questions of his colleagues, has the benefit of understanding the working upon the matter in hand of two minds in addition to his own.49 Observation of that processexamination of the reaction of each judge to what counsel said and what the other judges saidcould reveal evidence that the judges were discharging their responsibilities. That evidence can be harder to identify in joint judgments. Critics may infer from joint judgments, however unjustly, that the judicial process has been skimped or nonchalant or perfunctory.50 Separate judgments can deflect that suggestion. Separate judgments show individual judges facing up personally to the agony of decision rather than taking the easier course of siding with the crowd.51 The particular problem of the appellantthe loser in the court belowmust be remembered. Appeals are heard by judges more numerous than, often more senior than, and perhaps abler than, the members of the court complained about. That is so for a reason. Part of the losers complaint may be that the court below did not give the case full consideration. The loser is entitled to have the complaint being made given the full consideration of all members of the appellate court, not just the full consideration of one of them and a more superficial examination by the others. A detailed appellate judgment by one judge to which all others merely indicate assent without more inevitably conveys the impression, justly or not, that *L.Q.R. 216 the outcome is the fully considered decision of the first judgment, to which others have assented after much less personal consideration. A composite judgment written by one to which the others have not contributed, or have contributed little, may give the same impression. And even if a composite judgment contains an assurance that all members of the court gave the issues full attention, to the suspicious mind of a losing litigant that is only an assurance, not a demonstration. The provision of a non-prolix account by each judge of what that judge thinks escapes these criticisms. It shows, if it is the case, that the litigants arguments received more intense attention on appeal than at trial.52 The practice of composite or single majority judgments can raise questions about whether there has been uneasy compromise and intellectual fudge 53 of the kind which could be illustrated in some pre 1966 Privy Council advice. Compromise and fudge can arise when it may not be possible to secure a single majority judgment, or the widest majority, unless agreements about reasoning are cloaked in language which is so vague or bland or narrow that it represents no judges actual opinion, and is of no use to future courts in deciding future controversies.54 There may even be differences of style which prevent one judge agreeing with the others and make a single majority judgment undesirable. Often the style is the judge. For sometimes style is not merely a matter of form, but involves questions of substance. A third argument for separate assenting or dissenting opinions is that they show that the tendency of stronger judicial spirits to prevail over and lead weaker is or is not evident. Wilfred Trotter was a distinguished surgeon who flourished in the four decades before the Second World War. He was a humble, unassuming man, who, before he conducted a lung operation on King George V at Buckingham Palace, chose to journey there not by car or cab, but by bus. He contended that one


fundamental instinct in human nature had been overlooked: the herd instinct. He wrote a book, famous in its day but now forgotten, called The Instincts of the Herd in Peace and War. There is room now for an expanded editionThe Instincts of the Herd in Peace, War and Appellate Courts. There is room, too, for a retelling of the most famous account in history of herd behaviourthat of the Gadarene swine, who rushed headlong down a steep cliff into the Sea of Galilee and drowned. Indeed even apart from excessive influence from strong judicial personalities, there may in small groups be a cascade effect, it has plausibly been argued, by which on any issue people tend to flow along with what they perceive to be majority opinion.55 There is no doubt that some personalities can be more forceful than others. A few have the perhaps unconscious aura of Lord Reid, of whom it was said that in post-hearing conferences, not only a judge but a statesman was speaking.56 Others are conscious of their own forcefulness, and prepared to exert it. They exemplify the authoritarian personality. Thus Lord Wilberforce, who certainly had no weaknesses of intellect or character, said of Lord Diplock: Lord Diplock possessed *L.Q.R. 217 the quality of persuading his colleagues to the extreme . It almost got to the stage of a mesmeric quality Lord Diplock was a very persuasive man. He was a man who got his way in almost everything. 57 He prepared for oral hearings very thoroughly, to the extent that, according to one author, it was not unusual for him to have made up his mind before the appeal began, and indeed it is alleged that he sometimes wrote even the judgment before the appeal began. 58 That author said he would bully counsel who would not stand up to him in order to speed up the hearing.59 His biographers said that his consciousness of his ability made him dismissive of ideas at which his own fast brain had not arrived first and that the disdain he found increasingly difficult to conceal for judicial views contrary to his own sometimes stifled discussion and dissent.60 Lord Hope, looking back on his days as a barrister appearing before Lord Diplock, said: He didnt allow arguments to develop that he thought had nothing in them and he would sit on you at the very start of an appeal and really cut you short. It was very difficult to get through and his colleagues on the whole did seem to be pretty compliant and didnt really feel that they could speak up if he was saying there wasnt anything in the case, and then you found he wrote the judgment (emphasis added).61 Lord Diplock was thus an example of a group described by Lord MacDermott as having read their written material closely beforehand who have tended to push others into a line of thought too early.62 A Law Lord said that there was only one way for counsel to deal with Lord Diplock: Hit the ball back to him as hard as possible in the hope of stunning his hand. It was the only way to stop him walking all over you. 63 It may be inferred that his colleagues found Lord Diplock as hard to resist as counsel did. So stronger judicial personalities tend to push the weaker into submission. They stare out from their judgments with the superb arrogance of noblemen in Renaissance portraitsutterly confident of their own ability, pretty sure that no other judge has yet grasped the key points and that some may never do so, certain that the parties have not, glorying in their self-perceived terribilit. It is no sin to have a strong judicial personality. Independent judges often need to display, if not leonine courage, at least some gumption. But strong judicial personalities in conjunction with judicial herd behaviour can cause grave dangers to arise from the now fashionable judicial conferences, whether the conference is held before oral argument is commenced or after it has concluded. These conferences are antithetical to the common law adversary tradition, according to which all judicial work except the solitary composition of reserved judgments is conducted in public. *L.Q.R. 218 Judicial conferences before oral argument can have value. They can help the court to isolate what is in issue. They can enable it to give the parties advance notice of points which may have been overlooked or insufficiently developed. But in pre-hearing judicial conferences the activities of dominant judicial personalities carry the danger of creating the appearance and the reality of prejudgmenta closure by members of the court of their minds too early, before a word of oral argument has been uttered. The independence of the bench rests in large measure on the independence of the bar, and the independence of the bar is at its most important during oral adversary argument in public. Pre-hearing judicial conferences can impede the exercise by advocates of their independence of approach. Chief Justice Dixon, perhaps thinking of the in-court style of his earliest predecessor, Chief Justice Griffith, spoke of the process by which arguments were torn to shreds before they were fully admitted to the mind.64 Some counsel now think that they are often torn to shreds before they have fully left counsels mouth. There is no doubt that some counsel dislike intervention, because it can disturb the flow of an address. It can cause ideas which counsel meant to develop to be sidelined and eventually to vanish without trace into oblivion. For the same reason, some appellate judges dislike intervention too. They dislike judicial interruptions which prevent a


plausible but not fully understood argument by counsel from being put in the way that counsel would wish it to be put. Dr Soekarno used to boast about how under his dictatorship Indonesia enjoyed guided democracy. Some judges may give the parties the benefit of guided advocacy, through which, by a series of ponderous pushes and leading questions, the debate is moved into an area which may interest some members of the court but is not that on which the parties chose to fight. If those tactics fail, others may be employed. The answers to questions can be interrupted, brutally and continuously. The questions of other judges which may illuminate the arguments which the parties wish to advance, or the answers to those questions, may be cut short. Judges who might be minded to dissentor who merely wish to understand precisely what argument is being putare deprived of the assistance which they are entitled to receive. Even when, by gracious permission, counsel manage to complete answers to judicial questioning, the confidence of the advocate can be deflated by contemptuous grunts and sceptical snorts and incredulous eye-rolling. In these ways are barristers dissuaded from independently presenting their clients cases. Further, a court which is afflicted by prejudgment arrived at in a pre-hearing conference is likely to fail to deal fully and fairly with the reasoning advanced for the losing party, not only in oral argument, but also in the judgment. It is likely to limit its own reasoning to dogmatic pronouncements of conclusion. The proneness of counsel to prolixity, perhaps accentuated latterly by their fear of being sued for negligence, often causes them to advance every possible argument. Some of them may be too trivial to merit substantial separate treatment. But strong judicial personalities can seek to identify a supposedly crucial point which makes it arguably unnecessary to deal with the losers significant arguments. They then ignore them in the judgment. The losing party must not be left to wonder whether the court gave an adequate opportunity for all that partys arguments to be dealt with; whether, if it did, those arguments were considered; and, if not, whether if they *L.Q.R. 219 had been the result might have changed. The losing party cannot be left to wonder whether a proper hearing took place. Slightly different dangers, associated with the fourth factor, arise from collective deliberation after oral argument has concluded. The secret debate among the bench can move further and further from the parameters of the public debate between bench and bar. This can happen even if there is no single dominant judicial personality, but the process can be accentuated by the presence of one or more of them. Bright idea can be trumped by brighter idea. The meeting can be seduced by suave glittering phrases. Each bright idea, each brilliant phrase, can move the participants away from what the parties said, from the particular facts of the case, and towards general pronouncements about the future of the law unaided by the submissions or peculiar predicament of the parties. By a process of self-hypnosis those at the meeting can begin to drift from their duty to solve the problem of the parties before the court and begin to regulate the affairs of much wider classes who are not before the court. Justice is not delivered and the law is not satisfactorily developed by judges who simply propound propositions attractive to their minds without prior notice to the parties. Those propositions need to be examined in adversary argument in the course of which principle is closely related to the crucial detail of the particular facts, and in the course of which each side critically analyses the contentions of the other and the possibilities raised by members of the court. To a large degree the law has developed out of intense and painful dramas. In cases involving those dramas the reputation, the property, or the liberty of a particular party is at stake. In them, ideally, all parties are represented by skilful and forceful advocates. In them the outcome turns on the decision, one way or the other, of a particular issue which is perceived by all to be, and which is, crucial. Into the debate on each side the advocates put every available bit of learning, persuasive skill, and sometimes passion. The conflict between informed advocates on that crucial issue takes place in public. That is, it takes place before their professional peerspersons unaccustomed to mercy when judging forensic performance. And it takes place before judgespersons under an obligation to sharpen the conflict by independent testing. In those circumstances an intense friction can build up. That friction in turn generates a terrible energy capable of illuminating the law. People who have forgotten the stress of those hard and bitter struggles, or who never knew it in the first place, may not find it easy to understand how greatly their stern discipline can purify thought. It purifies thought by burning away the dross of irrelevance, loose reasoning and facile analysis; and by sharpening focus, clarifying perception and strengthening grip. This entire process is directed not to abstract inquiries or seminar debate about issues which did not concern the parties, to which the parties did not contribute, and which arose as an afterthought once argument had concluded. Instead it is directed to quelling actual controversies dealt with in open court. It searches for answers which it is necessary to give to live questions having a direct impact on the interests of the parties. Judges who become unduly immersed in post-hearing conferences tend to forget these considerations.


The function of independent judges is to concentrate on their personal views of what constitutes a just outcome according to law after full argument from counsel. Post-hearing conferences weaken that concentration. *L.Q.R. 220 A related difficulty caused post-hearing discussions to be disfavoured by an Australian judge, Mr Justice Walsh. Torts specialists will remember the praise given by the Privy Council to his judgment at trial in The Wagon Mound.65 He was a man of massive intellectual integrity. In a recent reminiscence, Sir Anthony Mason, who sat briefly with him on the High Court before his untimely death, after paying tribute to him as an extremely good but rather unfashionable lawyer who had a fine, disciplined mind and was greatly admired by the Bar, said that he had one unusual characteristic. He was unwilling to discuss a judgment after argument had concluded until he had thought the case through and arrived at his final conclusion. He evidently thought that, by expressing a tentative view, he might compromise his impartial judgment (emphasis added).66 The description of this characteristic as unusual is significant. And it follows from Mr Justice Walshs concerns not to compromise the impartiality of his personal judgment that he would not have seen his role as being to search for the collective view of a college or corporation of judges. Rather he saw his role as being to reflect on the adversarial argument he had heard and give his response to it. Post-hearing judicial conferences might possibly be associated with another risk. That risk is that post-hearing meetings may lead to the selection of one judge, who perhaps took a confident and aggressive role at the post-hearing meeting, to prepare a draft. When that draft is circulated, it may turn out to be lengthy and subtle. It may contain a complex and detailed analysis of a mass of evidence. It may containeven though it should not67 discussion of many authorities not referred to by the parties, not raised by the parties with the court, and not mentioned in the post-hearing meeting either. If other judges were then to circulate indications of agreement thirty minutes later, or an hour or two later, or even a day or two later, it would seem that there has not been a careful absorption and checking of everything said in the long draft. If those judges were challenged in that way, they might respond by saying that speedy concurrence is entirely in order if one is well prepared, if one is familiar with the law, if one followed the oral argument closely, and if one attended carefully to what was said in the post-hearing meeting. But as Churchill said in the different context of the Gallipoli campaign, the terrible ifs accumulate. Critics of multiple judgments often fall back on an assertion that there should be an attempt to avoid needless repetition among several judgments by ensuring that only one sets out the facts, the statutes, perhaps the relevant authorities and perhaps the parties arguments.68 It is said to be desirable to be more collegiate, and waste less time in duplicating work.69 No doubt seeming repetition can be tedious for readers of all kinds. The trouble is that individual perceptions of the *L.Q.R. 221 material facts can differ subtly but crucially. So can perceptions of the real issues, the relevant authorities, and the significant arguments. More fundamentally, putting aside a particular judges dislike of another judges techniques of style, which is sometimes a trivial thing and sometimes not, attempts to state ideas in particular sets of words can alter the ideas as the words change. One does not really grasp the flow of a chain of reasoning until one writes it out in ones own words. Assent to what one conceives to be the reasoning of another person after reading the words used by that person is no substitute. The initial views of a judge as to what orders should be made may change because the conclusion reached by silent thought often alters after the judge attempts to write down reasoning which would justify the conclusion, but finds it impossible.70 The work of another may be apparently convincing, but to adopt it, even if only in parts, carries risks. Frequently flaws will be found in it laterflaws that would have been detected if one had carried out all the work oneself. Like much other legal work, judicial work is personal. Delegation of judicial workwhether in whole or in part, and whether, in the American style, to clerks, or in a more universal style, to the writer of the first judgmentis a pernicious thing. Judges cannot understand the evidence and the law unless they work through it for themselves. It is said that any encouragement to judges to write dissenting or seriatim opinions, who would not otherwise do so, is encouraging an increase in the length of judgments. It is also said that that increase will tend to flow from any encouragement given to judges to set out the facts, issues and arguments in their own way. There is no doubt that in itself excessive length is bad, and to be avoided. Length has grown, is growing, and ought to shrink. But the writing of a separate opinion does not necessarily generate excessive length. A separate opinion need not be a long separate opinion. Brevity often increases the power and trenchancy of legal reasoning. The problem is that often it takes time to achieve brevity, and appellate judgesparticularly judges in busy intermediate


appellate courtswho are under pressure to produce speedy judgments do not have much time. It is wrong, then, for judges to abstain from disagreement merely because it is convenient to drift along with the majority view, or to submit to raw power, or to avoid unpleasantness, or to escape the work involved in explaining why a majority is wrong, or to avoid lowering the public reputation of the institution, or to seek to achieve the appearance of unity and uniformity for its own sake. Members of the legislature or the executive can often legitimately behave in this way. Those branches can legitimately make compromises in the interests of achieving practical outcomes that can be revisited in the near future if they fail to work.71 But compromise is alien to the process of doing justice according to law. A compromise adverse to the interests of a losing litigant cannot be revisited. An unsatisfactory compromise about the law is difficult to revisit. When judges make the law, they have choices before them, but once they have chosen, the law relevant to a particular controversy can take only one correct form. The facts properly found can take only one correct form. The application of the law to the facts, leaving discretionary decisions on one side, can only lead to one correct result. Judicial disagreements *L.Q.R. 222 on these questions exist because the problems can be difficult. The difficulties are better revealed than concealed. The behaviour of those judges who advocate or choose the course of concealment rather than revelation constitutes the most insidious of threats to judicial independence. Whether they realise it or not, they are the enemy within. J.D. Heydon Formerly a Judge of the High Court of Australia L.Q.R. 2013, 129(Apr), 205-222


This is based on a lecture delivered on January 23, 2012 at the Cambridge Law Faculty and the Inner Temple; on January 24, 2012 at the Oxford Law Faculty; and on January 26, 2012 at Herbert Smith & Co. This address must not be taken to be speaking about the actual behaviour of any particular court of which the author has been a member, but to tendencies or possibilities in courts in general. A. Paterson, Lawyers and the Public Good: Democracy in Action? (Cambridge: Cambridge University Press, 2012), at p.185. Quoted in E. Foss, The Judges of England (London: Longman, Brown, Green, Longmans & Roberts, 1857), Vol.VI, at p.194. Slightly different language is given by C. Young, The History of Judicial Dissent in England: What Relevance Does It Have For Modern Common Law Legal Systems? (2009) 32 A.B.R. 96 at 107; by J.H. Baker, Due Process and Wager of Law: Judicial Conservatism in the Tudor Common Pleas in K. ODonovan and G. Rubin (eds), Human Rights and Legal History: Essays in Honour of Brian Simpson (Oxford: Oxford University Press, 2000) ; and by E. Lodge, Illustrations of British History, Volume 2: Biography and Manners in the Reigns of Henry VIII, Edward VI, Mary, Elizabeth and James I Exhibited in a Series of Original Papers Selected from the Manors of the Noble Families of Howard, Talbot and Cecil, 2nd edn (London: John Chidley, 1838), at p.278. D. Keene, Emperor of Japan: Meiji and His World, 18521912 (New York: Columbia University Press, 2002), at pp.448458. N. Feldman, Scorpions: The Battles and Triumphs of FDRs Great Supreme Court Justices (New York: Twelve, 2010), at pp.103121. G. Austin, Working a Democratic Constitution: The Indian Experience (New York: Oxford University Press, 1999), Chs 726 ; T.R. Andhyarujina, The Kesavananda Bharati Case: the Untold Story of Struggle for Supremacy by Supreme Court and Parliament (New Delhi: Universal Law Publishing Co, 2011). B. Loudon, Reopening of Bhutto Case a Chance to Heal, The Australian (April 4, 2011), at p.9. J.G. Wetter, The Styles of Appellate Judicial Opinions: a Case Study in Comparative Law (Leyden: A. W. Sythoff, 1960), at pp.3233 and 35 (footnotes omitted). Wetter, The Styles of Appellate Judicial Opinions (1960), at p.26. Wetter, The Styles of Appellate Judicial Opinions (1960), at p.72. R. Munday, Judicial Configurations: Permutations of the Court and Properties of Judgment [2002] C.L.J. 612 at 628. Munday, Judicial Configurations [2002] C.L.J. 612 at 631632. Munday, Judicial Configurations [2002] C.L.J. 612 at 634. R.B. Ginsburg, Remarks on Writing Separately (1990) 65 Wash. L. Rev. 133 at 137.






6. 7.

8. 9. 10. 11. 12. 13.

Page12 14. A.W.B. Simpson, Lord Denning as Jurist in J.L. Jowell and J.P.W.B. McAuslan (eds), Lord Denning: The Judge and the Law (London: Sweet & Maxwell, 1984), at pp.450451. R. Evershed, The Court of Appeal in England (London: Athlone Press, 1950), at p.25. R.A. Posner, Law and Legal Theory in England and America (New York: Oxford University Press, 1996), at p.75 (emphasis in original). A. Paterson, Does Advocacy Matter in the Lords? in J. Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (Oxford: Hart Publishing, 2011), at p.277. A.C. Brackman, The Other Nuremberg: the Untold Story of the Tokyo War Crimes Trials (London: HarperCollins, 1989), at p.78. See also B.V.A. Rling and C.F. Rter (eds), The Tokyo Judgment: The International Military Tribunal for the Far East (IMTFE) 29 April 194612 November 1948 (1977), at p.16. J. Stanton, Canada and War Crimes: Judgment at Tokyo (2000) 55 International Journal 376 at 395. P. Darbyshire, Sitting in Judgment: The Working Lives of Judges (Oxford: Hart Publishing, 2011), at p.339. 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 [2002] C.L.J. 321 at 341. 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 [2002] C.L.J. 321 at 342. L.J. Blom-Cooper and G. Drewry, Final Appeal: a Study of the House of Lords in its Judicial Capacity (Oxford: Clarendon Press, 1972), at p.81. Blom-Cooper and Drewry, Final Appeal: A Study of the House of Lords in its Judicial Capacity (1972), at p.89. M. Kirby, Judicial DissentCommon Law and Civil Law Traditions (2007) 123 L.Q.R. 379 at 393. 157 U.S. 429 (1895) at 608 (Harlan J. concurring). (1769) 4 Burr. 2303 at 2395 fn.79; 98 E.R. 201 at 251. Blom-Cooper and Drewry, Final Appeal: a Study of the House of Lords in its Judicial Capacity (1972), at p.79. Millar v Taylor (1769) 4 Burr. 2303 at 2395; 98 E.R. 201 at 250251. For example, R.J.A. Carnwath, Devil We Know or Fresh Start? Counsel (June 2008), at p.7. Blom-Cooper and Drewry, Final Appeal: a Study of the House of Lords in its Judicial Capacity (1972), at p.84. [1961] A.C. 290. P. Ayres, Owen Dixon (Melbourne: Miegunyah Press, 2003), at p.276. Legislation has since 1907 precluded separate judgments unless the presiding judge considers it convenient that separate judgments be pronounced: Criminal Appeal Act 1907 (Eng.) s.1(5); Criminal Appeal Act 1966 (Eng.) s.2(4) ; Senior Courts Act 1981 (Eng.), s.59. The pronouncement of separate judgments is uncommon: 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 (2002) 61 C.L.J. 321 at 340341. Lord Devlin surmised that the terse technique of the joint judgments was employed because any elaboration might disclose a reason which ill-natured persons might try to turn into a ratio decidendi: The Judge (Oxford: Oxford University Press, 1979), at p.187. F.A. Mann, The Single Speech (1991) 107 L.Q.R. 519 at 519520. R.A. Posner, How Judges Think (Cambridge, MA: Harvard University Press, 2008), at pp.10, 30 and 32. Posner, How Judges Think (2008), at p.30. Posner, How Judges Think (2008), at p.32. Posner, How Judges Think (2008), at p.33. J.P. Frank, Book Review (1958) 10 J. Leg. Ed. 401 at 404 (reviewing A.M. Bickel, The Unpublished Opinions of Mr. Justice Brandeis (Cambridge, MA: Harvard University Press 1957)). Blom-Cooper and Drewry, Final Appeal: a Study of the House of Lords in its Judicial Capacity (1972), at p.156. Gallie v Lee [1971] A.C. 1004 at 1015; Broome v Cassell & Co Ltd [1972] A.C. 1027 at 1085; [1972] 2 W.L.R. 645; [1972] 1 All E.R. 801.

15. 16.



19. 20. 21.



24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34.

35. 36. 37. 38. 39. 40.

41. 42.

Page13 43. 44. 45. Paterson, Lawyers and the Public Good: Democracy in Action? (2012), at p.182. Graves v New York; Ex rel OKeefe 306 U.S. 466 (1900) at 487. Letter to Thomas Ritchie, December 25, 1820 in P.L. Ford (ed.), The Works of Thomas Jefferson (New York: G.P. Putnams Sons, 1905), Vol.12, at pp.177178. Letter to William Johnson, March 4, 1823 in Ford (ed.), The Works of Thomas Jefferson, Vol.12 (1905), at pp.279280. Johnson was an Associate Justice of the Supreme Court of the United States from 1805 to 1833. H. Gibbs, Judgment Writing (1993) 67 A.L.J. 494 at 501. Blom-Cooper and Drewry, Final Appeal: a Study of the House of Lords in its Judicial Capacity (1972), at p.80. Evershed, The Court of Appeal in England (1950), at p.26. H.F. Stone, Dissenting Opinions Are Not Without Value (1942) 26 Journal of the American Judicature Society 78. J. Alder, Dissents in Courts of Last Resort: Tragic Choices? (2000) 20 O.J.L.S. 221 at 240. Munday, Judicial Configurations [2002] C.L.J. 612 at 635636 and 640641. Munday, Judicial Configurations [2002] C.L.J. 612 at 637, fn.96. M.H. Arden, A Matter of Style? The Form of Judgments in Common Law Jurisdictions: a Comparison (paper presented at conference in honour of Lord Bingham, Oxford, June 30, 2010), at p.7. C. Sunstein, Why Societies Need Dissent (Cambridge, MA: Harvard University Press, 2003), esp. at pp.4, 23, 54, 5960, 93 and 167169. Quoted in A. Paterson, Scottish Lords of Appeal 18761988 [1988] The Juridical Review 235 at 251. G. Sturgess and S. Chubb, Judging the World (Sydney: Butterworths, 1988), at pp.275276. Paterson, Does Advocacy Matter in the Lords? in Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2011), at p.257. Paterson, Lawyers and the Public Good: Democracy in Action? (2012), at p.176. S. Sedley and G. le Quesne, Diplock (William John) Kenneth, Baron Diplock (19071985), 16 Oxford Dictionary of National Biography (2004), at p.254. Paterson, Does Advocacy Matter in the Lords? in Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2011), at p.258. Quoted by Paterson, Does Advocacy Matter in the Lords? in Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2011), at p.257. Quoted by Paterson, Does Advocacy Matter in the Lords? in Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2011), at p.266. Swearing in of Sir Owen Dixon as Chief Justice (1952) 85 C.L.R. xi at xiv. Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) [1967] 1 A.C. 617 at 632; [1966] 3 W.L.R. 498; [1966] 2 All E.R. 709. Address delivered at opening of Law Term Judges Dinner, Supreme Court of New South Wales, January 31, 2008 at [42]. Rahimtoola v Nizam of Hyderabad [1958] A.C. 379 at 398 ; Pantorno v The Queen (1989) 166 C.L.R. 466 at 473; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 C.L.R. 89 at 149152, [131][135]; and Friend v Brooker (2009) 239 C.L.R. 129 at 171174, [114][118]. See A. Paterson, The Law Lords (London: Macmillan, 1982), at pp.3843 ; Paterson, Does Advocacy Matter in the Lords? in Lee (ed.), From House of Lords to Supreme Court: Judges, Jurists and the Process of Judging (2011), at pp.260261. Darbyshire, Sitting in Judgment: The Working Lives of Judges (2011), at p.385. Lord Bingham endeavoured, not always successfully, to have the facts covered by no more than one judge: see Paterson, Lawyers and the Public Good: Democracy in Action? (2012), at p.183. Law Lord to Darbyshire, Sitting in Judgment: the Working Lives of Judges (2011), at p.405. R.A. Posner, Judges Writing Styles (and Do they Matter?) (1995) 62 U. Chi. L. Rev. 1421 at 14471448.


47. 48. 49. 50. 51. 52. 53. 54.


56. 57. 58.

59. 60.




64. 65.




69. 70.

Page14 71. Kirby, Judicial DissentCommon Law and Civil Law Traditions (2007) 123 L.Q.R. 379 at 399.
2013 Sweet & Maxwell and its Contributors