In simple terms, it denotes that the court has reserved its judgment, in contrast to the so-called ex tempore judgment, which is pronounced in court immediately the hearing finishes.

The use of Latin, though under increasing scrutiny, is one of the established features of common law systems throughout the world. Some judges continue to espouse the use of Latinisms in their judgments. There are phrases which pithily encapsulate a concept, principle, maxim or doctrine in a way which the English language cannot match. Consider, for example, audi alteram partem, nemo judex in causa sua, res judicata, ignorantia lexis non excusat, ad hoc, per incuriam, bona fide and pro tanto. And surely the elegance and concision of delegatus non potest delegare has no rival in the English language.

It may be argued that Latin has no place in the modern judgment. However, some would contend that its use is perfectly acceptable, provided that the audience understands what is said or it can be readily and quickly explained, for example by a legal representative to the client.

Training through absorption

A feature of our common law system is that those appointed to judicial office are not trained judges, which is in sharp contrast with other legal systems. For example, Sir John Megaw, the highly respected Chancery judge previously a leading commercial Silk and rugby player of note, reputedly said, when appointed a High Court judge, that he felt like a player who was pulled out of the scrum, given a whistle and told to get on and referee the match. Until relatively recent years, the position was no different. One was expected to have picked up from regular work in court an idea of how judges should go about their business. We received no formal training nor assistance in such practical matters as writing judgments, but were expected to have absorbed this from listening to and reading judgments while in practice and from writing endless opinions.

The function of a judge is to reach a decision and to express it clearly and unambiguously in language which can be readily understood. Elegance of language may be a desirable bonus, but it is less essential than precision of expression and clarity of reasoning. Allied to this is the important factor, especially at first instance, of sufficiency and clarity of findings. Young barristers used to be told ‘You are paid for your opinion, not your doubts’, and the same applies with even greater force to a judge.

Habitués of the law reports

Professor FH Newark in his article ‘The Anatomy of a Law Report’, (1965) 16 NILQ 371 (reproduced in the book of his writings Elegantia Juris, at p 266) was somewhat disapproving of resort to the common form judgment, which he regarded as the mark of a pedestrian judge, but acquaintance with its structure is a useful starting point: ‘The most usual form – in fact it might be called the ‘common form’ pattern of judgment – is as follows. Basically it can be described as “Find the facts – Find the law – Fit the facts to the law”.’

Newark went on to describe, in characteristically entertaining terms, certain types of judgment encountered in the law reports. There was the ‘crying shame’ judgment, spoken or unspoken, of which Lord Denning was a notable exponent: ‘In this case it will be a crying shame if the plaintiff does not get judgment. I will do the best that I can to see that he does get judgment, and I am not going to let a lot of stuffy precedents stand in the way if I can help it.’

Other regular habitués of the law reports are the ‘spurious legal history’ judgments, which Newark, as a real legal historian, dismisses rather sniffily as based on half-remembered knowledge from the judge’s student days; and the ‘too clear for argument’ type, of which Lord Halsbury LC was a famous exponent.

Newark’s own favourite is the ‘judgment of principle’, such as that of Lord Macnaghten in Quinn v Leathem [1901] AC 495, which gives effect to the principle enshrined in earlier precedents without going through what he calls the ‘dreary rehearsal’ of conflicting judgments in earlier cases. Such judgments are wholly admirable, but I would only say that they require skill, knowledge and experience of a very high order indeed and generally should be attempted only by senior appellate tribunals.

If the case goes on appeal, what is desirable and necessary is a sufficient exposition and analysis to show that the judge has considered each issue which arises and the reader can see why he or she has come down on one side or the other. As Sedley J put it in R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 All ER 651, 665: ‘The giving of reasons may among other things concentrate the decision-maker’s mind on the right questions; demonstrate to the recipient that this is so; show that the issues have been conscientiously addressed and how the result has been reached; or alternatively alert the recipient to a justiciable flaw in the process.’

While this statement was made in the context of a decision by an administrative body, precisely the same considerations apply to judicial decisions. I would only add a hint of one further point: well and clearly reasoned decisions tend to get upheld on appeal rather more readily: verbum sapienti satis.

Quality over quantity

One of the burning current issues is the length of judgments. The most famous judgment in history, that of King Solomon, comprised but a single sentence: ‘Give her the living child and in no wise slay it: she is the mother thereof’ (1 Kings, 3, 27).

While the equivalent is unthinkable in the modern judgment, there is complete consensus, however, on the proposition that judgments have become too long in recent years and commentators are wont to compare modern judges unfavourably with Willes, Blackburn and Macnaghten. I suppose that on this charge one must confess and try to avoid, but there are many reasons, practical and other, why this should have happened. One of them was nicely described by Newark, op cit, p 265: ‘One can understand why Lord Abinger’s judgments were short if you think of him writing them with his own hand by the light of a guttering candle and using a quill pen which needed frequent re-sharpening.’

How very true. Busy puisne judges sometimes protest that they do not have the luxury of the time necessary to write shorter judgments. There is no self-contradiction in this statement: it is one of the basic truisms in the modern judicial world.

The biggest criticism of judgments is that they are inadequately structured, rather than overly lengthy. In ‘Judgment Writing: An Antipodean Response’, 129 LQR 2013, 7, Professor Peter Butt enthusiastically espouses the adoption of a new practice, which I shall label ‘front loading’, whereby conclusions are moved to the front, with the evidence and fact finding shunted to the rear of the text.

His analysis reiterates the important factor of audience, by reference to the decision in MBF Investments v Nolan [2011] VSCA 114, a single judgment of a three-judge Victoria Court of Appeal, in a complex mortgage law case totalling some 30,000 words. The writer laments that the litigants had to pay twice over: once for the litigation and again for the cost of their lawyers explaining the prolix, almost impenetrable, judgment of the court. Lady Justice Arden will doubtless be pleased to learn that the Professor described her judgment in Cherry Tree Investments v Landmain [2012] EWCA Civ 736 as ‘a magisterial but also highly readable treatment of the facts and law’.

Classic works

The pithy or colourful phrase is another characteristic of judgments in a common law jurisdiction. Some judges have made it their trademark, such as Lord Denning. More to the taste of some, perhaps, is the opening sentence of Lord Devlin’s speech in McCutcheon v David MacBrayne Ltd [1964] 1 All ER 430, 435: ‘When a person in Islay wishes to send goods to the mainland, he goes into the office of MacBrayne (the respondent) in Port Askaig, which is conveniently combined with the local Post Office.’ Like one of Horace’s Odes, one could not change a word without damaging the flow of language and the reader quickly senses that the judicial artillery is rumbling into position to vindicate the rights of the humble islander over the wicked shipping company trying to rely on the small print in its conditions of carriage.

But there is room for the well-turned and memorable phrase, if used with discretion. What student of real property can forget Lord Macnaghten’s famous remark that ‘it is one thing to put a case like Shelley’s in a nutshell and another thing to keep it there’ (Van Grutten v Foxwell [1897] AC 658, 671)? And what of Lord Atkin’s simple question in Donoghue v Stevenson [1932] AC 562, 580, ‘Who, then, in law is my neighbour?’ which prefaced his enduring classic definition of the duty of care in negligence? These are matched in simplicity and persuasive power only by Bowen LJ’s famous observation that ‘the state of a man’s mind is as much a fact as the state of his digestion’ (Edgington v Fitzmaurice (1885) 29 Ch D 459, 483). The favourite of some, particularly those who share this recreational preference, is a remark by Lord Reid in Gollins v Gollins [1964] AC 644, 664: ‘No-one but a lawyer would say that I must be presumed to have intended to put my ball into the bunker because that was the natural and probable result of my shot.’

Bêtes-noires

How often does one see in a judgment, after a reference to a judge who was later promoted, the words ‘as he then was’? Why is this thought to be necessary? A judgment, like a will, speaks from the time it comes into operation. I also despair of the use of the word ‘respectfully’, which to my mind is aired far too often. Counsel use it forensically as a matter of courtesy to the court, or ironically, or without thinking about it at all or, in extremis, as a means of averting a hostile reception to their submissions, particularly when they are telling the court that it is talking through its hat (an occupational hazard of the judicial office). But in a judgment the correct use, in my view, is when referring to the judgment of another judge of cognate degree or a superior tribunal, whether one is agreeing or disagreeing (particularly the latter).

Case closed

Returning to the theme of the Latin maxim, interest rei publicae ut sit finis litium captures a concept to which Polonius gave memorable expression in Shakespeare’s Hamlet and the flavour whereof readily applies to this already lengthy disclosure. Ergo, struggling to find the mot juste (a diplomatic quid pro quo – oops, another one – to our Gallic neighbours), I hereby rest my case.