The Supremes

A fascinating speech by Lord Neuberger has appeared on the judicial website. In it, the Master of the Rolls takes the unusual step of discussing a judgment he gave as a law lord – Re HIH Casualty and General Insurance Ltd, an insolvency case – and responding to criticism of it by Gabriel Moss QC.

“I must confess that the criticism he raises may well have some merit,” Lord Neuberger says. “The Lords, now the Supremes perhaps, even including the Master of the Rolls, are human, not divine, so we may err from time to time. In confessing though, this is not a case of some might say ‘buyer’s remorse’, but a recognition of the fact that if Gabriel Moss is right the issues in Re HIH may well need to be revisited by the courts.”

Those interested in insolvency law will no doubt read Lord Neuberger’s remarks with interest. I was more interested in his tongue-in-cheek conflation of the Justices of the Supreme Court with the leading Motown group of the sixties and seventies, an easy elision to make and one for which I myself must claim some responsibility.

Indeed, Lord Neuberger makes a glancing reference to his appearance on my Radio 4 documentary Top Dogs in a passage that introduces the second theme of his lecture: how should the Supreme Court approach its judgments in future?

I realise that some might say that having passed on the opportunity to be a Supreme Court Justice and elected for what one of my colleagues called an elective demotion, choosing the Court of Appeal and the office of Master of the Rolls, I ought to adopt a self-denying ordinance in respect of the Supreme Court.

Those of a philosophical bent might say that I should follow Wittgenstein and declare that “whereof I cannot speak, I must remain silent”. Those who heard my reported views on the Supreme Court might think that a wise course of action. Such an approach would no doubt leave you all feeling short-changed. So with all due respect to Wittgenstein, I shall offer some brief thoughts on the subject of judgment writing in the Supreme Court.

There are several options for the new court, he says. “It could adopt the single judgment approach, so beloved of the European Court of Justice and the Privy Council. Alternatively, it could adopt the approach, beloved of the US Supreme Court, and quite often adopted by the Australian High Court, of a single majority judgment with dissenting and/or concurring judgments.”

Each option has its merits.

Where the law is being developed in a significant area on a case-by-case basis there will be much to be said for a multi-judgment decision so that the judges, lawyers and academics can feel their way in a discursive manner. Where a practical rule is being propounded for application in the county courts, it is much better to have a single authoritative judgment.

However, in general, there is much to be said for the US Supreme Court approach, as the Australian High Court seems to think. The single majority judgment, with dissenting and/or concurring judgments, allows for a variety of opinions while providing relative clarity.

That seems a good idea to me. And there is some suggestion that the Supremes like it too. In their second judgment – Re Sigma, which happens to be an insolvency case – the first judgment is headed

LORD MANCE (with whom Lords Hope, Scott and Collins concur)

the second is headed

LORD COLLINS (with whom Lords Hope and Mance concur)

and the third is

LORD WALKER (dissenting)

On the same day, though, the Supreme Court gave a traditional five-judge ruling in a case about disclosure of a playground assistant’s criminal record. One of the speeches came from Lord Neuberger although he is not, as far as I know, a member of the Supreme Court.

Another came from Lord Saville, delivering what must have been his first judgment in over 10 years. Since he made a point of sitting in July while still apparently attending to the page numbering of his report on Bloody Sunday, you might have thought he would have a decade’s worth of wisdom to impart.  

Not quite. This was his judgment – in full.

I have had the advantage of reading in draft the judgment of Lord Hope. For the reasons that he gives I would dismiss this appeal.

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