We legal historians have occasion to look at an array of different sorts of reports and records of cases, from the terse medieval plea rolls, via Year Books with their play-like format, through the slightly anarchic years of printed reports of varying standard and reliability, to the fuller, somewhat more easily understandable, reports of the nineteenth and twentieth centuries. There have been developments in recent years, however, which will one day need to be considered as part of a full history of the communication of legal decisions, via ‘official record’ and report. I am thinking of the huge expansion of material relating to cases which is now recorded and published in an easily accessible way. I think that it is arguable that the advent of the prepared essay style judgment, published online, has brought with it legal historically important changes,
One development which has impacted upon my professional world is the practice of publishing fuller and fuller judgments. This expansion is very noticeable in my main ‘day job’ legal subject, Land Law. I presume that, in the case of judges at lower levels in the hierarchy, the trend to longer judgments is prompted, at least in part, by a wish to ensure that, should a case be appealed, the lower-level judge would not be accused of having dealt with some point inadequately. Clearly, we are not the main consideration of judges, in their decisions to be more or less verbose, but it is something of a pain for those of us who want to encourage students to read cases (good luck with some of the massive proprietary estoppel ones in particular!).
It is not just length and the problems that presents for law professors and law students which is worthy of note, though: it is what is included. An issue I have mentioned before is that of judicial comment on witnesses, and the practice of judges including in written judgments and putting out into the public domain their views on the witnesses who appear before them. While judges in cases in which they sit alone, and in which there is a need to decide between different versions of the facts, must clearly make a decision as to which witnesses to believe, and should, in order to give a reasoned judgment, state which witnesses they regarded as more accurate, I am not convinced that it is necessary to go further into character assessment, publishing to the world comments on parties and non-party witnesses which might be hurtful, offensive or damaging to the individuals who have given evidence, and may well (I imagine) not have been expecting this sort of material to be disseminated.
Yesterday, I was reading a particularly interesting example of the genre: Gilpin v Legg [2017] EWHC 3220 (Ch). In this case, which concerned leases, licences and beach huts, the judge (HHJ Paul Matthews, sitting as a Judge of the High Court, in Bristol) commented in the following way, on various witnesses:
The father of a claimant was a ‘careful witness, who gave clear evidence. He accepted on occasion that his memory was at fault and accepted correction when it was shown that he was mistaken. He was doing his best to assist the court.’ (7)
A male claimant (a doctor) was ‘a slightly nervous but clear and straightforward witness. His memory appeared to be good. Once he got into his evidence he became more relaxed and comfortable. He was obviously truthful in the evidence he was giving.’ (8)
A female claimant was ‘a quiet and nervous witness, but rather prickly and apt to put up a barrage of words, often putting matters obliquely, and shying away from confrontation. Whilst I do not think that she told me any deliberate untruths, indeed was trying to help the court, I think she has convinced herself that she has been hard done by, that she is in the right, and so she interprets everything in that light.’ (9)
Another male claimant ‘gave clear and straightforward evidence, and was obviously trying to assist the court.’ (10)
A male defendant was ‘an intelligent and quick, even feisty, witness who saw the point of the question immediately, and gave clear evidence in response. Although he too believes strongly that he is in the right, and that does colour his evidence to some extent, he sometimes gave evidence against his own interest. On one occasion his tone became rather aggressive, perhaps through exasperation. I accept that he was otherwise trying to help the court and that his evidence was truthful.’ (11)
A male solicitor (the defendant’s litigation solicitor) ‘was a professional but slightly excitable, even enthusiastic witness.’ (12).
Another witness was ‘an elderly lady’. (13)
Though there was a need to express a view on the parties’ evidence, I am not sure that anyone needed the comments about a defendant’s ‘feistiness’ or why he might have adopted an ‘aggressive tone’ at some point’ or a claimant’s ‘prickliness’. I have to say that I would be fairly nervous – and quite possibly ‘prickly’ – if I had to speak in court, and knew that comments about me were going to be published in this way. And I am not sure that the ‘elderly’ or ‘excitable’ comments, in particular, were at all useful.
It does not seem to me that this sort of material helps anyone involved in modern legal practice, or that proper transparency and reasoning requires it. Of course, I am not just thinking about the present, and whether this is a good way of handling the assessment of credibility. There are legal history angles! The inclusion of this sort of material makes for an interesting comparison/contrast with some of the early reports of medieval common law cases, in which there are personal comments, but these relate to serjeants pleading before the Common Pleas or King’s Bench, rather than witnesses or parties. I do wonder what legal historians of the future will make of this sort of commentary. It does strike me that they might find it interesting to survey this sort of comment, cross-matching with characteristics of the commenting judge, and such matters as gender, age and professional status of the witnesses being subjected to these published assessments. They might well conclude that early 21st century judges were – in the formulaic incantation – ‘doing their best to assist’ legal historical scholarship.
GS
4/11/2023
Image – I am going with ‘prickly’ …. Photo by Klara Kulikova on Unsplash