The Lawyer labels a recent judgment as an attack on two Counsel, though I see it more as a comment on a prevalent culture of adversarialism. For me, and I hasten to add, I am not putting words into Lord Justice Thorpe’s (or Ryder J’s) mouth but simply offering my opinion, it is an interesting comment also on the dangers of a precedential Common Law System. The appeal turned on the fairness of a civil partnership dispute settlement. If I may quote from the Lawyer’s account of what the judges said:
Thorpe LJ stated: “In my judgment the present case was comparatively simple. It was made unnecessarily complicated as the advocates sought to achieve their goals by praying in aid one judicial creation or another.”
Ryder J added that there were risks to be considered when counsel over debate the meaning of fairness.
He said: “There’s a prevalent practice of coining ever more sophisticated phrases which are intended by practitioners to highlight particular aspects of the notion of fairness.
“That practice has created an expectation that the judge will consider the same in judgment. That expectation is inappropriate not least because the linguistic devices employed are not terms of art: they are no more than tools to assist in the interpretation of fact which should not be elevated to the status of factors that have to be considered alongside the section 25 criteria.
“Not only does such a misconception risk inappropriate weight being given to an analysis born out of a linguistic device, it carries with it the real danger of miscalculation.
Precedent is supposed to yield clarity; but if I interpret the judges correctly, here it has split principles into a complexity which allows all sides to be argued. Sometimes simplicity is better and judges have to be allowed to judge. The counterargument is that complexity yields certainty. There is a rule and there is an applicable fact and ‘hey presto’ there is an answer. This misunderstands how people (even judges I suggest) actually take decisions, and rests on the utopian idea that every, or even most, decision makers have access to, and can comprehend, the rules and the relevant facts when ordering their affairs. What this judgment suggests is that even for very (very very) sophisticated lawyers, too much complexity is self-defeating. Simplicity in law sometimes has its costs but, in certain contexts at least, it is fairer, quicker and cheaper. The judgment may be a timely reminder of the weaknesses of over-reliance on the importance of precedent and very fine analysis of judicial reasoning. It may be time to take a more principle-based approach.