The growth of the modern judgment

I have to admit that I have been listening to judges or reading their judgments for nearly half a century now.  Over that period of time, there have been obvious changes in judgments, in particular that generally they have got much, much longer.  One change that bemuses me is now:  Why do Judges regularly give themselves detailed directions as to fact-finding?

Fact-Finding is the Judge’s job –  So why the instructions?

This is bemusing.  After all, fact-finding is what they do.  If you engaged a plumber to work at your house and they informed you that they spent one hour each morning reading a basic manual on plumbing, you would not be very confident about the work they were about to undertake.

Submissions, padding and the rising cost of litigation

In part, I think you could argue that these padded Judgments reflect the heavily padded submissions made to judges.  This over-elaboration of often relatively straightforward disputes seems to achieve nothing more than a massive increase in costs to the parties involved.  It might be better if judges attempted to cut through this process rather than joining in.

Gestmin, common sense and the limits of formalised Fact-Finding

The discussion in Gestmin is undoubtedly sound.  However, you would expect that a person who had been entrusted with fact-finding would not need reminding for example, that a contemporaneous document is much more likely to be accurate than a different recollection many years after the event.  

Has this approach improved the quality of judicial decision-making?

The question then arises as to whether this more laboured approach to fact-finding has improved the quality of decision.  My clear impression is that it has not.  A template for wise and humane fact-finding can be found in Tom Bingham’s essay “Judge as Juror”.  It is rare to see a judgment which encompasses all the wisdom in this seminal essay.  Rather, judgments, despite their length, often seem to be resolved by subjective views of the parties and their cases.  

The Appeal Courts and the near-immunity of Findings of Fact

I think there are two main reasons for this decline in  fact-finding.

First, the approach on appeal to findings of fact has now crystallised as one of heroic resistance. I understand that appellate courts are overloaded with immigration appeals where the right to appeal is automatic, and by complex but ultimately spurious arguments in high-value commercial cases.  However, my impression is that parties aggrieved by decisions are more disturbed by perverse findings of fact than errors of law.  The threshold now established appears to be that a finding of fact can only be overturned if no sane Judge would have reached the same conclusion.  On a recent application for permission to appeal, a High Court Judge remarked, “I appreciate that different Judges may have decided this case in a different way.” This sets an impossibly high bar for appeal in the vast majority of cases.

Judicial experience, social mobility and narrow perspectives

Secondly, the experience base of Judges now appears to be more restricted.  What might be described as the commercialisation of education  and a lack of social mobility has resulted in many Judges following a seamless path to the bench.  This usually comprises education at an expensive school, attendance at a prestigious university, entry into a well-paid job or profession and then rising to a position of authority.  This process can be seen also in relation to politicians who come to serious responsibility with a very narrow breadth of experience.  

Then and now: Experience, insight and judicial wisdom

The Judges I first appeared in front of had many difficult qualities.  They often displayed attitudes and behaviours which would be considered wholly unacceptable today.  However, they had grown and developed in a different society.  Many had fought in the war or undertaken National Service.  For all their faults, they did have insight into what goes on in the world.

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