All for one

Supreme Court president Lord Neuberger’s focus on collegiate working is resulting in fewer dissenting opinions on the bench

As the Supreme Court approaches its fifth anniversary, the highest court in England and Wales is entering a period of relative stability. Lord Hodge is the last judicial appointee expected to join the court until 2016, when the next set of retirements are anticipated.

This period of calm will give the president Lord Neuberger the opportunity to mould the court’s future. The former Master of the Rolls is developing a collegiate judicial bench and in the past year this has manifested itself in a distinct dearth of dissent.

Before it moved across Parliament Square from the House of Lords into the Supreme Court in October 2009, an average 22 per cent of cases in the House of Lords contained one or more dissenting opinions.

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According to former Supreme Court justice Lord Brown, there is value in dissenting. Essentially, he says, it enables further legal debate. Writing in Judge and Jurist: Essays in Memory of Lord Rodger, in 2013 he stated: “Ever since the House of Lords’ 1966 Practice Statement  (which applies similarly now in the Supreme Court) there has existed the possibility of the final court coming to recognise the error of its ways and deciding to depart from an earlier erroneous judgment.”

In the first three years of the Supreme Court dissent was on the rise, with 24 per cent of judgments including at least one dissenting opinion. Lord Rodger, who sat in the court between 2009 until his death in June 2011, departed from the majority opinion more than any other judge at the time, dissenting in 12 per cent of the cases he sat on. In 2 per cent he stood alone.

Contrast that with Lord Collins, who until 2000 was a partner at legacy Herbert Smith . He was the first of two solicitor-advocates to take silk in 1997 and made his way up the judicial ladder to sit in the Supreme Court between October 2009 and May 2011. During that time Lord Collins dissented only once from the majority.

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A new era

October 2012 brought to an end the era of Lord Phillips, the Supreme Court president who had overseen the move from the Lords to the Supreme Court three years earlier. To leading silks, his successor Lord Neuberger has been welcomed as a judicial modernist who, in the past, has been unafraid to lead by example.

Neuberger began his presidency by delivering the first annual BAILII lecture in November 2012, setting the tone for his leadership. 

“While I am emphatically not suggesting banning dissenting judgments,” he said, “it may be that we could have fewer of them and they could be shorter.”

He went on to recommend “more indolence”, and advised, “perhaps a judge who is considering dissenting should ask himself whether (i) he feels strongly enough, (ii) if the point is important enough, (iii) it would help the development of the law, and (iv) it would help the understanding of the law if there was a dissenting judgment.”

It may have taken a while for the message to sink in, but there followed an extraordinary eight-month period between mid-June last year and mid-February 2014 when there was not a single dissent.

Professor Alan Paterson of Strathclyde University, who has conducted extensive research into the final days of the Lords and the opening days of the Supreme Court, says: “This is unparalleled in 20 years”.

Lord Neuberger is not a judge  many in the Supreme Court disagree with. Between his arrival at the court in October 2012 and the end of the judicial year last July he was involved in 33 cases. Of those seminal decisions just three included dissenting opinions.

Lords Sumption and Clarke pulled away from the majority five (Lords Neuberger, Hope, Walker, Mance and Reed) in Prudential plc & Anor (Appellants) v Special Commissioner of Income Tax & Anor (Respondents) . Lord Clarke and Lord Reed dissented in VTB Capital plc (Appellant) v Nutritek International Corp & Ors (Respondents) (Lords Neuberger, Mance and Wilson rejected the appeal). And Lord Reed dissented against Lords Neuberger, Mance, Wilson and Sumption in Hayes (FC) (Respondent) v Willoughby (Appellant) .

The bench was divided in Bank Mellat (Appellant) v HM Treasury (Respondent) , where a nine-strong judicial panel debated the thorny issue of open justice. Lord Neuberger gave the substantive judgment in which he was supported by Lady Hale, Lords Clarke, Sumption and Carnwath. Lords Hope, Kerr and Reed, however, dissented. By a majority of six to three the Supreme Court quashed the rulings of the Court of Appeal and High Court, holding that the case could not be heard behind closed doors.

The ruling was the last split judgment for eight months until the 19 February decision in Williams v The Central Bank of Nigeria , when Lords Mance and Clarke dissented from the majority opinion led by Lord Neuberger.

Evidence of a shift towards greater collaborative working is strong, even if this is not universally popular. The Supreme Court judges have been asked by their leader to think carefully before writing a lone dissenting opinion. The result is that the number of lone dissents is in decline, with justices more likely to speak out if there are two dissenting voices.

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Speaking out

Lord Kerr is unafraid of speaking out on his own. Delivering the Birkenhead Lecture in October 2012, he attempted to justify dissent. 

“Majority and dissenting judgments […] engage directly with each other” in the final court, he said, adding that “certainty or finality in the law is an overrated concept”.

He continued: “Of its nature, law is an ever-changing process. It morphs, adapts and develops in response to previously unencountered arguments and unanticipated circumstances. Certainty of legal outcome is, in many fields, at most a temporary phenomenon.” 

It is a view many advocates would share if they found themselves on the losing side because dissent levels are too low.

A snapshot of dissents and solo dissents in the Supreme Court between October 2009 and July 2013 (see Table 1) shows Lord Kerr more likely to go it alone than his counterparts. Lady Hale, the only woman sitting on the bench, comes in second.

Between October 2009 and May 2011, Lord Rodger, Lord Kerr and Lady Hale had the highest dissent rate, each with 13 per cent. Lord Brown also produced a high dissent rate, at 11 per cent. Interestingly, these judges were least likely to vote together against lead judgments. Yet they were the most likely to pair up with others. For example, of the 42 times Lady Hale shared the bench with Lord Clarke between October 2009 and March 2013 they were in agreement 95 per cent of the time (see Table 2).

Lords Dyson and Walker were also in the upper percentile of agreement, sitting together 29 times and concurring at a rate of 97 per cent (28). The same could be said of Lords Dyson and Hope, who concurred in 95 per cent of the 38 times they sat together.

According to Paterson’s analysis the pairings portray justices who thought alike, worked together or had offices near each other, pointing to the impact of dialogue. He suggests that those who voted together most often, Lords Hope and Reed, were in total agreement for the 21 times they sat together and this stemmed from the fact that they shared social and legal philosophies.

At the other end of the spectrum Lord Kerr was most likely to disagree with Lord Dyson. Of the 38 cases in which Lord Kerr shared a bench with Lord Dyson the agreement rate was 79 per cent. Lady Hale shared a bench with Lord Dyson 28 times, but the agreement rate was also 79 per cent.

Lady Hale and Lord Walker also had a low agreement rate, sharing the bench 52 times with an agreement rate of 79 per cent (41).

The biggest clashes were between Lord Kerr and Lord Brown, who shared the bench on 60 occasions, but whose agreement rate was 72 per cent (43). 

That said, there is a growing feeling among leading silks that Lord Neuberger has done much to heal the rifts of the past and bring about a collegiate working culture at the Supreme Court.

While there may be lengthy debate behind the scenes about the benefit of one argument over another, this is less likely to be played out through a judgment.

More single judgments

This tendency is reinforced through a higher frequency of single judgments. Speaking in 2012, Lord Neuberger said: “Individual judges have their own views that need to be respected: judges are not automatons or clones – they are selected to give their views fearlessly and independently”. 

Nevertheless, he continued: “There is much to be said for giving a concurring judgment only where the topic really would benefit from a judicial dialogue.”

As the fashion suggests a move away from dissent, there is a higher frequency of single judgments being handed down by the Supreme Court. In 2013, 55 per cent of all rulings were single judgments. 

“Lord Bingham and Lord Reid would have said [the Supreme Court single judgment rate] was too high,” comments Paterson.

Pre-Supreme Court the percentage of single judgments peaked in 1993 before the figures went into decline until 2004 (see Table 3). After that the number was on a steadily upward trajectory until the arrival of Lord Neuberger, when it  began to climb steeply.

With the number of single judgments on the rise, there is much to be said about who is delivering the substantive ruling. As president, Lord Phillips shouldered much of the responsibility when he was in charge, with his deputy, Lord Hope, coming a close second. Interestingly, however, it is Lord Sumption who is having a major impact in this area (see Table 4).

Sumption, who joined the final court in January 2012 direct from the bar, is a prolific writer. Taken proportionately he has delivered the most single and lead judgments in the final court behind Lords Phillips and Hope. At the bottom end of the table sit the judges most likely to dissent, Lords Kerr and Rodger.

Some say competition to write the lead judgment has become so fierce that it is time the final court adopted a formal procedure for doling out the work.

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Hearts and minds

While dissent may be a rare commodity in the modern Supreme Court, judges who dare to speak out find themselves in a powerful position.  The questioning judge may be able to persuade others to follow their legal pattern and swing a last-minute change of heart. There are also judges who are known for reserving judgment until it comes to penning the ruling.

As a leading public law silk, Dinah Rose QC has been instructed in some of the most divisive cases at the final court. The first case heard by the final court, R (on the application of E) (respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS (Appellants) & Ors and R (on the application of E) (Respondent) v Governing Body of JFS and the Admissions Appeal Panel of JFS & Ors (United Synagogue) (Appellants) , resulted in a five-four split ruling, which could have gone against Rose, who was acting for R.

She has subsequently discovered  it was Lord Phillips who held the swing vote and he had a last-minute change of heart. 

JFS was a very important case for me,” she recalls. “It was an extremely close-fought one.”

Lady Hale and Lords Phillips, Mance, Kerr and Clarke upheld arguments that it was direct discrimination for Brent-based Jewish  school JFS to refuse entry to a Jewish boy because his mother was not recognised as being Jewish by the Office of the Chief Rabbi.

In his ruling Lord Phillips indicates that he changed his mind on the matter of direct discrimination, thus handing Rose a win for the boy. Lord Kerr is understood to have changed his mind on several occasions about which way the ruling should go, as did another unnamed justice who was persuaded by the arguments as the draft judgment was circulated.

Paterson comments that “some [justices] rarely change their minds after the hearing ends. Others, such as Lord Phillips, are able to keep their minds open for much longer. There are those that find it a strength and others who find it disconcerting.”

A change of heart can come as a surprise to a barrister who feels they have won the arguments at the oral stage. Brick Court’s Mark Howard QC says he was shocked when the court decided by a majority of three to two to reject an appeal by Russian state bank VTB Capital against Marshall Capital and Konstantin Malofeev last February.

This dispute clarified the circumstances in which the court can pierce the corporate veil as well as addressing the factors courts should take into account when deciding jurisdiction to hear international disputes.

While the justices were unanimous on the corporate veil point they were split over the issue of jurisdiction. Lords Clarke and Reed dissented from the lead ruling, given by Lord Mance, with whom Lords Neuberger and Wilson agreed that Russia, not England, was the appropriate forum to hear the claim. 

“There must have been an enormous debate behind the decision,” says Howard, who had argued for VTB that the case should be heard in an English jurisdiction if the substance of a tort occurred in England. “I’d have bet my bottom dollar we’d win.”     

Another source close to the case suggests that during the debate concerning jurisdiction questions may have been raised about the growing number of Russian-related disputes being heard in the civil courts. 

“There was a sense of ‘we don’t want those cases taking the time of the top court’ and that may have influenced the decision,” the source says.

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Powers of persuasion

For leading judges to quell the voice of dissent to underline clarity in judgments, they must be clear of the arguments being played out before them. They are more likely to question arguments and bring new points to the table. The skill of a good advocate is to persuade the judicial panel that their argument provides the winning point.

Cloisters’ Robin Allen QC suggests that the judges are “well aware of their legacy” and will “want to be on the right side of history”. 

Fountain Court ’s Bankim Thanki QC says to be a top-level Supreme Court silk one needs “real mental agility”.

Rose adds: “The Supreme Court has a smaller roster of cases – generally speaking they’re all interested in the key issues and want to take a broader perspective – they’re not bound by previous decisions.”

Interpreting the law at Supreme Court level is hugely challenging, which is why only the best legal brains will do for the competing litigants.  This is a court where dissent is in decline, making the stakes even higher for those making the arguments. We are two years into the Neuberger era and a more collegiate, less competitive court is in the making.

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Factions and interests

Counsel who appear before the leading court see the statistics played out by way of legal debate. According to Blackstone Chambers ’ Dinah Rose QC, who is one of the most frequently instructed barristers at the Supreme Court, sub-sections of the bench will raise questions in line with their backgrounds.

“The Supreme Court has a smaller roster of cases and, generally speaking, they will be interested in the overall key issues,” she explains. 

Brick Court’s Mark Howard QC, a leading commercial silk, agrees.

“There’s a different atmosphere in the Supreme Court,” he says. “You do get a lot more questions, but you also get a chance to give the answers.”

Knowing how the judicial factions play out in the court is essential. 

Cloisters’ Robin Allen QC says: “I always prepare my case carefully, thinking about the judges and what interests they have.” 

Rose agrees. “Most advocates will take time to understand the different areas of expertise,” she says.

Equally, emphasises Howard, “it’s important that the court has confidence in you”.

It does not always go to plan, however. One senior silk found herself at a loss in a headline-making dispute when Lords Mance and Sumption took her to task about the implications of European law on her case. 

“I wasn’t prepared for it,” the silk confesses. She went on to lose what was already a difficult appeal.

The Final Judgment

For his 2013 academic text, Final Judgment: The Last Law Lords and the Supreme Court, Professor Alan Paterson conducted more than 100 interviews with 40 of the top judges in the UK. 

The Strathclyde University Law School academic has dedicated much of his professional life to studying the work of those who have sat on the bench and created new law.

His latest text is the source of much of the data contained in this feature and shows how the judicial culture has changed between the Supreme Court and the House of Lords.