High Court judges face increased criticism from senior colleagues

Judges fear nothing – apart from other judges. And quite understandably so, as a personal telling off from a higher-ranking judge can cause public humiliation.

These types of attacks, known as ad hominem, are becoming more frequent.
Finers Stephens Innocent partner Mark Stephens says: “There’s been an increasing tendency toward ad hominem attacks, which I think is not helpful.”

The most recent example is Mr Justice Peter Smith, who got a battering in Lord Justice Lloyd’s Court of Appeal ruling on The Da Vinci Code case last week.

Although the appeal failed, Lloyd LJ found Smith J’s original judgment was “not easy to read or to understand”. He added: “It might have been preferable for him [the judge] to have allowed himself more time for the preparation, checking and revision of the judgment.”

Lord Justice Mummery agreed, saying the imperfections in the judgment were the catalyst for an unnecessary appeal. “Debate… about what findings the judge in fact made could have been avoided if the judgment had set out the facts, the law and the conclusions in a more orderly way. There was a degree of confusion and possible self-contradiction and misdirection in the
fact-finding process,” he stated.

What surprised lawyers was how prominent these criticisms were in the Court of Appeal judgment, appearing in paragraph three. It seems the Court of Appeal was not amused by the Smithy Code.

But these comments seem like a light slap on the wrist when compared with the drubbing handed out to ex-Technology and Construction Court judge Mr Justice Seymour. His 2004 judgment on Co-op v ICL was branded “unfair” and lacking in any “commercial sense whatsoever”.

And the criticism is not just coming from the Court of Appeal, with the Law Lords also making their presence felt.

Mr Justice Eady was on the receiving end for his judgment of Jameel v Wall Street Journal last year. In the judgment, Lord Hoffman went as far as accusing Eady J of having a personal vendetta against the Reynolds libel defence.

“In the hands of a judge hostile to the spirit of Reynolds, there can become 10 hurdles at any of which the defence may fail. That is how Eady J treated them,” said Hoffman.

The Court of Appeal tried to balance this harsh criticism of Eady J with a
glowing assessment of the judge’s ability in McKennitt v Ash.

Lord Justice Longmore concluded: “His careful, and correct, judgment has made the task of this court much easier than it might otherwsie have been.”
This was widely seen as a move to revive Eady J’s confidence after his savaging in the House of Lords.

With the higher courts more ready to make personal comments, High Court judges have become more tight-lipped on the reasonings behind their decisions for fear of direct criticism.

Stephens says: “It’s created a judicial trend in making findings of fact to make the judgment bombproof. What we’re seeing is a growth of intellectually dishonest decisions, which is sad really.”

Judges are understandably keen not to be singled out for criticism. It could undermine their authority in court. The key is balance. Too much criticism and High Court judges will grow too cautious in their decisions. Too little and maverick opinions on the law could start creeping into High Court judgments. The appellate courts inevitably act as a quality control on judges and their judgments.

Richard Parkes QC of 5 Raymond Buildings says: “Of course an appellate court has the duty to consider the correctness of the judgment below, and will entirely properly criticise the reasoning, the conclusions and even the conduct of the judge appealed from.”

Court of Appeal judges and Law Lords must be seen to take an active interest in the quality control of the judgments that land on their desks. Legal certainty and trust in the courts depend on this balance being in place.