The Appellate Judgment
| Author | Andrew Goodman |
| Pages | 47-66 |
CHAPTER 2
THE APPELLATE JUDGMENT
2.1 APPELLATE COURTS AND TRIBUNALS
Appellate courts and tribunals exercise supervisory jurisdiction, intended not only to review cases, but also to regulate and lay down the law comprehensively for the future. Even at the lowest level of appeal, though, appellate judges exhibit an in-built unwillingness to overturn a judgment or order of the court below unless it is demonstrably wrong. The starting point is that appeal courts wish to uphold judgments, particularly if there has been a clear exposition of the facts, law and reasoning by the judge below, unless they are forced, with reluctance, to do otherwise.
This is nothing to do with judicial fraternity, although judges do have an inherent professional respect for each other. It is concerned with legal continuity and the primacy of the facts. Judges deal with concrete facts and the application of law to those facts, not abstract legal ideas. The Court of Appeal wants to believe that the first instance judge has got it right, especially if adequate reasons are given for findings of fact. Very rarely is an appeal court ready to depart from a finding of fact or the exercise of a discretion by the trial judge. There is a real danger in doing so, since often judges sitting on appeal do not know the entire circumstances of the decision under scrutiny, even if they know the parts pertinent to the appeal. The Court of Appeal should not try to second-guess the trial judge; to do so regularly would be a recipe for chaos and inconsistency in the law.
In structure and language an appellate judgment will be different from that of the puisne judge. It will obviously be shorter on the facts and longer in its discussion and analysis of the relevant law. There is no element of the search for truth since the judge below has created a factual matrix which may only be undone in circumstances where no reasonable tribunal could have found such facts on the evidence available; or the even more unusual circumstance where relevant, probative evidence
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becomes available only after the trial and the appeal court is minded to admit it.
There must also be a measured approach to the language in which the trial or interlocutory tribunal is criticised. The Court of Appeal is very careful about reproaching trial judges, since they are trying to do the job right, often under considerable pressure, and they undoubtedly do their best. Even muted criticism from a superior court causes pain and creates a different kind of pressure on the judge below. Harsh language is used very sparingly, and more often than not direct disapproval is understated, although its message is still conveyed.
2.2 DECISION-MAKING IN THE COURT OF APPEAL
By far the majority of appeals to the Court of Appeal are decided, if not prior to the hearing, then certainly before its conclusion. This is not a matter of revelation, but pragmatism. The introduction of skeleton arguments filed well in advance of the hearing has radically changed matters: judges are expected to read skeletons beforehand, are provided with reading days or other time in order to do so, and will form a view of the appeal prior to its commencement. Judicial assistants will provide summaries for the judges, and these may be heavily reliant upon skeleton submissions. There will usually be a pre-case discussion in which the preliminary view is aired between the members of the court and, if possible, agreed. Judges of the Court of Appeal also tend to talk to each other about the case at each break, even if only a few words. There are occasions when judges have an open mind on an issue to the extent that prior to the hearing they genuinely don’t know the answer to a particular problem and need properly to evaluate the opposing submissions. Such occasions are in the fairly distinct minority; on ever fewer occasions will advocacy alone change a preliminary view, although it does also happen. This renders the appeal hearing an exercise in the reality testing of a preexisting view.
At the commencement of each appeal, the judge presiding over the appeal will nominate a lead judgment writer. It is this judge who becomes the leading questioner of counsel. Since he must write the principal judgment he will formulate questions to assist him in the task. His judgment must also summarise the case and deal with the facts which were either found below or are agreed. He will also establish what points were found or
conceded below, and those that were not canvassed and are being raised for the first time on appeal.
Since the Court will have read and absorbed the skeleton arguments of the parties, the testing of a position is by question and argument:
It is arguments that influence decisions rather than the reading of pages upon pages from judgments.
The judge is best informed through a process of debate in which he will exercise his right to participate, and does so by asking probing questions. Appellate judges also have the opportunity to debate legal issues, both among themselves and by using counsel as a foil. Senior judges favour the use of analogy, particularly in argument. If they do have preconceived ideas, and the hearing is an exercise to explore what is being advanced, analogy is useful in testing propositions, particularly by reductio in absurdem. This is often reflected in reported judicial intervention in submissions in the Law Reports, if not judgments themselves. Otherwise the Court of Appeal judgment uses the same literary and forensic techniques as first instance decisions: the text will contain questions and rhetorical questions, and be divided into units of writing for the convenience, and according to the personal style, of the judge. Each prepares his own judgment, either dictated, which tends to make it longer and more conversational, or by word processor. Great care is taken with the use of language – in most cases over every word.
The key to decision-making in the Court of Appeal is deciding the right question, or finding the right target. To do this, a regular process can be discerned in judgments:
(a) The Court starts with an overall understanding of the relevant law involved. This is often couched in terms of basic principle.
(b) A close analysis is then made of the particular facts: ordinarily these are taken to be those found by the judge or which appear on the face of relevant documents, unless there is a particular reason for not doing so. The relevant facts must be identified in some detail.
(c) The Court then asks itself what, in the light of overall principle, is the question which these facts require it to decide.
If this exercise is conducted, the problem then tends to solve itself. Usually there is sufficient guidance in the authorities on which side of the line
1 White v Jones [1993] 3 WLR 730 per Steyn LJ at 751.
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these particular facts fall. The difficulty for the court is where the facts as found or agreed are on the margin of the law. The court will then look at the direction of recent law in this area, it being accepted that there is an ebb and flow to the pattern of decisions: if it can be identified which way recent decisions in the area are going, the facts may be applied to that law. Nourse LJ in Stoke-on Trent Council v W & J Wass Ltd
... in a process of development it is sometimes necessary to stand back from the authorities and to ask not simply where they have come to, but where, if a further extension is made, they may go next. Although I would accept that there may be a logical difficulty in making a distinction between the present case and the way-leave cases, I think that if the user principle were to be applied here there would be an equal difficulty in distinguishing other cases of more common occurrence, particularly in nuisance. Suppose a case were [sic] a right to light or a right of way had been obstructed to the profit of the servient owner but at no loss to the dominant owner. It would be difficult, in the application of the user principle, to make a logical distinction between such an obstruction and the infringement of a right to hold a market. And yet the application of that principle to such cases would not only give a right to substantial damages where no loss had been suffered but would revolutionise the tort of nuisance by making it unnecessary to prove loss. Moreover, if the principle were to be applied in nuisance, why not in other torts where the defendant’s wrong can work to his own profit, for example in defamation? As progenitors of the rule in trespass and some other areas, the way-leave cases have done good service. But just as their genus is peculiar, so ought their procreative powers to be exhausted.
When the system is working well, the question to be answered should be reduced to a form where it does not rely upon specialised knowledge. The usual constitution of the court is for there to be at least one judge – but perhaps one judge only – from the discipline in question; it is not unusual for the other judges outside the discipline to outnumber the specialist. The Court of Appeal undertakes a very wide area of work and often its approach in one area of the law makes good sense in another. Thus the particular area of specialisation is treated within an overview of the principles to be applied. To an extent this is reflected in the length of the respective judgments, since the specialist may wish to express his viewpoint on the law where otherwise a fairly short judgment might be called for.
In spite of what commentators may say about judge-made law...
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