Yorke (M.v) Motors v Edwards
|House of Lords
|Lord Diplock,Lord Fraser of Tullybelton,Lord Russell of Killowen,Lord Scarman,Lord Roskill
|25 March 1982
|Judgment citation (vLex)
| UKHL J0325-1
|25 March 1982
 UKHL J0325-1
Lord Fraser of Tullybelton
Lord Russell of Killowen
House of Lords
This appeal raises a short point of practice and procedure under Order 14, rules 3 and 4, of the Rules of the Supreme Court. The hearing lasted one-and-a-half hours and, in the result it was not necessary to call on counsel for the respondent; but even if it had been, the time spent upon full oral argument necessary for the decision of the appeal could not have been more than twice as long as that.
The length of time required for counsel's opening addresses at hearings of appeals to the House of Lords has been significantly reduced by the practice adopted over the last seven years under which all the members of the Appellate Committee who will be sitting on an appeal will have read in advance at least the judgments in the courts below and the written cases lodged by the parties. This practice of which the purpose is to reduce the length and consequently the cost of appeals to the House of Lords is one of which by now the Bar should be well aware. Signs are, however, now appearing that this awareness may be giving rise to a tendency to expand the written cases lodged by the parties so as to incorporate and develop in them detailed written arguments supported by lengthy citations from and references to numerous authorities, much on the same lines as the written "briefs" submitted by the parties in appeals to appellate courts in the United States which have resulted in oral argument playing a relatively insignificant role in the decision-making process adopted by appellate courts in that country.
The practice of this House whereby members of the Appellate Committee read in advance the judgments in the courts below and the parties' written cases is not intended to reduce the importance of the role played by oral argument in the decision-making process. Its purpose is to add to the cogency of the oral argument by eliminating the necessity for vocal exposition of facts already stated in the judgments below and the reading out of those judgments in extenso. Counsel are thus enabled from the outset to concentrate their arguments on what are the real issues in the appeal. A written case lodged by a party, which itself contains long and elaborate argument and citations from and references to numerous authorities, does nothing to serve this purpose that is not better done by a written case that follows the guidance contained in Rule 22(i) of the Directions as to Procedure applicable to Civil Appeals to the House of Lords. On the contrary, it defeats one of the principal objects of the practice by adding substantially to the costs of the appeal which the shortening of the oral hearing is designed to reduce.
Rule 22(i) has remained substantially unchanged since before the period when it became the uniform practice of all members sitting on an appeal to have read in advance of the hearing the judgments below and parties' written cases and at the outset of the hearing to inform counsel of this fact. The instant appeal provides an appropriate occasion for indicating the form which a party's written case should take pursuant to this rule in order to be of greatest assistance at the hearing of the appeal.
It should be borne in mind that the members of the Appellate Committee will have also read the judgments in the courts below. The case should, accordingly, start with a statement of what the party conceives to be the issues that arise on the appeal. In an appeal to this House, these are generally questions of law or (as in the instant case) of the exercise of a judicial discretion, although occasionally a party may want to challenge a finding of fact. It should generally be possible to describe each issue (if there be more than one) in not more than a sentence or two. If there are issues decided adversely to the party in the court below that he does not intend to pursue on the appeal, this should be stated plainly. Similarly, if it is intended to seek leave to take on the appeal a point that was not taken below, the nature of the point should be identified with sufficient specificity; and if it is intended to invite the House to over-rule or depart from a previous decision of its own, this should be expressly stated.
The case should set out the heads, but no more than the heads, of the argument upon each of the issues which it is intended should be advanced by counsel for the party at the oral hearing to challenge or support, as the case may be, the decision on that issue of the court from which the appeal is brought. Detailed or elaborate argument adds unnecessarily to the costs of preparing the case and is seldom helpful or time-saving at the oral hearing. Reference to authorities relied upon in support of the argument on any issue should be limited to key authorities (seldom numbering more than one or two on any one issue) which lay down the principle which it is contended is applicable, and the particular passage or passages in the judgments in which the principle is stated should be identified and, unless unduly lengthy, may helpfully be quoted verbatim. But references to numerous other cases in which that principle has been previously applied by courts to particular facts which it is claimed may be regarded as presenting some analogies to the facts of the case under appeal, are usually out of place in the written case and, I may add, more often than not turn out to be time-wasting in oral argument also. Where, however, it is intended to rely, as persuasive authority, on cases decided by courts in other countries or legal writings such as the American Restatement, it is of assistance to their Lordships if specific reference is made to these in the written case.
My Lords, I have thought it right to make these observations in the instant appeal because it provides, in the case lodged by the appellant, an example of the spread of the tendency which I have deprecated towards preparing written cases in the style of American "appellate briefs" and, in the case lodged by the respondent, an example of a written case drafted in the succinct manner which I have indicated, not only is called for by the Directions as to Procedure applicable to Civil Appeals to the House of Lords but also...
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