Could I add a couple of historical footnotes
Development is closely tied to technology
We must remember that the printing press came centuries before the typewriter
Unreserved first instance judgments were the norm until quite recently
According to Lord Sumner's biographer he never reserved judgment in the five years
he was a High Court judge
Until the 19C reporting of unreserved first instance judgments would often depend on
whether someone in court took a note. Hence several different reports of same case
See the future Lord Campbell's joke that he had drawers full of bad Ellenborough law
Unreserved Court of Appeal judgments were common until quite recently
Eustace Roskill told me of a case where he was sitting with Denning
They gave judgment at the end of argument
Denning's judgment was full of Denning like statements about points that had barely been argued
Eustace followed with a judgment saying that he dis agreed and why
Copies of the oral judgments were sent for approval and all these points disappeared from Denning's judgment
Michael
Date: Wed, 26 Feb 2014 07:14:43 +1100
From: peter.radan@mq.edu.au
Subject: Re: Written Judgements
To: obligations@uwo.ca
Following (admittedly very loosely) on this point : I note the existence in the US of the FISA Court, the “Foreign Intelligence Surveillance Court.” It hears petitions from the security services for wire taps, massive data collection techniques, etc.
It is composed of Article III judges, who are seconded to FISA from other federal district and courts of appeals. But, the FISA court sits in secret and issues its judgements in secret. In rare cases it permits an opinion to be published in part.
What, if anything, does that say about human rights and the development of the law? How can there be law if the court renderss its conclusions secret? A tree falling in the woods question, I suppose.
---------------------------------------------
Matthew P. Harrington
Professeur
Faculté de droit
Université de Montréal
Montréal, Québec
matthew.p.harrington@umontreal.ca
----------------------------------------------
De : Gerard McMeel [mailto:gerard.mcmeel@guildhallchambers.co.uk]
Envoyé : 25 février 2014 09:32
À : Nathan TAMBLYN (Faculty of Law); Peter Radan; obligations@uwo.ca
Cc : gerard.mcmeel@manchester.ac.uk
Objet : RE: Written Judgements
There is no obligation in England and Wales to provide a written judgment – Civil Procedure Rules part 40 deals with judgments, but as the commentary in Civil Procedure 2013 (“the White Book”) para 40.2.5 makes clear that judgments may be either oral or written. Generally because of the Human Rights Act 1998 (and ECHR arts 6 and 10) they must be given in public. The vast majority of interlocutory and many first instance trials still conclude with oral judgments. As Nathan states they are taped and may be transcribed (usually for appeal purposes).
Kind regards
Gerard McMeel
University of Manchester, UK
Gerard McMeel
Barrister
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From: Nathan TAMBLYN (Faculty of Law) [mailto:tamblyn@cuhk.edu.hk]
Sent: 25 February 2014 14:22
To: Peter Radan; obligations@uwo.ca
Subject: RE: Written JudgementsI stopped practising as a barrister in England in 2006, but at that time ex tempore judgments were still handed down. But you could always ask for a transcript, so oral judgments still end up in writing.
Nathan
-----Original Message-----
From: Peter Radan [mailto:peter.radan@mq.edu.au]
Sent: Tue 2014/02/25 21:58
To: obligations@uwo.ca
Subject: Written Judgements
Colleagues,
This is a query not specifically focussed on obligations. It has to do with
court judgments being in some written form and court reporting.
On page 1216 of the Volume XI of *The Oxford History of the Law of
England*(2010), there is reference to a claim made in in *The
Times* of London to the effect that, in the 1880s or thereabouts, '99
percent of [common law] judgments were still unwritten'.
On the following page there is mention of the failure of a committee, set
up to look into the publication of authorised reports of cases, to pass a
motion calling for the introduction of a requirement that all judgments be
written, 'so far as practical'.
This brings me to my question: When, if ever, did the requirement that
judgments be in written form come into force?
If anybody can shed any light on this with respect to their own
jurisdictions, I would be most grateful.
Many thanks in advance.
Peter Radan
--
Professor Peter Radan
Macquarie Law School
Faculty of Arts
Macquarie University NSW 2109
AUSTRALIA
Tel: +61 (0)2 9850-7091
Fax: +61 (0)2 9850-7686
Email: peter.radan@mq.edu.auColleagues,
--
Professor Peter Radan
Macquarie Law School
Faculty of Arts
Macquarie University NSW 2109
AUSTRALIA
Tel: +61 (0)2 9850-7091
Fax: +61 (0)2 9850-7686
Email: peter.radan@mq.edu.au