Killian Flood: Judgments are getting longer, and it’s symptomatic of a bigger problem

Killian Flood: Judgments are getting longer, and it's symptomatic of a bigger problem

In my previous life as case reporter for ILN, I had to digest some long judgments. The first decision in the landmark Covid-19 business interruption claims ran to 214 pages. The judgment in Facebook’s judicial review to the DPC’s own volition inquiry came out to 197 pages. And don’t get me started on the Supreme Court’s decisions on the ratification of CETA, where seven judges conspired to produce written rulings totalling 476 pages, robbing me of a weekend.

Sadly, my OneDrive account is a monument to long judgments. As I scroll through now, I shudder thinking of the late nights and early mornings spent summarising some seriously prolix and complicated rulings.

So, it was little surprise that the Supreme Court decision in The Revenue Commissioners v. Karshan (Midlands) Limited t/a Domino’s Pizza [2023] IESC 24 — summarised for ILN by Gillian O’Hanlon BL — came to 191 pages. It is an important judgment which clarifies the scope of employment contracts in the State and will ensure that workers are treated properly by employers. But it’s also a bit of a tome, containing extended discussion on the “mutuality of obligation” principle derived from English law, the correct approach to identifying a contract of employment and applying the legal principles to the facts of the case.

However, leaving aside the mega-judgments, more notable (and, for a case reporter, distressing) is the number of judgments running to between 40 and 80 pages which involve relatively straightforward or discrete issues of law. In my experience, the courts in recent years have consistently produced written judgments that run longer than the lengthiest decisions from 30 years ago. It is these judgments that concern me more than the rare epic.

Obviously, all areas of law have undergone significant change through legislation and case law in recent decades, meaning that many decisions now involve more complex considerations than years past. Equally, technology has allowed lawyers to reduce much more information to the written form, resulting in affidavits, submissions and books of authorities that would make Homer blush. This, in turn, makes it difficult (if not positively unwise) for judges to deliver ex tempore rulings in place of a written judgment.

I have heard the viewpoint expressed by judges that a judgment is written for the loser. In other words, a judgment must contain a comprehensive assessment of all the relevant submissions made to the Court so that a party knows why they have lost. Indeed, the Supreme Court has previously determined that a failure by a trial judge to adequately consider an issue will result in a decision being set aside on appeal.

The workload of judges is also a likely contributor to judgment length. As any practitioner knows, when you are under pressure to produce several volumes of legal submissions, the ability to write tight, snappy paragraphs becomes markedly less realistic. Similarly, judges are under enormous pressure to deliver judgments while also being available to hear cases throughout a given week. It may well be that the judges would like to write shorter judgments, but do not have the time (to paraphrase Mark Twain).

Typesetting is another factor which can skew the length of a judgment. Five years ago, judgments were published in single line spacing with slim margins and small font. Now, they are published in double-spacing with wide margins and larger font. The result is that the longest Supreme Court judgment in 2018 was 29 pages, containing 243 paragraphs. In 2023, the longest Supreme Court decision is Karshan at 191 pages with 284 paragraphs. Even if the Karshan decision is 41 paragraphs longer, the 162-page difference between the rulings is only rationally connected to the overall layout of the decisions themselves.

I am acutely aware that all of this may sound like the griping of an overtired barrister who dislikes reading long judgments. But, in my view, there are negative aspects to the volume of long judgments which go beyond the personal convenience of the lawyers reading them.

Firstly, it is important to note that long judgments are the result of complex cases, and such cases usually involve significant controversies as to fact, law or both fact and law. It is therefore axiomatic that a general trend of long, complex judgments will contribute to the legal process becoming more complicated overall. Simply put, the more judicial comment made about the law, the more there is to argue about the law, and vice-versa.

The ever-increasing complexity of individual practice areas has a real-world effect on the legal system. Lawyers are forced to specialise in a few areas of law in order to develop true expertise which complex cases demand. In turn, the value of the general practitioner is eroded and competition between counsel is diminished as fewer people are competent to take on cases outside of their immediate specialisation.

For example, challenges to planning decisions and immigration decisions are both done by way of judicial review, the basic principles of which are known by most lawyers. And yet, you would be hard pressed to find a practitioner who specialises in both of these fields, as each have become so technically dense through legislation and case law that quashing a planning decision involves distinct considerations to those of an immigration tribunal decision.

Ultimately, litigation which involves specialised work costs more. The level of time and dedication required is greater than that of a simpler case. The cost for this complexity is borne by litigants and, at a time when so much is made about Ireland being a high-cost litigation environment, there is a need to examine how much the judiciary contributes to this as much as any other courtroom actor.

To be fair, it is a stretch to say that longer judgments are a core cause of higher legal costs and complexity of practice. It may instead be the case that long judgments are symptomatic of a legal process that has become more convoluted over time. However, we should still be alive to the real need for clear, concise rulings that avoid unnecessary exposition.

If a barrister has to wade through several hundred pages of authorities in order to properly present a case to court, this decreases the efficiency of the system as a whole. Sometimes, this will be unavoidable but it will become the norm as modern case law replaces older decisions as the go-to authorities for practitioners. For Karshan, one wonders how often the 191 pages will be relied upon in WRC hearings over the coming months.

In a world where artificial intelligence will likely become a tool used by lawyers to ease the burden of drafting pleadings, affidavits and submissions, there is a real possibility that the volume of paperwork in court cases will increase. If this is reflected in written judgments, we may well see the practice of law becoming even more involved and cumbersome.

As such, it is the responsibility of all lawyers to edit ourselves and refrain from verbosity in both the written and spoken word. This does not lessen the responsibility of a judge to deal comprehensively with all issues raised, but it does allow a court to pinpoint the essential issues and deal with them appropriately.

In any event, we all just skip to the conclusion anyway.

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