Comparative Judicial Style

Mr. J.L. Goutal is to be congratulated on breaking new ground in his able and informative article on comparative judicial style,1 especially in his use of statistics in order to trace the lengthening or otherwise of judgments or opinions. I would not venture to comment on his article were it not that I think that his very perceptive and appreciative description of English judicial style needs to have something added to it by way of supplement. Even when account is taken of the material contained in Professor Karlen's book on Appellate in the United States and England2 and Dr. Rudden's article, Courts and Codes in England, France and Soviet Russia,3 there appears to be room for another note on the subject. Of course in a study of this kind one can only start from a survey of published material. The reports are indeed unlikely to lead one astray in American law, where virtually all appellate decisions are reported, or in France, where they are at any rate handed down in writing, but one misses a great deal if one confines oneself to the published English decisions. For although most House of Lords decisions are normally published, the decisions of the Court of Appeal are in principle published only where they are thought to contain a material contribution to the law. Since unpublished decisions are almost certainly shorter than published decisions, the cogency of Mr. Goutal's statistical examination of the length of English decisions may be called in question, or rather, it should perhaps be emphasized that it is confined to decisions which have been arrived at with greater than usual difficulty. I shall have more to say about this later. The selective English practice of publishing decisions might have little significance for such a study were it not that unpublished appellate decisions have almost certainly not been handed down in writing, but delivered orally from the Bench immediately after the close of oral argument or after a very short interval.4 A cursory inspection of the reports shows that some even of the reported judgments were delivered orally. In fact the judges in the Court of Appeal reserve judgment in only the most difficult cases. In the Civil Division they probably amount to between one-tenth and one-twentieth of the whole. I would guess that the proportion is much smaller in the Criminal Division and smaller still in the Divisional Court of the Queen's

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