INTRODUCTION

It is a requirement of both European human rights law (directly applicable in English law under the Human Rights Act 1998) and of the Common Law that judicial decisions should be reasoned. Failure to supply adequate reasons is both a breach of human rights law, therefore, and a ground of appeal within the domestic system of civil appeals (15.01 ff). The need for reasons is also acknowledged by the (non-binding) American Law Institute/UNIDROIT Principles: 25.129 ff.

In fact most English final decisions, notably those delivered by the superior courts (the High Court, Court of Appeal, Supreme Court, formerly the House of Lords, and the Judicial Committee of the Privy Council), are closely reasoned. Some categories of decision are exempt from the duty to give reasons (notably case management rulings and most costs orders: 15.47 to 15.48).

The main problem in England is not the paucity, or shallowness or oracular nature, of judicial reasoning, but the overloading of judgments with lengthy citation of quotations from precedent decisions, and massive discussion at first instance of complicated factual issues (29.41 ff). There is still much scope for shortening the reserved judgments delivered by the superior courts. By contrast, most county court judgments are unreserved, delivered orally at the conclusion of a case, and they are oft en short.

It remains controversial whether panels of appellate judges should continue to compose individual concurring judgments (29.50 to 29.52). On balance, composite decisions should be adopted, with sensible word-limits. There has been some movement towards greater use of composite (majority) judgments by multi-judge courts. It is also significant that the former Master of the Rolls, Lord Neuberger (see 29.51), favours a qualified approach: composite majority judgments, with scope for individual supplements. It is possible, therefore, that the English tradition of individual concurring judgment writing in multi-judge courts will end. When this happens, the majority judges must shape the court's decision, and not passively acquiesce in others’ reasoning.

dissenting opinion (whether made by an individual judge or more than one dissentient jointly) is a valuable feature of the English judicial tradition (29.37 to 29.39). It enables the individual judge to express his disagreement in a public and rational form.