Briefing

Changing of the Guard: The Supreme Court and judicial interpretation of the law

With the recent and imminent departure of many of the Supreme Courts bench of the United Kingdom, questions abound as to the future of Supreme Court justices and their role in shaping the law. 

Will the wording of a contract increasingly be understood to direct their application, or else will judges interpret the law to their own conclusion based on wider situational considerations?

In 2016, HFW took the case of NYK Bulkship (Atlantic) NV v Cargill International SA Global Santosh (Global Santosh) to the Supreme Court of the United Kingdom. The lead judgment delivered by Lord Sumption and supported by Lord Neuberger, Lord Mance and Lord Toulson (with Lord Clarke dissenting), was regarded as a victory for HFW and legal literalism. It could not be argued that the decision was not well reasoned, with the combined years served by the five Lords as High Court judges exceeding a century. However, two years on and out of the five Lords who gave judgment in The Global Santosh¹, only Lord Sumption remains, with his imminent departure adding yet another pair of lofty shoes to fill. One question that often remains unconsidered in English law is: what will the replacement of such wise heads, with their own specific experience and personality, have on the future formulation of law?

It is often thought that because of the judiciary's constitutional function of impartiality, judges are not passionate and outspoken critics on legal and social issues. The reality is, the common law, a system of law derived from judicial decisions, has always been shaped by judgments driven by judges' strong and emotive feelings on particular issues. It is true that the role of the judiciary is based on the cornerstone of independence. However, would the law of tort founded in the landmark decision of Donogue v Stephenson by a 3:2 majority have had the same authority and evolution without the judgment of Lord Aitken? The same could be said for many common law rights – privacy, confidentiality, injunctions and pure economic loss.

Another issue, equally hotly contested, is how a judge is to properly interpret a contract. Lord Hoffmann, now retired, remains a "towering figure"² in respect of contractual interpretation with his judgment in Investors³. enduring as the authoritative guide for interpreting a contract. In declaring that previous "intellectual baggage" should be left behind, he ushered in a purposive approach to "indentify what a reasonable individual would have understood the parties to have meant by the language used"⁴. His point being that life, like law, should not be blinded by the dictionary definition of words.

This approach has been heavily criticised by Lord Sumption in a speech given at Keeble College Oxford in May 2017. He challenges Lord Hoffman for throwing the dictionary away and thus depriving parties "of the only effective means of making their intention known"⁵. For Lord Sumption, the correct way to interpret any contract is to 'look at its language, rather than its broader notions of intention'. This is often viewed as the literal approach arguing that words should decide the party's intention and not judges. Recent cases have evidenced growing judicial support for Lord Sumption's view⁶. However, such support has led to decisions on, for example, implied terms that from a non-commercial perspective appear harsh⁷. Neither Lord's interpretation is wrong but when cases can be decided by such fine margins there will always be some winners and losers depending on which side the gavel falls.

Across the Atlantic, and unlike in the UK, judges are predisposed to form partisan opinions due to the influence of politics on a judge's appointment to the Supreme Court. Such partisan allegiances were evidenced by Donald Trump's recent nomination of judge Brett Kavanaugh, a pro-life and avid supporter of the right to bear arms. The rationale behind the US's politicised judiciary stems from their role in the legislative process. All statutes and legislation passing through congress moves to the Supreme Court for approval and validation with Justices being selected based on how likely they are to be accepting to either a liberal or conservative agenda.

In recent weeks, the composition of the US Supreme Court has become headline news due to the present majority of five conservatives against four liberals. Already, this has produced ideologically charged precedent on cases concerning prisoners' civil rights and immigrants in custody. Although arguably more interesting is how the political persuasion of a judge often effects their method of legal interpretation. Recent years have seen the re-birth of strict US constitutionalism. This doctrine argues that modern statutes should be interpreted closely in line with the principles and ideas set out in the US Constitution. Brett Kavanaugh, one example of a judge guided by these principles, as well as Samuel Alito, a current US Supreme Court judge, are both regarded as staunch conservatives. It is perhaps no surprise then that such views stand in direct contrast to liberal Supreme Court justice, Ruth Bader Ginsburg, who argues for a more nuanced interpretation of the Constitution based upon the social and political opinions of contemporary society.

It is true that the appointment of new UK Supreme Court justices is unlikely to cause as much stir as their US counterparts. This is in part due to the Constitutional Reform Act 2005 which led to the creation of an independent Judicial Appointment Commission. Prior to the Act, judges were appointed by the Prime Minister and the Lord Chancellor and thus a possible suggestion of political bias could not be ruled out. Nevertheless , despite the full independence of the UK Judiciary, judges, like the rest of us, will always be swayed by past opinions and experiences which ultimately will affect the interpretation of law.

Lady Black, one example of a new recruit with strong opinions on a range of social issues. Prior to the appointment, she had gained a reputation as a distinguished Queen's Counsel specialising in family law and a prominent campaigner for women's and LGBT rights. She is also the second female judge, after the currently serving Lady Hale, to ever have been sworn into the Supreme Court. Lady Arden, whose appointment in June will make her the third ever serving woman in the Supreme Court, is another prominent voice on equal rights. Last year, while serving on the Court of Appeal, she argued against the discrimination of heterosexual couples being unable to register as civil partners. She lost on this occasion but had the last laugh as the appeal was successfully upheld by the Supreme Court. Of the other new recruits, Lord Lloyd-Jones is the first ever Welsh member of the Supreme Court whereas the new Lord Justice Briggs is regarded as a computer whiz for his proposal to introduce cyber courts. Lord Justice Kitchin, a winning member of the 1975 Oxford-Cambridge Boat Race, and Lord Justice Sales, who trained in the same set of chambers as Tony Blair, are also new appointments to the Supreme Court.

The most noticeable change from the appointments has been the narrowing of the gender gap in the UK's highest judicial institution. This is a trend reflected across the whole of the judiciary. In 2003, less than 10% of the senior judiciary were women, now the figure is 23%⁸. Obviously, more needs to be done but the signs are promising. Of interest will be whether the interpretation of the law on certain issues will be altered due to greater diversity amongst the judiciary's ranks. Will an increased spotlight be placed on the gender pay gap, LGBT rights or discriminatory stop and search? Or, is the gender of a judge in fact not of significance when interpreting law? Another potential issue arising from the composition of the Supreme Court, could be the lack of balance on the bench. Only the newly appointed Lord Lloyd-Jones, previously a Crown Counsel, has any real experience of criminal law; whilst only Lord Briggs would be regarded as a commercial lawyer. In comparison, Lord Neuberger, Lord Clarke, Lord Sumption and Lord Mance would all be regarded as commercial experts having handled a broad range of commercial work both as Queen's Counsels and judges. Will this mean a retreat away from legal literalism and maybe a broader scope for implied terms? Or will the new intake trust the recent precedents and interpretation of their predecessors?

Last week was the first time a judgment from the newly composed Supreme Court made BBC's most read news list with the ruling rejecting Tini Owens attempts to divorce on the grounds that her marriage was "loveless and had broken down". 'Tini Owens' numerous examples of her husband's misdemeanours were considered too flimsy to pass the statutory threshold of "unreasonable behaviour" sufficient for divorce. It was a decision that was not easily made with Lady Hale expressing great remorse in what she saw as a "troubling case" but reiterated that it is not her role "to change the law laid down by Parliament"⁹. This sentiment was shared by Lord Wilson whose "uneasy feeling" called on Parliament to "consider whether to replace the law"¹⁰. The case evidenced the judicial pledge to not interfere with Parliament's sovereignty and a progressive social inclination but as of yet no clear insight into style of judicial interpretation or subjective inferences. Nevertheless, with cases soon to be decided on issues ranging from Brexit to the legality of refusing to inscribe a cake with the words "Support Gay Marriage", it will not be long before the new justices fill the judicial void

Research undertaken by Elliot Hamlin.

For further information please contact the authors of this briefing:

Brian Perrott
Partner, London
T +44 (0)20 7264 8184
E brian.perrott@hfw.com

Footnotes:

1. NYK Bulkship (Atlantic) NV v Cargill International SA (The Global Santosh) [2016] UKSC 20.
2. Sumption, L., 2017. A question of taste: the Supreme Court and the interpretation of contracts. Oxford University Commonwealth Law Journal, 17(2), pp 303.
3. Chartbrook Ltd v Persimmon Homes Ltd [2009] AC 1101, para 14.
4. Investors Compensation Scheme Ltd. v West Bromwich Building Society [1996] 1 W.L.R. 896 at 912-913.
5. Ibid 1, pp 14.
6. Arnold v Britton [2015] AC 1619.
7. Marks and Spencer plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and another [2015] UKSC 72.
8. Lady Hale's speech at the University of Ottawa, "Reflecting on the Legacy of Chief Justice McLachlin". 10 April 2018.
9. Owens (Appellant) v Owens (Respondent) [2018] UKSC 41 pp 46.
10. Ibid pp 45.