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

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

Willthe wording of a contract increasingly be understood to direct theirapplication, or else will judges interpret the law to their own conclusionbased on wider situational considerations?

In 2016, HFW took the case of NYK Bulkship (Atlantic) NV v CargillInternational SA Global Santosh (GlobalSantosh) to the Supreme Court of the United Kingdom. The lead judgmentdelivered by Lord Sumption and supported by Lord Neuberger, Lord Mance and LordToulson (with Lord Clarke dissenting), was regarded as a victory for HFW andlegal literalism. It could not be argued that the decision was not wellreasoned, with the combined years served by the five Lords as High Court judgesexceeding a century. However, two years on and out of the five Lords who gavejudgment in The Global Santosh¹, only Lord Sumption remains, with hisimminent departure adding yet another pair of lofty shoes to fill. One questionthat often remains unconsidered in English law is: what will the replacement ofsuch wise heads, with their own specific experience and personality, have onthe future formulation of law?

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

Another issue, equally hotly contested, ishow a judge is to properly interpret a contract. Lord Hoffmann, now retired, remainsa “towering figure”² inrespect of contractual interpretation with his judgment in Investors³. enduring as the authoritative guide for interpreting a contract. In declaringthat previous “intellectualbaggage” should be left behind, he ushered in a purposive approach to”indentify what a reasonableindividual would have understood the parties to have meant by the language used“⁴. Hispoint being that life, like law, should not be blinded by the dictionarydefinition of words.

This approach has been heavily criticised byLord Sumption in a speech given at Keeble College Oxford in May 2017. Hechallenges Lord Hoffman for throwing the dictionary away and thus deprivingparties “of the only effective meansof making their intention known“⁵. ForLord Sumption, the correct way to interpret any contract is to ‘look at its language, rather than itsbroader notions of intention’. This is often viewed as the literal approacharguing that words should decide the party’s intention and not judges. Recentcases have evidenced growing judicial support for Lord Sumption’s view⁶.However, such support has led to decisions on, for example, implied terms thatfrom a non-commercial perspective appear harsh⁷. NeitherLord’s interpretation is wrong but when cases can be decided by such finemargins there will always be some winners and losers depending on which sidethe gavel falls.

Across the Atlantic, and unlike in the UK,judges are predisposed to form partisan opinions due to the influence ofpolitics on a judge’s appointment to the Supreme Court. Such partisanallegiances were evidenced by Donald Trump’s recent nomination of judge BrettKavanaugh, a pro-life and avid supporter of the right to bear arms. Therationale behind the US’s politicised judiciary stems from their role in thelegislative process. All statutes and legislation passing through congressmoves to the Supreme Court for approval and validation with Justices beingselected based on how likely they are to be accepting to either a liberal orconservative agenda.

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

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

Lady Black, one example of a new recruit withstrong opinions on a range of social issues. Prior to the appointment, she hadgained a reputation as a distinguished Queen’s Counsel specialising in familylaw and a prominent campaigner for women’s and LGBT rights. She is also thesecond female judge, after the currently serving Lady Hale, to ever have beensworn into the Supreme Court. Lady Arden, whose appointment in June will makeher the third ever serving woman in the Supreme Court, is another prominentvoice on equal rights. Last year, while serving on the Court of Appeal, sheargued against the discrimination of heterosexual couples being unable toregister as civil partners. She lost on this occasion but had the last laugh asthe appeal was successfully upheld by the Supreme Court. Of the other newrecruits, Lord Lloyd-Jones is the first ever Welsh member of the Supreme Courtwhereas the new Lord Justice Briggs is regarded as a computer whiz for hisproposal to introduce cyber courts. Lord Justice Kitchin, a winning member ofthe 1975 Oxford-Cambridge Boat Race, and Lord Justice Sales, who trained in thesame set of chambers as Tony Blair, are also new appointments to the SupremeCourt.

The most noticeable change from theappointments has been the narrowing of the gender gap in the UK’s highestjudicial institution. This is a trend reflected across the whole of thejudiciary. In 2003, less than 10% of the senior judiciary were women, now thefigure is 23%⁸.Obviously, more needs to be done but the signs are promising. Of interest willbe whether the interpretation of the law on certain issues will be altered dueto greater diversity amongst the judiciary’s ranks. Will an increased spotlightbe 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 LordLloyd-Jones, previously a Crown Counsel, has any real experience of criminallaw; whilst only Lord Briggs would be regarded as a commercial lawyer. Incomparison, Lord Neuberger, Lord Clarke, Lord Sumption and Lord Mance would allbe regarded as commercial experts having handled a broad range of commercialwork both as Queen’s Counsels and judges. Will this mean a retreat away fromlegal literalism and maybe a broader scope for implied terms? Or will the newintake trust the recent precedents and interpretation of their predecessors?

Last week was the first time a judgment fromthe newly composed Supreme Court made BBC’s most read news list with the rulingrejecting Tini Owens attempts to divorce on the grounds that her marriage was”loveless and had broken down”. ‘Tini Owens’ numerous examples ofher husband’s misdemeanours were considered too flimsy to pass the statutorythreshold of “unreasonable behaviour“sufficient for divorce. It was a decision that was not easily made with LadyHale 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. Thecase evidenced the judicial pledge to not interfere with Parliament’ssovereignty and a progressive social inclination but as of yet no clear insightinto style of judicial interpretation or subjective inferences. Nevertheless,with cases soon to be decided on issues ranging from Brexit to the legality of refusingto inscribe a cake with the words “Support Gay Marriage”, it will notbe 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.