Lord Justice Warby & the Terrible, Horrible, No Good, Very Bad Paragraph

Warby lj is a great asset to the Court of Appeal; a specialist in media law and privacy promoted from the Media and Communications List, His Lordship is provides invaluable expertise in the law of, inter alia, defamation. It is therefore, with some regret, that your correspondent must say that in a recent case, His Lordship presented your correspondent with what can only be called a paragraph of horrors, in which solecism after solecism was committed upon the reader. This paragraph came in the context of Mincione v Gedi Gruppo Editoriale SPA,¹ a case dealing with a complex question of the conflict of laws which are not relevant to my stylistic analysis, and it reads as follows:

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Let us now consider, in order, the faults of this paragraph:

The inclusion of honours in inline references

The conventions of legal writing are designed to allow for compression of references so as to make the paragraph flow despite being filled with invocations of people and things with elaborate titles. As a result, in inline legal writing, English legal style (unlike in the United States) always does its best to abbreviate judicial titles. Hence, we write ‘Smith j’ rather than ‘The Honourable Mr Justice Smith kt’. The ‘J’ after the name of a High Court Justice is exclusive and admits no friends or hangers on. This is because the ‘J’ serves an abbreviating function so as to allow the educated reader to fill in the rest of the ellipse. We know that, in the paragraph in question, ‘Tipples j’ indicates that we are speaking with regards to a Judge of the High Court of Justice, and that as a consequence said judge is entitled to ‘The Honourable’² and a handle (‘Sir’ or ‘Dame’) and if the latter, the post-nominals ‘DBE’.³ We know all this from that humble letter, ‘J’, and we have no need for other embellishments. This is settled custom, so settled I would say it is incorporated into the contract between legal writer and reader,⁴ and diverging from it seems violent and strange.

The problem with ‘Tipples j, dbe’is further compounded by the gendered effects Warby lj’s choice has. Elsewhere in the judgment, other, male colleagues of Tipples j are referred to with the standard post-nominal of merely ‘J’.⁵ Although this was not Warby lj’s intention, it is apparent that there is a problem with being content to refer to male judges simply by judicial abbreviation, but not to extend this standard practice to their female counterparts. The brothers and sisters of the robe (to use language sadly disregarded in England but still used in other parts of the Commonwealth) are equals in every sense.⁶ There cannot be this division—it simply will not do. This is not merely the humble opinion of your correspondent, but is explicitly endorsed in Garner, § 7.15, where the learned author reminds us that:

One insidious type of sexism is the disparate ways of referring to men and women[...] Some will call these imagined slights. But the disparities, even if unconscious, are hard to dismiss.

The use of ‘The Judge’ as a hypochoristic

It is well known (and amply discussed in, eg, Garner) that lawyers have a tendency to overdo creating abbreviated names for things (‘the Car, the Firm, the Incident’, etc). The dictates of proper style require that we only shorten where it is called for. In this case, Warby lj uses ‘the Judge’ as shorthand for ‘Tipples j’. Eagle-eyed readers may have noticed that these two strings are exactly the same length! What, then, could possibly be the point of using the shortened version? It is by definition unnecessary! The only possible justification might simply be to avoid burdening the readers mind with unnecessary facts, to reduce this to a generic and abstract question of law. Yet, I dislike this. The identity of the judge and their rank matters (that’s why we append ‘as he then was’—it indicates the individual judge was promoted and thus gets more weight). Where it does not take up excessive length, there is no reason not to use the name of the judge in question! Thus, Warby lj’s approach is to be again deprecated here.

The wrong sort of quotation mark

This is not an especially grievous sin, but it is saddening to see, once again, a British judge use double quotation marks for outer punctuation, when the uniform style for publishing in this country has been for at least a century to use single quotation marks as the outer punctuation. There is no reason judges should diverge from books, newspapers, and other printed material in this way; it is distracting and confusing.

The wrong sort of pronoun

This is a conservative tic of your correspondent, but the use of ‘She held’ to refer to the decision of Tipples j feels wrong. In Jamaica, Warby lj would have said, ‘My learned sister’; here, His Lordship could at least use ‘My Lady’ or ‘Her Ladyship’. This can seem like your correspondent is harping on an arbitrary point of style, but it is actually one of fairness: if male judges got centuries of worshipfully respectful legal style, is it not wrong to cut off this pipeline of respect at roughly exactly the point in history we began to have a significant number of female senior judges?

‘Dictated’

Warby lj says that the answer to one of the questions at issue in the case below was ‘dictated’ by the ruling of the cjeu. This is a choice of a word which does not appear in the judgment below,⁷ and which is a poor verb for describing the relationship between the cjeu and national courts. Admittedly, as the last pre-Brexit references are answered and dwindle into disappearance, we may have less call for remembering the niceties of European Union law, but, for now, it is important to remember that the cjeu does not order the national court, but rather merely answers the reference posed. If the answer to the reference is so clear that the court has no freedom of action in applying the answered the point of law to the facts of the case, then a better verb might be ‘foreclosed’. This conveys the limited room for manœuvre of the national court, without suggesting that the cjeu ‘dictated’ (with all its connotations of ordering and commanding) the national court.

The wrong diacritic

This is one of the more egregious errors I have seen make its way into a judgment, relating to the suffix ‘OÜ’. In Estonia, an osaühing, (OÜ) is a type of limited company (think AG, LLC, or SA in other parts of Europe). The mark over the U is in a diæresis, functioning in this case as an umlaut, and costs of two small dots hovering over the glyph. In Her Ladyship’s judgment below, Tipples j managed to print these two letters correctly, without any error. Warby lj, on the other hand, has, somehow (it really is not clear what could have led to this) managed to print ‘Ű’ instead of ‘Ü’. That is to say, Warby lj has printed a double-acute accent on a ‘U’, which is a letter used only in the Hungarian language (and explicitly not in Hungarian’s distant Finno-Ugric cousin Estonian). Given that many default English keyboards do not even print the double-acute accent without quite a bit of work, there is something darkly impressive about this error. Yet, it also shows that Warby lj was trying to do things the ‘hard way’, by typing out the absurdly long case name by His Lordship’s self; this is clearly the case, because if His Lordship had simply copied-and-pasted the case name from Tipples j’s judgment, all this silliness could have been avoided.

Improperly italicised punctuation

The italicisation of punctuation is a difficult matter, and no less and authority than Bringhurst teaches that, to avoid the text losing its natural visual flow across the page. Personally, your correspondent never italicising punctuation surrounding italics, but, due to the permissive authority just quoted, cannot wholly condemn those who choose to do so. However, regardless of which approach is taken, the most important point is consistency. Here, Warby lj chooses not to italicise the outer quotation mark, but nonetheless italicises the latter mark, leading to the impression of inconsistency and a lack of care.

With a tip of the editor’s hat to Twitter user Dudhope for finding this!

A lack of punctuation

Proper punctuation is essential to the flow of a complex judgment. This sentence from this accursèd paragraph is evidence enough:

Alternatively, she held that if the court does have jurisdiction to grant an injunction as sought by the claimant no such order could be granted on the undisputed facts of the case.

Now, observe the same sentence with punctuation added in, and take in the subtle but important difference:

Alternatively, she held that: if the court does have jurisdiction to grant an injunction, as sought by the claimant, no such order could be granted on the (undisputed) facts of the case.

Capitalising the Court

Lawyers tend to overuse capitalisation, but it should never be abandoned where it serves its proper place in safeguarding the dignity of our institutions. Her Majesty’s High Court of Justice is an eminent example of a body deserving capitalisation, and where ‘the Court’ is used as an elided shorthand for ‘HM High Court of Justice’, it must be capitalised. Here, Warby lj makes reference to Tipples j’s declaration that ‘the court had no jurisdiction’. Plainly, in this context, ‘the court’ refers not merely metonymically to a particular judge or proceeding, but to the jurisdictional boundaries of the High Court itself! As such, this is a case where ‘Court’ should be capitalised.

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1. [2022] EWCA Civ 557↩︎

2. Admittedly this is a questionable style for which there is little authority, but it is incorporated by custom now.↩︎

3. The post-nominal letters ‘Kt’ may be used in some cases for knights bachelor, as all male High Court judges are, but, unlike DBE, they may never be used.↩︎

4. cf Smith v Wilson 110 ER 266, KB↩︎

5. See, eg, para 29.↩︎

6. Including in the order of precedence, despite the fact that female judges have a DBE which technically should rank them higher than knights bachelor.↩︎

7. [2021] EWHC 2006, QB↩︎