1 R. Munday, Judicial Configurations: Permutations of the Court and Properties of Judgment. Paper delivered on 23 September 2001 at the A.I.J.A.'s 19th annual conference in Hobart, Tasmania.

2 Examples of composite Court of Appeal judgments abound in this paper, but other courts occasionally indulge in the practice. Thus, the House of Lords recently delivered a single, collective judgment in Forbes [2001] 2 W.L.R.1, as it once did many years ago in Heaton's Transport (St Helen's) Ltd. v. T.G.W.U. [1973] A.C. 15. Brooke L.J., in the Divisional Court, lately handed down a composite judgment in an important decision on the sentencing of young offenders: R. v. Nottingham Magistrates’ Court (2002) 166 J.P. 132.

3 [1998] Ch. 439.

4 [1990] Q.B. 923.

5 [1994] 4 All E.R. 225.

6 [1999] 1 W.L.R. 1569.

7 [2000] 2 W.L.R. 1173.

8 [1997] EWCA Civ 2264.

9 [1997] E.L.R. 249; [1997] P.I.Q.R. 133.

10 [2000] 2 W.L.R. 622.

11 [1998] 3 W.L.R. 682.

12 [2001] 2 A.C.127.

13 [2001] EWCA Civ 1805, [2002] 2 W.L.R. 640.

14 It proved necessary to consult both sources not merely because they contain different materials but also because the “Bailii” texts were sometimes fuller. See notes 96 and 123 below.

15 I did not resort to precise statistical analysis of civil decisions of the Court of Appeal at large, in part because I doubted that sampling the data banks would have been accepted as entirely representative. It seems to me, however, that the imposing quantity of examples cited in this paper, and the number of important decisions which readers will recognise along the way, provide ample evidence of the phenomenon of the composite judgment. I would also draw readers’ attention to what Umberto Eco had to say about statistics: see Misreadings (London 1993) p. 158.

16 See footnote 1 above.

17 For a critical account of this development, see R. Munday, The “Official” Law Reports (2001) 165 J.P.N. 162.

18 I therefore sampled the Queen's Bench, the Family, and the Chancery reports. Additionally, I analysed the decisions reproduced in volume 1 of the Weekly Law Reports since they do not find their way into the Law Reports.

19 These simple categories posed some classificatory problems. Notably, actually defining what is meant by a judgment restricted to an indication of assent is problematical. Not all judges obligingly confine themselves to saying “I agree”. As a rough rule of thumb, I treated as a “full” judgment a speech exceeding 100 words which seemed to me also to make some intellectual contribution to the decision of the court. Another slight problem is that the Court of Appeal does not always sit as a trio. Not infrequently, the judges sit in pairs. However, there are relatively few instances of two-member courts handing down composite judgments: e.g., In re Minotaur Data Systems Ltd. [1999] 1 W.L.R. 1129. Although I have amalgamated the figures for both two- and three-member Courts of Appeal, one might legitimately question whether the two-member decisions ought to be counted in with the decisions of three-member courts. Whatever the merits, however, I do not believe that it makes any difference for the purposes of the present analysis.

20 For this reason, the sharp-eyed might pick up that I have omitted In re Portman Provincial Cinemas Ltd. [1999] 1 W.L.R. 157 from my calculations. This was a decision handed down by Lord Denning's court in 1964, and published as a Note. In any event, Lord Denning could never be accused of having had composite leanings.

21 R. v. Human Fertilisation and Embryology Authority, ex p. Blood [1999] Fam. 151.

22 St George's Healthcare N.H.S. Trust v. S [1999] Fam. 26.

23 R. v. Chief Constable of N. Wales Police, ex p. Thorpe [1999] Q.B. 396.

24 Manchester C.C. v. McCann [2000] Q.B. 1215.

25 R. v. Legal Aid Board, ex p. Kaim Tadner [1999] Q.B. 966.

26 Soleimany v. Soleimany [1999] Q.B. 785.

27 Hamilton v. al Fayed [1999] 1 W.L.R. 1569 (constitutional issues, collateral attack on parliamentary proceedings, etc.); Paragon Finance plc v. Freshfields [1999] 1 W.L.R. 1183 (waiver of legal professional privilege and third parties); In re Minotaur Data Systems Ltd. [1999] 1 W.L.R. 1129 (the official receiver's entitlement to claim for costs as a litigant in person).

28 Clift v. Welsh Office [1999] 1 W.L.R. 796, 798 (“The amount at stake is £400 … But … we have been told that there are at least 3000 outstanding claims in the area of the Welsh Office which raise the same point, so that the Welsh Office views this as a test case”); C v. S [1999] 1 W.L.R. 1551 (tipping off and money laundering); Ex p. Guardian Newspapers [1999] 1 W.L.R. 2130 (the power to hear proceedings in camera).

29 Ebert v. Venvil [2000] Ch. 484 (whether High Court's inherent jurisdiction to prevent initiation of proceedings that could be an abuse of process extends to the county courts); Pearce v. Ove Arup Partnership Ltd. [2000] Ch. 403 (a request to refer a question of conflict of laws to the E.C.J.).

30 Edge v. Pensions Ombudsman [2000] Ch. 602 (reviewing the role of the pensions ombudsman under the Pensions Scheme Act 1993).

31 In re W (a child)(parental contact: prohibition) [2000] Fam. 130.

32 Locabail (U.K.) Ltd. v. Bayfield Properties Ltd. [2000] Q.B. 451. The court was made up of the Lord Chief Justice, the Master of the Rolls and the Vice-Chancellor. It is interesting to contrast the apparent tendency in English cases, as revealed in this paper, for the court to present a united front when dealing with attacks on the integrity of the system, with the Australian approach where dissent is possible: see, notably, Ebner v. Official Trustee in Bankruptcy (2000) 75 A.L.J.R. 277.

33 Edmonds v. Lawson [2000] Q.B. 501.

34 Director General of Fair Trading v. First National Bank plc [2000] Q.B. 672.

35 Turner & Co. v. O. Palomo S.A. [2000] 1 W.L.R. 37.

36 Flannery v. Halifax Estate Agencies Ltd. [2000] 1 W.L.R. 377.

37 Hollicourt (Contracts) Ltd. v. Bank of Ireland [2001] Ch. 555. This decision, it should be noted, followed hard upon the heels of Coutts & Co. v. Stock [2000] 1 W.L.R. 906 where Lightman J. had observed ruefully, “the authorities are in disarray, and the state of the law is uncertain, if not confused.”

38 Fraser v. Canterbury Diocesan Board of [2001] Ch. 669.

39 R. v. N. and E. Devon Health Authority, ex p. Coughlan [2001] Q.B. 213.

40 [2001] Q.B. 272.

41 R. (Khadim) v. Brent L.B.C. Housing Benefit Review Board [2001] Q.B. 955.

42 Ex p. The Telegraph Group pic [2001] EWCA Crim 1075, [2001] 1 W.L.R. 1983.

43 In re Medicaments and Related Classes of Goods (No. 2) [2001] 1 W.L.R. 700.

44 Clark v. Perks [2001] 1 W.L.R. 17.

45 R. (P) v. Secretary of State oor the Home Department [2001] EWCA Civ 1151, [2001] 1 W.L.R. 2002.

46 Callery v. Gray [2001] EWCA Civ 1117, [2001] 1 W.L.R. 2112; Callery v. Gray (No. 2) [2001] EWCA Civ 1246, [2001] 1 W.L.R. 2142. More recently, in what he described as “a natural sequel to Callery v. Gray”, in Saraar v. Alam [2001] EWCA Civ 1401, [2002] 1 W.L.R. 125 Lord Phillips of Worth Maltravers M.R. delivered a further composite judgment on the subject of “before the event” insurance.

47 Paragon Finance Ltd. v. Noueri [2001] EWCA Civ 1402, [2001] 1 W.L.R. 2357.

48 Dodson v. Peter H. Dodson Insurance Services (a firm) [2001] 1 W.L.R. 1012.

49 A.E. Beckett & Sons (Lyndons) Ltd. v. Midland Electricity plc [2001] 1 W.L.R. 281; R. (Montana) v. Secretary of State for the Home Department [2001] 1 W.L.R. 552; R. (X) v. Secretary of State for the Home Department [2001] 1 W.L.R. 740; R. (Holub) v. Secretary of State for the Home Department [2001] 1 W.L.R. 1359; R. (Gunn) v. Secretary of State for the Home Department [2001] EWCA Civ 891, [2001] 1 W.L.R. 1634.

50 [1999] 1 F.L.R. 715.

51 [2001] EWCA Civ 1935, [2002] 1 W.L.R. 803.

52 It is possible that the composite-judgment cases can be classified in another way: to some extent, they seem to have gone in phases. Thus, for a time medical law cases were regularly handled in this manner. We seem more recently to have passed through a phase when defamation cases have quite regularly been treated compositely. In the early days, it was briefly fashionable to despatch professional negligence cases in this manner: indeed, one of the earliest reported instances of a composite judgment in recent times involved the suit brought against an architect in Moody v. Ellis (1983) 26 B.L.R. 39. See also Lubenham Fidelites & Investment Co. v. South Pembrokeshire D.C. (1986) 33 B.L.R. 39.

53 For an account of “imprinting” accessible to the lay reader, see Lorenz, Konrad Z., King Solomon's Ring: New Light on Animal Ways (New York, Thomas Y. Crowell Co., 1952)Google Scholar.

54 [1990] Q.B. 665.

55 This is, of course, a simplified account. It is not my intention to provide an intellectual history of the phenomenon. Nevertheless, I freely recognise that other prominent members of the judiciary, such as Henry, Brooke and Stuart-Smith L.JJ., have played a rôle.

56 Similarly, it could be said that where the issue is an appeal against the amount of damages awarded in a personal injuries case, there is some advantage in the appeal court delivering a single unified finding: Hay v. Konig and Motor Insurers Bureau [2002] EWCA Civ 19.

57 [1998] 1 W.L.R. 1164.

58 [1997] 4 All E.R. 129.

59 [1997] EWCA Civ 1524, [1998] 1 W.L.R. 1123. See also English v. Emery Reimbold & Strick Ltd. [2002] EWCA Civ 605, where Lord Phillips of Maltravers M.R. sought to address a ground of appeal that was said to have grown into “a cottage industry” (at para. [2]).

60 [1998] 1 W.L.R. at pp. 1168-1169.

61 (1998) The Times, 4 June, Lexis transcript. This case is unreported, despite Waller L.J.'s remark in Rose v. British Steel plc (1999) 3 March, unreported.

62 [2001] EWCA Civ 242 at para. [1], [2001] I.C.R. 1189. Slade L.J.'s composite judgment in Adams v. Cape Industries plc [1990] Ch. 433 arose out of 205 consolidated actions: “The trial in the court below lasted some 35 days and the argument before this court extended over some 17 days. The case raises important points of law…” In similar vein, Clark v. Tull [2002] EWCA Civ 510 was depicted as “the third round of a contest between the motor insurance market and credit hire companies” (per curiam).

63 [2001] EWCA Civ 1117 at para. [1], [2001] 1 W.L.R. 2112. Other judgments reflect the importance of the principles being laid down. The composite judgment delivered in R. v. Secretary of State for Transport, ex p. Factortame Ltd. [1997] EWCA Civ 2264 was the first occasion on which a court had had an opportunity to consider the appropriate measure of damages in actions brought against the State for breaches of European Community law. In Governor and Company of the Bank of apcFand v. A Ltd., B and C [2001] EWCA Civ 1212 Lord Woolf M.R. was aware that the court was dealing with “issues of considerable public importance”: namely, interpretation of the provisions in the Criminal Justice Act 1988 intended to prevent “tipping off” in money laundering investigations. Lord Woolf M.R. was conscious that the court's composite judgment in Thompson v. Commissioner of Police for the Metropolis [1997] EWCA Civ 1042, [1998] Q.B. 498 would be important in the determination of many similar pending appeals which also concerned awards of exemplary damages against police forces. The court's composite judgment in Attorney-General v. Blake [1998] Ch. 439, too, had to do with the “issues … of considerable importance” raised in the case whilst Lord Phillips M.R. felt that a judgment considering the impact of the Human Rights Act 1998 on the Copyright, Designs and Patents Act 1988 merited composite treatment in Ashdown v. Telegraph Group plc [2001] EWCA Civ 1142, [2001] 3 W.L.R. 1368. See also Seifert v. Pensions Ombudsman [1997] EWCA Civ 2268, [1997] 4 All E.R. 947; Peacock v. Custins [1998] EWCA Civ 1958; Re National Grid Group of Electricity Supply Pension Scheme [1999] EWCA Civ 761 at para. [2]; Heil v. Rankin [2000] EWCA Civ 84, [2001] Q.B. 272.

64 [2002] EWCA Civ 10.

65 [1998] 2 F.L.R. 843. See now [2001] UKHL 44, [2001] 3 W.L.R. 1021 (H.L.).

66 [1998] EWCA Civ 1943.

67 “Structured Settlements and Interim and Provisional Damages” (September 1994, Report no. 224).

68 [1997] 1 W.L.R. 652.

69 See, e.g., Hammond Suddard v. Agrichem International Holdings Ltd. [2001] EWCA Civ 1915 (two points of principle on which there was little or no authority).

70 [1998] EWCA Civ 245, (1998) The Times, 19 February.

71 [1999] 1 Lloyd's Rep. 387.

72 [2001] EWCA Civ 1880.

73 (1993) The Times, 4 May.

74 Director of Fair Trading v. Proprietary Association of G.B. [2001] EWCA Civ 1217, reported sub. nom. In re Medicaments and related Classes of Goods (No. 4) [2002] 1 WL.R. 269.

75 (2002) The Times, 8 February, [2001] EWCA Civ 119.

76 [2001] EWCA Civ 19, [2001] 4 Lloyd's Rep. PN 308.

77 [1998] EWCA Civ 1118.

78 [1998] EWCA Civ 1119.

79 [1998] EWCA Civ 1309, [1999] E.M.L.R. 415.

80 [2000] EWCA Civ 232. Miriki v. General Council of the Bar [2001] EWCA Civ 1912 is broadly on a par with Colley in that the appellant was appealing dismissal of her action against the Bar Council for unfair dismissal, unfair selection for redundancy, racial discrimination and wrongful dismissal—claims which would reflect on the good name of the profession.

81 [2001] EWCA Civ 1131, [2002] 1 W.L.R. 160.

82 [2001] EWCA Civ 340, [2002] 1 W.L.R. 320.

83 [1999] EWCA Civ 1144.

84 (1993) 30 July, Lexis transcript.

85 [2002] EWCA Civ 15.

86 [2000] EWCA Civ 135, [2000] 3 All E.R. 257.

87 See, e.g., Baker v. Secretary of State for Trade and Industry [2000] EWCA Civ 59.

88 [1999] 1 W.L.R. 1569.

89 [2001] EWCA Civ 1142, [2001] 3 W.L.R. 1368.

90 [2000] EWCA Civ 273 (a consolidated action involving up to 56 defendants, a 350-page first instance judgment, and a fraud affecting members of the Saudi royal family).

91 [2001] EWCA Civ 1881, [2002] I.R.L.R. 129.

92 [1990] Q.B. 391 (complex, consolidated claims).

93 (1991) 21 November, Lexis transcript.

94 [1998] 2 F.L.R. 843.

95 [1998] 1 W.L.R. 1354, [1998] 2 All E.R. 513.

96 [1996] EWCA Civ 565. This sentence is included in the Bailii transcript, but has been edited out of the Lexis version. See now [1998] 1 All E.R. 534, [1998] 1 W.L.R. 1376.

97 [2001] EWCA Civ 1570, [2002] 1 W.L.R. 907. See also BICC Ltd. v. Parkman Consulting Engineers (a firm) [2001] EWCA Civ 1621 at para. [1] where Henry L.J. again delivers the judgment of the court, this time “prepared by Sir Anthony Evans”. Where the authorship and delivery do not coincide, law reporters can become confused: in Karanakaran v. Secretary ff State for the Home Department Brooke L.J. referred to the fact that an earlier decision had been ascribed to different judges: “I would add a footnote to this judgment. The judgment of this court in ex p. Robinson has variously been ascribed to Lord Woolf M.R. ([1997] 4 All E.R. 210; [1998] Q.B. 929; [1997] 1 W.L.R. 1162) and to myself ((1999) The Times, 8 December; [1997] Imm. A.R. 568). The former is correct. Although I prepared the first draft of that judgment, to which the other members of the court contributed, the court agreed that its judgment should be published in the name of Lord Woolf M.R. and that it should begin: ‘This is the judgment of the court, primarily prepared by Brooke L.J.’ This sentence, however, appeared on the title page of the judgment that was handed down, and not in the first one of the judgment, and this led to understandable confusion among the law reporters” ([2000] 3 All E.R. 449, 472-473).

98 [2001] EWCA Civ 701, [2001] I.R.L.R. 615.

99 [2001] EWCA Civ 2017.

100 [2001] EWCA Civ 1217, [2002] 1 W.L.R. 269.

101 [2001] EWCA Civ 1278, [2001] 2 All E.R. (Comm) 805.

102 See, e.g., Dimsey [1999] EWCA Crim 1917, [2000] Q.B. 744.

103 [1997] EWCA. Civ. 2272, [1997] 2 F.L.R. 629.

104 See also, Re C (change of surname) [1998] 2 F.L.R 656.

105 [1994] 1 F.L.R. 59. See also R. v. Crown Court at Snaresbrook, ex p. Director of Serious Fraud Office (1998) The Times, 26 October.

106 Composite judgments handed down by two-member courts are not however the exclusive preserve of family law cases: see, e.g., Hazel v. Hammersmith & Fulham L.B.C. [1990] 2 Q.B. 697; Spring House (Freehold) Ltd. v. Mount Cook Land Ltd. [2001] EWCA Civ 1833.

107 [2001] Fam. 313.

108 (1998) 45 B.M.L.R. 162.

109 [2001] EWCA Civ 1140, [2002] 2 W.L.R. 411.

110 Ibid., at para. [151].

111 The operations of the Criminal Division were discussed in the Donovan Report (Interdepartmental Committee on the Court of Criminal Appeal, Cmnd. 2755). Dissents have very occasionally occurred in the past. Thus, in Kerr (1921) 15 Cr.App.R. 165 Salter J. dissented in a case involving a charge of conspiracy to murder laid against an Irish Republican. In Norman (1924) 18 Cr.App.R. 81, too, a full bench of 13 judges heard an appeal on the law governing habitual criminals under the Prevention of Crime Act 1908. Lord Hewart C.J. and seven other judges decided the case one way; Avory J. and three further dissentients openly disagreed. The mystery is, whatever happened to the thirteenth judge, Sankey J., whose vote seems not to have been registered? The only other trace of dissent in criminal cases is to be found in Seaborne Davies’ paper, The Court of Criminal Appeal: The First Forty Yaass (1951) 1 J.S.P.T.L. (N.S.) 425, 400. The author there claims to have unearthed five instances of cases reported in the Criminal Appeal Reports, up until the year 1948, where the court reveals that its unanimous judgment was in truth a majority decision.

112 (1957) 41 Cr.App.R. 249, 253. Had it not been for illness, Havers J. was destined to have handed down a third. Exceptionally, in Taylor (A.F.P.) [2002] EWCA Crim 853, in addition to the principal judgment delivered by Leveson J., Kennedy L.J. also delivered a front speech repudiating the claimant's suggestion that he had been concerned in an earlier appeal lodged by Taylor in 1998 (see para. [12]).

113 (1989) 91 Cr.App.R. 138, 139.

114 The recent House of Lords case of Kansal (No. 2) [2001] UKHL 62, [2001] 3 W.L.R. 1562, in which Lord Lloyd canvassed the possibility of re-listing that case and reviewing the House's eccentric interpretation of the transitional provisions of the Human Rights Act 1998 in Lambert [2001] UKHL 37, [2001] 3 W.L.R. 206 before a seven-member court, brings to the fore the logistical problems posed when cases have to be re-heard before a fresh appellate bench.

115 [2001] 1 A.C. 473.

116 Although the Crown Court may exceptionally dispense with the presence of the justices (Crown Court Rules l982, r. 4), appeals from magistrates’ courts, heard as re-hearings in the Crown Court before a High Court or Circuit judge or a recorder along with between two and four justices (Supreme Court Act 1981, s. 74), are decided by a majority (ibid., s. 73(3)(a))—which must of course include the professional judge on matters of law (Orpin [1975] Q.B. 283).

117 [1998] EWCA Crim 597, [1999] Crim.L.R. 401.

118 [1998] EWCA Crim 597 at para. [115].

119 (1999) 30 March, Lexis transcript.

120 [1998] EWCA Crim 1247 at para. [60]: “Each member of the court has considered the whole of the summing-up and in particular those passages identified for the court's particular attention as demonstrating unfairness towards the appellant.”

121 (1999) 15 July, Lexis transcript.

122 See text accompanying notes 70-82 above.

123 [1998] EWCA Crim 2885 at para. [1], [1999] Crim.L.R. 156. This interpretation of the case is reinforced by Roch L.J.'s statement, that might meet with the approval of many students: “We are going to hand down a judgment but we shall precis our full judgment for the benefit of those who have neither the time nor inclination to read the full judgment or who may not be able to get hold of a copy of it.” This passage is included in the Bailii transcript but, mysteriously, seems to have been edited out of the Lexis version. One wonders how and why.

124 (1998) The Times, 26 October.

125 Clark (2000) 2 October, unreported (appeal by solicitor convicted of murdering her children).

126 Lyons, Parnes, Ronson and Saunders [2001] EWCA Crim 2860 at para. [1] per Rose L.J. (an appeal whose outcome wore an air of inevitability once the House of Lords handed down its judgment in Kansal (No. 2) [2001] UKHL 67, [2001] 3 W.L.R. 1562. See also Benjafield [2002] UKHL 2 esp. at para. [6]).

127 (1998) 21 December, case no. 98/02930/X4; [1999] Crim.L.R. 575 (emphasis added).

128 [2000] EWCA Crim 49.

129 (2000) 21 December, Lexis transcript.

130 [2001] EWCA Crim 2715 at para. [9]. See generally R. Munday, Inference and Explanation: Omissions to mention facts under s. 34 of the Criminal Justice and Public Order Act 1994 (2002) Archbold News, no. 2, p. 6. Although there is no hint of this in the judgment, the swift overruling of Mountford could suggest that the Court's stressing of collective responsibility was intended to lend force to an interpretation of the statute in which the court did not have complete confidence.

131 [2001] EWCA Crim 2789 at para. [57]. See also Dimsey [2000] Q.B. 744: “This is the judgment of the court, to which all three members have contributed equally (sic).”

132 [1996] EWCA Crim 282 at para. [12]. See also Bosson (1998) 21 December (theft and handling), McCredie and French [2000] B.C.L.C. 438, Elliott [1999] E.W.C.A Crim. 2069 where it is unclear why we need to be told that all members of the court have contributed to the composition of the judgment, and Carroll [2002] EWCA Crim 471 at para. [6], per Johnston J. In Davies (1995) 3 November (transcript nos. 94/4098/S2 ff.) Swinton Thomas L.J. felt it necessary to emphasise, “The judgment which we are about to give is the judgment of the court, as is the case in all criminal cases, and each member of the court has contributed to it. Due to its length we propose to read part of it each, but it nonetheless is one continuous judgment” (p. 3).

133 By way of example, on the day of writing, of the 21 new criminal law approved judgments on “Casetrack”, no less than three omit to mention the name of the judge who handed down the judgment: see Pearce [2001] EWCA Crim 2834; Rooney [2001] EWCA Crim 2844; and Carass [2001] EWCA Crim 2845.

134 The fiction of agreement in 100 per cent. of cases in the Criminal Division is probably less difficult to swallow since there can be no real pretence at a cover-up in a system which simply refuses to countenance any dissent.

135 See notably, Mead, M., Growing up in Samoa (1928: New York, Morrow)Google Scholar. For an informed account of this extraordinary tale of academic gullibility, sloppy fieldwork and self-deception, see the work by the Australian anthropologist Freeman, Derek, The Fateful Hoaxing of Margaret Mead: A Historical Analysis of her Samoan Research (1999, Boulder: Westview Press)Google Scholar.

136 This aspect should not be under-estimated. The streamlined procedures introduced by the CPR typify the new mood. They have fostered an environment that actively favours costcutting, time-saving, and economy of effort. Even as I write, the Chancery Division is fulminating against late submission of skeleton arguments, contrary to the rules set down in para. [7] of the Chancery Guide—rules that are in place to allow pre-reading by the judge which, in turn, enables the court to be more efficient, less costly and more effective: Ansol Ltd. v. Taylor Joynson (a firm) (2002) The Times, 30 January (per Sir Andrew Morritt. V.-C.).

137 There is an argument that in the long run composite judgments could reduce rather than increase “customer” satisfaction within the legal system. If there is an expectation that when a litigant, dissatisfied with a lower court decision, appeals to a higher court, his contentions will receive the individual attention of the three judges—and very often that litigant will have been advised that the lower court's decision is legally questionable—it will come as a disappointment that, despite the intricacy of the argument, all three judges are liable to speak as one. The court may have effected an economy of labour, but in the real world do “customers” generally want to purchase one for the price of three? Which method, composite or individual, truly offers “good value” in this context?

138 There is indeed a widely voiced view that the dissenting judgments of that European Court are often amongst the most intellectually challenging and focussed.

139 See “The Rhetoric of Results and the Results of Rhetoric: Judicial Writings” (1995) 62 U. Chi. L. Rev. 1371. The paper was written with the assistance of her three law clerks— another development that will need to be watched in this country.

140 Ibid., at p. 1377.

141 Ibid., at p. 1378.

142 See, e.g., Gunther, G., Learned Hand: The Man and the Judge (New York, Knopf, 1994) esp. at p. 298Google Scholar; Markey, “On the Present Deterioration of the Federal Appellate Process: Never Another Learned Hand” (1988) 33 S.D.L.Rev. 371 esp. at pp. 379-380.

143 The Rhetoric of Results, at p. 1380. In Judicial Configurations, note 1 above, I draw upon French material that rather corroborates this account. Of course, there is a contrary school of thought which would contend that the true purpose of court judgments is not to provide lawyers with an ersatz literature or to furnish academics with an ideal text to pick apart, but is much more prosaic and utilitarian: see, e.g., Frederick Schauer, “Opinions as Rules” (1995) 62 U. Chi. L. Rev. 1455.

144 “What Borges can teach us”, in Fragments on Law-as-Culture (Deventer, W.E.J. Tjeenk Weillink, 1999) p. 69.

145 “Torticles” (1991-92) 6/7 Tulane Civil Law Forum 105, 110.

146 “The Common Law and the Civil Law—A Scot's View” (1950) 63 Harv. L. Rev. 468, 470.

147 [1947] A.C. 156, 175.

148 I address some of the possible comparative and philosophical implications of this shift in the paper delivered to the A.I J.A., Judicial Configurations': see note 1 above.

149 To be more precise, although an acute reader might have cause to think that the judgment of the Court, say, in Attorney General v. Blake [1998] Ch. 439 was the work of two distinct hands, in the vast majority of cases it does appear that the bulk of the donkey work has been done by a single member of the court.

150 It will be clear to the reader that the new composite style of English appellate judgment invites further comment on a number of scores. A second paper will shortly address some of the practical difficulties attendant upon this device, the emergence of a seemingly contradictory judicial practice in another judicial tribunal and, finally, the broader philosophical and comparative implications of composite drafting.