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Published online by Cambridge University Press: 05 September 2019
Reader in English Law, The Dickson Poon School of Law, King's College London, and Associate Academic Fellow of the Honourable Society of the Inner Temple.
Professor of Law, The Open University, and Emeritus Professor of Jurisprudence, Queen's University Belfast.
1 Their appointments were announced in The Times on 15 September 1992 (Sedley) and 19 March 1993 (Dyson).
2 There has been a special issue of Civil Justice Quarterly to honour Lord Dyson's contribution to case law on civil procedure: (2015) 34(3) CJQ, introduced by AA Higgins ‘Civil justice in a shrinking state’ (2015) 34(3) CJQ 221.
3 In Shogun Finance Ltd v Hudson [2001] EWCA Civ 1000, [2002] QB 834, Sedley LJ dissented, while in Sonmez v Secretary of State for the Home Department [2009] EWCA Civ 582, [2010] 1 CMLR 7, Sedley LJ was in the minority on the resolution of one point.
4 Justice, p 36.
5 Justice, p 1.
6 Justice, p 1: ‘Although anyone who rises to the Supreme Court and a senior judicial position such as the Master of the Rolls is likely to be regarded as an Establishment figure, I have never thought of myself in that way’.
7 See eg Justice at p 319 (from 2013): ‘It is perhaps no understatement to say that the present economic crisis is having, and is likely to continue to have, a profound effect on the manner in which we are able to secure that highest and most essential privilege of citizenship’.
8 Justice, p 328.
9 Justice, Chapter 16, ‘Magna Carta – liberties, customs and the free flow of trade’. There are several chapters on Magna Carta because, as he notes in Chapter 16, Lord Dyson was ex officio chair of the Magna Carta Trust during Magna Carta's 800th anniversary celebrations: ‘You can imagine that my term of office has been rather busier than that of my illustrious predecessors’.
10 Justice, p 279. See also p 319.
11 For example, when commenting on the effect of austerity on access to justice, Dyson twice laments that there are few votes to be won, and thus little political capital, in adequately funding the Justice system as opposed to the Health Service (Justice, at pp 282 and 367).
12 Justice, p 437.
13 Lord Dyson did not sit in the Court of Appeal in R (Unison) v The Lord Chancellor [2015] EWCA Civ 935, [2016] 1 CMLR 25, a case challenging the way in which fees were introduced in the employment tribunals, and in which the Supreme Court affirmed the central importance of access to the courts for the maintenance of the rule of law: [2017] UKSC 51, [2017] 3 WLR 409 per Lord Reed at [68]–[69].
14 Justice, p 375. The fees are described as ‘deeply regrettable’ in another post-retirement speech at p 396.
15 Justice, p 14.
16 One example of such optimism relates to Online Courts, which feature with hopeful references at various points, such as at p 282: ‘We have not yet realised the benefits that the IT revolution can bring to our system of justice’ and p 376 ‘‘The development of a court that is as accessible to individuals as Amazon is long overdue’.
17 Justice, p 97.
18 In commenting on judgment-writing in his Final Judgment (Oxford: Hart Publishing, 2013) p 201Google Scholar, Alan Paterson notes that Lord Dyson was a judge ‘to whom counter-punching seems to have come naturally’. Dyson deprecates elsewhere the idea of serving judges criticising current decisions (Justice, p 359) as he would ‘regard as unacceptable the risk of being exposed to adverse criticism by another judge without the benefit of adversarial argument’. This seems not to apply to extra-judicial speeches.
19 Justice, p 97. See also at p 56 ‘despite some notable exceptions…, Parliament rarely shows any appetite for changing the common law’.
20 In which the individual judges of the Divisional Court were personally targeted by media criticism: James Slack ‘Enemies of the people’ (The Daily Mail, 4 November 2016) in response to R (Miller) v The Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin), [2017] 1 All ER 158; affirmed on appeal, [2017] UKSC 5, [2017] 2 WLR. 583.
21 Justice, p 436.
22 Robinson v Chief Constable of West Yorkshire Police) [2018] UKSC 4, [2018] AC 736, see eg Lord Reed at [31]–[42].
23 ‘Website addresses change underlines judicial independence’, 16 December 2013, https://www.supremecourt.uk/news/website-addresses-change-underlines-judicial-independence.html. The Judicial Office website now also has removed ‘.gov’ from its domain page, but that only changed on 5 June 2018, after this book's publication: ‘Judiciary website address change’ https://www.judiciary.uk/announcements/judiciary-website-address-change/.
24 [2013] EWCA Civ 1537, particularly at [40]–[51]. In that case, the Court of Appeal, including Lord Dyson MR, quoted (at [38]) and endorsed (at [39]) from another of Lord Dyson's speeches, which does not appear in the book: ‘The Application of the Amendments to the Civil Procedure Rules, 18th Lecture in the Implementation Programme’, Judicial College, 22 March 2013, https://www.judiciary.uk/wp-content/uploads/2014/10/mr-speech-judicial-college-lecture-2013-1.pdf.
25 [2014] EWCA Civ 906, [2014] 1 WLR 3926, in which, speaking of Mitchell, Lord Dyson MR and Vos LJ thought (at [3]): ‘that the judgment in the Mitchell case has been misunderstood and is being misapplied by some courts. It is clear that it needs to be clarified and amplified in certain respects’, and so (at [24]ff), ‘restate[d] the approach’. Jackson LJ, the architect of the Civil Litigation Costs Review, separately concurred.
26 Justice, p 13.
27 Justice, pp 343–344: ‘What of the future? Some have suggested that Denton amounted to the Court of Appeal waving of the white flag; that the stricter approach had its moment in the sun but it was no more than a moment. I do not accept this and I do not believe it to be a widely held view’. For a flavour of the commentary on Mitchell/Denton, see Higgins, A, ‘CPR 3.9: the Mitchell guidance, the Denton revision, and why coded messages don't make for good case management’ (2014) 33 CJQ 393Google Scholar and Williams, JR ‘“Well, that's a relief (from sanctions)!” – Time to pause and take stock of CPR r.3.9 developments within a general theory of case management’ (2014) 33 CJQ 394Google Scholar.
28 Justice, pp 295–296.
29 Justice, p 37. This shortage of reference comes even though on that same page, in a chapter on the relationship between ‘Academics and Judges’, Dyson notes that ‘These days, judges are far more open about these things. Judgments are peppered with references to and quotations from academic writings. That is, of course, how it should be’ (ibid).
30 The interested reader can find the quotes in [1985] Criminal Law Review 504 and in Duxbury, N Jurists and Judges: An Essay on Influence (Oxford: Hart Publishing, 2001) pp 110–113Google Scholar. On the same page Glanville Williams is also quoted but without a reference for the reader: that famous note is Williams, G, ‘The Lords and Impossible Attempts, or Quis Custodiet Ipsos Custodes?’ (1986) 45 CLJ 33CrossRefGoogle Scholar.
31 [2011] UKSC 13.
32 Jones v Kaney, at [190].
33 Justice, p 53.
34 It us worth noting that ‘Continuity and Change’ was a slogan adopted by the former Prime Minister of Australia, Malcom Turnbull. This was noted to be very similar to the slogan adopted by the main character in political comedy programme Veep: Elle Hunt ‘Malcolm Turnbull's ‘continuity and change’ slogan straight out of Veep’ https://www.theguardian.com/australia-news/2016/mar/23/malcolm-turnbulls-continuity-and-change-slogan-straight-out-of-veep. One of the writers of the show, Simon Blackwell, explained the choice as ‘We needed it to be hollow and oxymoronic, to say absolutely nothing but seem to have depth and meaning. It couldn't be too daft though – it had to be funny but still believable’.
35 Eg taking issue with Karon Monaghan https://www.lrb.co.uk/v35/n18/letters#letter3 or with ES Turner https://www.lrb.co.uk/v25/n21/letters#letter3 or with David Elstein https://www.lrb.co.uk/v33/n14/letters#letter4 or with Ron Haggart https://www.lrb.co.uk/v19/n23/letters#letter3 or with Thomas Davis and Adrian Bowyer https://www.lrb.co.uk/v27/n05/letters#letter1 or with Maurice Vile https://www.lrb.co.uk/v26/n21/letters#letter1.
36 Marxism Today, September 1963, p 287.
37 Sedley, S Law and the Whirligig of Time (Oxford: Hart Publishing, 2018)Google Scholar (Whirligig hereafter) p 33.
38 Ibid, pp vii, 33, and 48.
39 Ibid, p 33.
40 London Review of Books https://www.lrb.co.uk/v40/n19/letters#letter7.
41 See Hyland, P ‘Shakespeare's whirligig’ (2008) 66 The Explicator 209CrossRefGoogle Scholar.
42 See eg Beynon-Jones, S and Grabham, E (eds) Law and Time (Abingdon: Routledge, 2018)CrossRefGoogle Scholar.
43 Whirligig, pp 33, 50.
44 Ibid, Ch 16, p 130.
45 Miller, above n 20.
46 Whirligig, Ch 21, p 156.
47 Ibid, p 161.
48 London Review of Books https://www.lrb.co.uk/v24/n18/stephen-sedley/colonels-in-horsehair.
49 Whirligig, Ch 36, p 256.
50 Ashes and Sparks, Essays on Law & Justice (Cambridge: Cambridge University Press, 2011) Preface p xGoogle Scholar.
51 Whirligig, p 258.
52 Ibid, Ch 34, p 244.
53 Hinz v Berry [1970] 2 QB 40.
54 Ibid, p 42.
55 Whirligig, p 269.
56 Michael Beloff, The Spectator, 22 September 2018, reviewing these same two books, https://www.spectator.co.uk/2018/09/two-legal-big-hitters-consider-the-appropriate-distribution-of-governmental-power-in-britain/.
57 Whirligig, p 278.
59 The Guardian, 20 March 2004.
60 These two sentences are indeed the opening sentences: we have checked.
61 Carlen, P (ed) The Sociology of Law (Rowman & Littlefield, 1976)Google Scholar.
62 Marxism Today, October 1977.
63 R v Higher Education Funding Council, ex p Institute of Dental Surgery [1994] 1 WLR 242.
64 Ibid, at 259.
65 Whirligig, p 243.
66 [1976] 1 QB 606, discussed in Lee, S ‘Lord Denning, Magna Carta and magnanimity’ (2015) 27 Denning Law Journal 106Google Scholar.
67 For a consideration of the implications of post-retirement judicial activities, see Appleby, G and Blackham, A ‘The shadow of the court: the growing imperative to reform ethical regulation of former judges’ (2018) 67 International & Comparative Law Quarterly 505CrossRefGoogle Scholar.
68 Justice, p 357.