Where Do I Begin? (Thoughts From A New Judge On Judgment Writing)

• Author: Nuala Butler
• Position: BCL, LL.M, BL, Judge of the High Court
• Pages: 47-54

IRISH JUDICIAL STUDIES JOURNAL

47

[2021] Irish Judicial Studies Journal Vol 5(2)

47

WHERE DO I BEGIN? (THOUGHTS FROM A

NEW JUDGE ON JUDGMENT WRITING)

Abstract: This article looks at the process of judgment writing from the perspective of a recently appointed

Judge. It considers the objective criteria by reference to which judgments are selected for formal reporting in the

law reports and the reasons why some judgments, which ostensibly meet those criteria, are not reported. It

then examines the practical steps involved in the preparation of a written judgment and how those might be

approached with a view to ensuring that the resulting judgment clearly explains the Judge’s reasoning process

not just to the parties but a broader legal audience.

Author: Ms Justice Nuala Butler, BCL, LL.M, BL, Judge of the High Court

Introduction

This article began life as a paper which I delivered at the Superior Courts Judges Conference

held in May 2021. Unlike the usual situation in specialist conferences, I was not asked to

speak on the topic of judgment writing because I was the most qualified person to do so but

rather because I was the least. As the newest (bar one) member of the Superior Courts

judiciary at the time I was aware that I had less experience in writing judgments than virtually

all of my colleagues. However, the very fact that I had come lately to the task meant that I

was still consciously thinking about the process – how to approach it, how to do it and,

hopefully – perhaps eventually – how to do it better.

I also come to the task with a particular interest in judgments. For three years prior to my

appointment to the High Court, I was the Chairperson of the Incorporated Council for Law

Reporting in Ireland, the body that is responsible for the production of the Irish Reports.

All in all, I was a member of the Council on both its Outer and Inner Bar panels for about

twenty years and served on its Editorial Committee for about fifteen years. Before that, as a

very junior barrister I had worked as a law reporter for the Council. As a result, I am very

conscious of the criteria that are applied in choosing which judgments should be reported

and why judgments are deemed not to meet those criteria. Some of those criteria are beyond

the control of the individual Judge, such as the importance or novelty of the point being

decided. Others, such as the quality and length of the judgment, are very much in the hands

of the judicial author. Over the past decade or so the increase in the number of judges , and

consequent increase in the number of judgments, has meant that due to pressure of space,

most judgments simply cannot be reported. In any event, now that all judgments are

immediately available on the Courts Service website, the significance of a judgment being

formally reported may have diminished. Nonetheless, years spent trying to identify ‘good’

judgments have left my inner critic sharply attuned to what I am now trying to achieve, and

recent experience has taught me the difficulties in achieving it.

This article aims to do two things. The first is to explain, from a law reporting perspective,

what makes a judgment reportable. I do not presume that every judge approaches every

judgment in the hope or expectation that it will find its way to immortality in the Irish

Reports. However, in a precedent-based legal system where the law reports are seen by both

practitioners and academics as one of the main sources of law, it is useful for a Judge to

understand the objective criteria that are applied to determine which judgments will be

included. The second, from a more personal perspective, is to consider how to approach –

or at any rate how I have approached - the task of judgment writing. I hope that, like riding

a bicycle, once I have mastered the skill it will become second nature to me, and I will write