A High Court judge recently made the novel suggestion that court judgments should be written in plain English. Mr Justice Michael Twomey argued that his colleagues should stop using Latin terms and instead use the sort of plain language that a reasonably intelligent person would understand.
For good measure he swapped out some of the legal jargon in the judgment he was about to deliver for plain English.
He used the words “usual” and “enhanced costs” instead of the more opaque “party and party” costs and “legal practitioner and client” terms preferred by most of his peers, which he described as “double Dutch”.
It was a good start. Hopefully some of his fellow judges will get on board.
[ The Irish Times view on legal language: judging with a sense of styleOpens in new window ]
It’s not really a novel idea. The controversial-to-some US supreme court judge Clarence Thomas argued at a conference in Harvard University in 2013 that the law ought to be accessible to the average person.
Some countries have brought in plain language legislation. The Law Society here organises legal writing skills masterclasses.
But any change requires buy-in from the top if it is going to be successful and, in this regard, we are talking about the Supreme Court.
And if their recent judgments are anything to go by then there is much work to be done to make their rulings easily understood by a reasonably intelligent person, never mind a member of Generation Z.
The cohort born between 1997 and 2012, whose crimes against grammar and syntax are unparalleled, are now coming of age and any of them who find themselves in the dock may struggle to understand what is going on.
Take a recent Supreme Court ruling on the Courts Service website, in the case entitled: B.D., T.D. (a minor suing by his mother and next friend, B.D.) and M.D. (a minor suing by his mother and next friend, B.D.) Respondents – and International Protection Appeals Tribunal and the Minister for Justice Appellants.
Even digesting the name of the case is difficult. But according to talktogenz.com – an app that translates English into Gen Z speak which appears to use artificial intelligence (AI) – it means: “B.D., T.D. (a kid getting help from his mom, B.D.) and M.D. (a kid getting help from his mom, B.D.) are on one side, while the International Protection Appeals Tribunal and the Minister for Justice are on the other side.”
Much clearer.
The Supreme Court’s judgment itself is equally indigestible.
“In conclusion, I consider that the inevitable temporal gap involved before a judicial review challenge to an asylum decision is finally determined means that severance of the two elements is likely to be highly undesirable,” it stated.
“In this case, severance was only possible because the Court of Appeal made a finding that the COI relating to persecution was unlikely to have changed. This is an assessment that is properly the role of the decision-maker and not that of a judicial review court.
“There may be cases where a particular conclusion is so overwhelmingly likely that the court could discount the possibility of change, but I would not see it as appropriate in the circumstances of this case.
“In the circumstances I would allow the appeal.”
But once again, talktogenz.com brings some clarity and succinctness.
“Basically, I think it’s not cool to separate the time gap and the decision in a judicial review challenge to an asylum ruling,” it stated.
“The Court of Appeal only allowed it here because they believed the info on persecution probably wouldn’t change. But that decision should really be up to the person making the call, not the court.
“Sometimes a decision is so obvious that the court can skip the what-ifs, but I don’t think that’s right in this case.
“So, yeah, I’d say let’s go ahead with the appeal.”
The unsurprising truth is if court proceedings were conducted and recorded in GenZ speak, never mind everyday English as suggested by Mr Justice Twomey, then we would all have a much better idea of what is going on and why the courts rule the way they do.
Instead, the legal profession cleaves to a version of English stuck somewhere between the Norman conquest and the mid-19th century novel Great Expectations. As a result, we are afforded at best a restricted view and understanding of what is going on in court.
The important question is who this serves. Lawyers will argue – with some merit – that use of archaic and codified language brings precision and certainty. It is also unavoidable in a legal system based so heavily on precedents and judgments handed down in times when Latin was widely spoken and this sort of English was in widespread use.
A less-charitable explanation is it is a sort of barrier to entry that obliges us to hire someone fluent in this sort of obscurantist dialect if we want access to the legal system. The fancy dress and wigs are part of the deal, which adds gravitas and spectacle.
The truth is, as ever, somewhere between the two, but even the Supreme Court would find it hard to argue against Mr Justice Twomey.
