It’s election day, but in the wake of Tom O’Malley’s heavyweight commentary on DPP v. Connolly this week, I feel more comfortable turning my attentions to a relatively trivial matter: the use of paragraph numbers in Supreme Court judgments. There’s a five-three split among the eight judges of the Supreme Court on the issue. The majority—Murray C.J., Hardiman, Macken, Finnegan, & O’Donnell JJ.—don’t number their paragraphs, but a substantial minority—Denham, Fennelly & McKechnie JJ.—do.
I’m in two minds about paragraph numbers in judicial decisions. They are rather unattractive, and I think they contribute to the exaggerated belief that explaining a judicial decision requires a technical form of writing, divorced from ordinary discourse. But my views are probably coloured by my experiences working in the American federal courts, where it’s unusual to see numbered paragraphs. (For more on the subject of judicial written style, I recommend Judge Richard Posner’s fascinating article on the subject (JSTOR access required)).
The use of paragraph numbers by some Irish judges may in part be the result of European influences. The European Court of Justice and European Court of Human Rights seem to use them without fail, and I don’t think it’s a coincidence that Fennelly J., former Advocate General of the ECJ, is one of the paragraph-numberers on the Supreme Court. As far as I can tell, the UK Supreme Court’s judgments all come with paragraph numbers now too. Will the Irish Supreme Court eventually follow suit and make paragraph numbering a uniform practice? There’s every chance of it.
I have to admit that paragraph numbers are useful, and particularly so in the age of the internet. Their purpose is to provide an easy way to refer to particular parts of a decision. In the more leisurely pace of days of yore, page numbers in printed books of reports fulfilled that purpose. But now Irish Supreme Court decisions are released on the day of the decision in html format on the Courts Service website, without page numbers. (Though the Court also releases decisions in pdf format on its own website, the pdfs don’t have page numbers, and anyway many people will reasonably prefer to access the judgments in html.) Paragraph numbers are helpful to bloggers. For example, when writing about Dellway v. NAMA, it was easy for me to point precisely to particular piece of Fennelly J.’s (numbered) judgment, but difficult to pinpoint a section of Murray C.J.’s (unnumbered) judgment.
Is there a way to reconcile the utility of paragraph numbers with my aesthetic objections? Perhaps the best way to do this is for courts to use paragraph numbers, but put them in an unobtrusive place to the right of the text, as in these decisions of the Federal Constitutional Court of Germany.
UPDATE: In response to this post, Eoin O’Dell at Cearta.ie has further thoughts in support of paragraph numbering that are sufficiently forceful to dispel my lingering discomfort with the practice. But I’d still prefer to see them running down the right-hand-side of the document, if that’s practical.
