THIS IS A LOT OF MATERIAL FOLKS: ALL THIS INDUSTRY MAY NOT BE TO POINT: SEEING THE WOOD FOR THE TREES

In Miley v Friends Life Ltd [2017] EWHC 2415 (QB) Mr Justice Turner made some observations in relation to the volume of documentation and the subsequent judgment. It is important, he said, for a judge to keep sight of the wood through the trees.

” there is a risk in cases such as this that too close a scrutiny of the trees risks losing sight of the wood. With each, and ever more closely observed, layer of inspection and analysis, the law of diminishing returns takes a heavier toll.”

THE JUDGMENT

1. 1. “I would wish, at this early stage, to repeat an observation I have made in earlier cases in which I have been required to consider and adjudicate on very substantial quantities of material which have, in turn, given rise to lengthy oral and written representations. The parties in this case have produced opening and closing written submissions which run to a very substantial length indeed and all of which I have read carefully. As I remarked in Laporte v The Commissioner of Police of the Metropolis [2015] 3 All E.R. 438 at paragraphs 2 and 3 :

“2…Whilst paying tribute to the level of industry to which these well intentioned and articulate submissions attest I resist the temptation to try to reconcile and resolve all of the subordinate issues which have thereby been generated. As the Court of Appeal held in Customs and Excise Commissioners v A and Another [2003] Fam 55:

“82 A judge’s task is not easy. One does often have to spend time absorbing arguments advanced by the parties which in the event turn out not to be central to the decision-making process…

83 However, judges should bear in mind that the primary function of a first instance judgment is to find facts and identify the crucial legal points and to advance reasons for deciding them in a particular way. The longer a judgment is and the more issues with which it deals the greater the likelihood that: (i) the losing party, the Court of Appeal and any future readers of the judgment will not be able to identify the crucial matters which swayed the judge; (ii) the judgment will contain something with which the unsuccessful party can legitimately take issue and attempt to launch an appeal; (iii) citation of the judgment in future cases will lengthen the hearing of those future cases because time will be taken sorting out the precise status of the judicial observation in question; (iv) reading the judgment will occupy a considerable amount of the time of legal advisers to other parties in future cases who again will have to sort out the status of the judicial observation in question. All this adds to the cost of obtaining legal advice.

84 Our system of full judgments has many advantages but one must also be conscious of the disadvantages.”

3 I have tried to balance those advantages and disadvantages in what follows by giving reasoned decisions on those issues of fact which I consider to be central but without dealing with every peripheral issue the resolution of which would not in any event impact on my essential findings or upon the outcome of the claims.”

1. Those observations apply with equal force to the present case.”

THE WOOD FOR THE TREES

Later in the judgment the judge stated:

1. These categories of primary evidence have, in turn, been subjected to the scrutiny of experts instructed by the claimant and defendant respectively who, and I say this without criticism, have each reached conclusions which are broadly consistent with the case of the party instructing him.
2. The volume of material involved, spanning as it does a number of years, is very considerable indeed. It is in this case, as it was in Laporte, a tribute to the industry of the legal teams on each side that this large body of evidence has been subjected to such sedulous analysis in both oral and written submissions. However, there is a risk in cases such as this that too close a scrutiny of the trees risks losing sight of the wood. With each, and ever more closely observed, layer of inspection and analysis, the law of diminishing returns takes a heavier toll.
3. It is for this reason that I have resisted the temptation to rehearse and resolve every issue of primary fact which has arisen; concluding that the demands of both justice and clarity are best served by an analysis involving a more generic and broader textured approach. The parties can, however, remain confident that where I have not made express reference to any given issue it is because I have considered it unnecessary to resolve that issue before reaching my central and essential conclusions on the evidence as a whole.
4. Moreover, where I have either resolved any issue or chosen to refrain from so doing, I have taken into account the respective arguments of the parties (and, in particular, those set out in their closing written submissions) without overburdening the judgment by repeating their every nuanced detail. Furthermore, I have in the forefront of my mind that the burden of establishing an entitlement to payments under the policy rests throughout on the claimant and wherever I have made reference to what has or has not been demonstrated to my satisfaction it is on this basis whether or not it has been expressly stated to have been so.