[Source:] A (Children) or Re A (conjoined twins), UK COURT OF APPEAL (CIVIL DIVISION), 2001

LORD JUSTICE WARD: ... VI Conclusion ... In my judgment the appeal must be dismissed.

LORD JUSTICE BROOKE: ... For these reasons I, too, would dismiss this appeal.

LORD JUSTICE ROBERT WALKER: ... I would therefore dismiss this appeal.

These justices already decided the case, before writing their judgments, so why did Brooke and Robert Walker use this modal verb? No ODO definition seems apt? This usage prevails in many legal judgements, and not simply this instant one which I picked arbitrarily from here.

  • I believe this is either the same or very similar to the would in I'd like to .... Feb 8 '15 at 16:25
  • @DamkerngT. Thanks, but that also confuses me. I think that you're referring to Definition 3 in the aforesaid link to ODO: Expressing a desire or inclination: Yet why write this thus? These justices decided already; they're not merely desiring this.
    – NNOX Apps
    Feb 8 '15 at 16:34
  • To the best of my knowledge, even though the judges might have already made their decisions, that was their first announcement. So, they could announce it as a matter of fact, as the first judge did, or they could use will, to state their volition. However, using would to state one's own volition can soften it (which is why we'd normally say "I'd like to ..."). Also, I believe that it could be more appropriate in some registers. And apparently, the other judges used would, as well. Feb 8 '15 at 16:59
  • A guess (I don't know, so not putting it in an answer): that until the moment they get to the end and write "SO RULED" or equivalent, they are speaking in the subjunctive. Feb 8 '15 at 18:00
  • I think the real reason is that new judges see that other judges write like this, and get the sense that this is the way to write an opinion.
    – cpast
    Mar 11 '15 at 21:44

I agree with Codeswitcher's comment. Judges live in a world of precise language that assigns technical meaning to ordinary words and obsolete usages. The judgement is not the order. The judgement is the implied answer to the question "What would you rule on this issue?". The statement "I would dismiss this appeal." answers that question. There then follows an order, which is the event that actually takes effect. Especially when there are multiple judges - the first to speak cannot say "I dismiss the appeal", he has to use a statement in the conditional future tense until the other judges have spoken.

I conducted a quick survey of older cases on Bailii to test this. The oldest from 1883: http://www.bailii.org/ew/cases/EWCA/Civ/1883/1.html does not have this exact form, but the subjunctive is all over the penultimate paragraph - "would" appears in a dozen places. "Carbolic smoke ball" is very different; no "would". "Wednesbury", the canonical discussion of "unreasonable", has "this appeal must be dismissed". Which again is a statement about the future rather than saying "I dismiss this appeal".

Endacott has the "would" formulation. I suspect it's much, much older than 1959 though.

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