Legal writing has its share of legendary footnotes, perhaps the most famous being the American ‘Footnote Four’.1. Your correspondent has written elsewhere on the virtue of footnotes over in-text citations in judicial decisions, and is a great fan of footnoting generally. However, like with all style, footnotes only work if they are done well. Otiose footnotes, which add nothing and serve only to distract the reader, are insufferable.
A recent decision of the First-tier Tribunal,2 by Tribunal Judge John Brooks is a case-in-point of unnecessary footnoting. Judge Brooks uses three footnotes, the first of which is mostly acceptable and merits no discussion.3 The second and third, however, are truly egregious, and read as follows:
The Guidance (which was re-issued on 28 July 2022 to clarify that permission is not required where individuals wish to give video and telephone evidence from within the United Kingdom, the Crown Dependencies[2], or British Overseas Territories[3])[…]
fn 2: Jersey, Guernsey or the Isle of Man
fn 3: Anguilla, Bermuda, British Antarctic Territory, British Indian Ocean Territory, Cayman Islands, Falkland Islands, Gibraltar, Montserrat, Pitcairn, Henderson, Ducie and Oeno Islands, St Helena, Ascension and Tristan da Cunha, South Georgia and the South Sandwich Islands, The Sovereign Base Areas of Akrotiri and Dhekelia, Turks and Caicos Islands and Virgin Islands
Let us review the litany of sins committed here. First, no parenthetical statement should ever yield within it two footnotes! If something is so trivial as to be merely brought up en passant, then plainly it does not need excessive expansion. This is especially so when the parenthetical here is entirely (allegedly) for the benefit of the reader and has no real bearing upon the case. It undermines the entire point of having parenthetical asides.
More importantly, for whom does this footnote purport to be? First, the Overseas Territories and Crown Dependencies have not the faintest relevance here. The context of the mention of the Guidance is a witness giving evidence from the Kingdom of Belgium, which (unless your correspondent missed a snap invasion recently) does not form a part of His Majesty’s overseas possessions! Therefore, the detail of a list of the Dependencies and Territories has not even the most minute bearing upon the case. It occasionally is called for to provide footnoted detail on irrelevant matters where the reader will naturally be curious enough to want an answer. One classic example is saying that a country is ranked ‘third in the world’ for something; it is courteous writing to in a footnote say who took first and second place, simply to spare the reader the search. In this case, however, even the mention of the fact that the guidance applied to British overseas possessions which are not independent countries is pointless, because no reader would be wondering or caring about that point.
To follow up that unwanted intrusion of detail by an otiose list of territories falling into this category is absurd. Compounding matters, no reader will be stymied by the ambiguity of what constitutes an Overseas Territory or Crown Dependency, because this is a fixed list readily available in many places. It is condescending to presume that the reader would be so confused by this parenthetical mention of mysterious realms of overseas lands that it requires a full listing. The information contributes nothing, distracts from the text, and leaves the reader ill-disposed to the rest of the decision, all good grace having been exhausted.
Footnotes are a wonderful thing. It pains your correspondent deeply to see them mis-used in this manner. Legal writers must show more respect to these august friends at the bottom of our pages.
United States v Carolene Products (1938) 304 US 144, 152-53, fn 4 per Stone J↩︎
The judge does mistakenly use both bold and underline to emphasise a word, when simple italic would do, but that is at the expected level of error for members of the judiciary. The soft bigotry of low expectations strikes again…↩︎
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