BIALL conference 2014: The Curious Case of the Judgment Enhancers

Posted on 18th Jun 2014 in Law Reporting

The British and Irish Association of Law Librarians (BIALL) held their 45th annual conference in June 2014 at the Harrogate International Conference Centre. ICLR was at Stand No 10 to offer demonstrations, free trials and subscription sign-ups of ICLR Online to delegates. And among the speakers at the plenary sessions, Daniel Hoadley, ICLR’s Business Development Manager, gave the following talk:

The Curious Case of the Judgment Enhancers

Dan talking

Daniel Hoadley (photo: BIALL)

Introduction

  1. The defining feature of a common law jurisdiction is that the judges in the courts, as well as the legislators in Parliament, are able to make law. In order for the system of judge-made law to operate in a rational and consistent manner, the doctrine of precedent holds that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. In turn, in order for the doctrine of precedent to be workable, there must be some way of accessing the decisions of the courts – there must be some way of getting at the judgments.
  2. Law reporting is almost as ancient as the common law itself and has been absolutely central to its development. Without law reporters and their reports, English common law would never have developed.
  3. In the earliest days judges and lawyers would cite cases from memory, a practice which arose for the early right of a barrister as amicus curiae to inform the court of a relevant decision of which he (in those days there were no women at the Bar) was aware. From that right followed the right to cite his written report of decisions to which he personally vouched as a member of the Bar. Plea rolls commenced in the 12th century, recording the outcome of cases but not the issues in them or the reasons for the decision. Yearbooks and abridgments containing summaries of discussions in court first appeared in the 13th century. With the advent of printing, more barristers undertook to produce their own series of reports of judgments in the courts they frequented. Those reports bore the author’s name and were therefore known as “nominate” reports. Law reporting continued to develop and in 1865 the Incorporated Council of Law Reporting for England and Wales was established, with the first volumes of The Law Reports being distributed in 1866 to 400 subscribers at five guineas a year. In 1936, we saw the introduction of commercial competition into the generalist law reporting arena with the establishment of The All England Law Reports, published by Butterworths.
  4. Despite law reporting’s historical instrumentality to the development of the common law, when we fast forward to the present day, the relevance of law reporters and their reports is less clear cut. Perhaps unsurprisingly, my aim today is to gently suggest to you that even in the digital age of legal information, law reporting still has a fundamental role to play in the development and guardianship of judicial precedent.
  5. So, as you have all no doubt deduced, this morning’s talk is about law reporting. I am bound at this point to declare an interest: I am an employee of ICLR and am therefore inherently supportive of the work the organisation does. But to be clear, within the confines of this talk, I will endeavour to maintain the highest degree of publisher-neutrality of which I am capable. Accordingly, when I speak of “law reporting” this morning, I should be taken to be referring to the work performed by all law reporters, regardless of the publisher employing their services. I do, however, reserve the right, if it comes to it, to point out differences of technique, ethos and resultant quality.
  6. As this talk develops, I’d like to place the following four propositions into the background:
    1. First, the immediate purpose of a law report is to make the inherently complex material within a judgment as intellectually accessible as possible via the inclusion of a headnote drafted by a legally qualified reporter;
    2. Second, the proper development of the common law depends on selectivity of coverage. It is all well and good having access to the raw haystacks of judicial materials, so long as there operates a parallel system of making the highly polished needles of law-changing authority stand out;
    3. Third, the common law is a system, and like any other system, the quality of the output depends on the quality of the input. Poor selection and over citation of authority has the potential to create, at best, information overload and, at worst, error in judicial decision-making; and
    4. Finally, too much information is arguably just as bad as no information at all, particularly in the context of the law. Quite aside from the risk of information overload, many lawyers now feel an urgent need to demonstrate that they have identified any and every single case that even remotely touches on their client’s cause for fear of being on the wrong end of a negligence action if their client doesn’t achieve success in court. The harder it is to set apart the material that really matters from the material bereft of authoritative value, the more inefficient the provision of legal advice and advocacy becomes. To support this proposition, I’ll briefly take you to stern guidance given by the former Lord Chief Justice, Lord Judge in R v Erskine [2009] EWCA Crim 1425; [2010] 1 WLR 183, CA:

      It follows that when the advocate is considering what authority, if any, to cite for a proposition, only an authority which establishes the principle should be cited. Reference should not be made to authorities which do no more than either (a) illustrate the principle or (b) restate it…

  7. The shift from print to online media has brought with it considerable change that you, as information professionals, will be acutely aware of:
    • It has changed where we buy our services from and how much we pay for them;
    • It has changed how and where we access the materials those services make available;
    • It has changed the way in which hitherto disparate materials link to and cross-reference each other; and
    • It has changed how we think about where the material we access originates from.
  8. Arguably – the technology – the platforms delivering the content (pre-eminently, in this jurisdiction, WestlawUK and LexisLibrary) – now occupy far more of our focus than the content itself. We are prone to concentrate far more, for understandable reasons, on the search capabilities of the various platforms; how we train others to become proficient in their use; and the opportunities the technology offers us to share and mobilise the content.
  9. These changes are symptomatic of the way access to legal information has developed, particularly over the last ten or fifteen years. This isn’t necessarily a bad thing, but it has, in my view, detracted from the attention we give to the “content” itself. And, without wishing to invoke a “Jamie Oliverism” along the lines of “you can’t appreciate a good roast lamb unless you’ve been to an abattoir”, understanding the provenance of the materials we make use of not only enhances the way we use them, it also helps us assess their relative value – and, in an age of content proliferation, an appreciation of provenance, function and value is very useful.
  10. So, I want to step behind this “platform” layer and take a closer look at how the class of legal content I’m concerned with, reports of case law, is produced.

The sources of English Law

  1. Our starting point is the sources of English law. The first thing most law students learn at university is that there are two main sources of English law. The first is the law made by Parliament: statutes. We learn that in the English legal system, this source of law is prime, because statutes are enacted by those with a democratic mandate. Parliament, and therefore its “Acts”, are sovereign. This source of law, for a law student, is conceptually quite easy to get to grips with: statutes are no more than a written list of rules bearing on a particular subject.
  2. We also learn about a second source of law: the law made by judges in the courts – the common law. Roughly speaking, we are told that where Parliament had been silent or unclear on a particular issue, the judges in the courts are able to create new rules in order to dispense with the legal problems the parties to a dispute present them with. Where Parliament has spoken on a subject by passing a statute, the court’s job is to give effect to the words of that statute as best it can.
  3. The notion of law made by judges in the courts is, I think, conceptually more difficult to grasp than laws made by Parliament in statutes; and things get trickier when we learn that the decisions of judges have to adhere to the doctrine of precedent.
  4. When I began studying law, this dichotomy struck me as being rather strange. Between them, these two vast pools of law contain the rules that govern everyone’s rights, obligations and liabilities. One of those pools of law, statutes, feels just about manageable – if I want to find the definition of a “theft”, I can look up the Theft Act 1968 and I will quickly see at section 1(1) that a theft is where a person dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
  5. But, the first pool overlaps with the second pool – the common law. And, because of this, we cannot, for example, take the words of section 1(1) of the Theft Act at face value – the meaning of the words in that short definition all bear meanings that have been defined by the courts. What does “dishonestly” mean? To find out we have to look at the decision of the Court of Appeal in R v Ghosh [1982] QB 1053. When is property said to be “belonging to another”? Again, it is to the common law we must turn to, specifically to the House of Lords’ decision in Lawrence v Metropolitan Police Commissioner [1972] AC 626.
  6. What I found puzzling as a law student was the fact that such a huge part of our corpus of law was made up by a combination of written rules, on the one hand, and a vast web of judgments, handed down at different times, by different courts, on the other. There was no single point at which the two strands were pulled together. All of this remains the case today – technology hasn’t changed this.
  7. And this moves me to make what will hopefully be a relatively uncontroversial proposition: if so many of our rights, obligations and liabilities are to be found in the decisions of judges, it is vital that the decisions of judges are made accessible. But, to this proposition, I add another: it is not enough that the decisions of judges be merely accessible in the sense that they are “obtainable”. What is also required is that they be organised and rendered into a system. If the decisions of judges are not made accessible in a systematic way, it becomes far more difficult to identify what the law actually is and, in turn, the operation of the rule of law is undermined.

The Establishment of the Incorporated Council of Law Reporting

  1. A bit of history now. To be in a position to assess whether law reporting still plays a role in bringing order to the common law is still of value, we need to understand a bit about how the system of law reporting we are familiar with today came into being.
  2. As I have said, the regular practice of law reporting dates back to the late 12th century, but the really interesting period for present purposes is the period of law reporting carried on by private individuals between the 16th century and the mid-19th century. This is the period of the Nominate Reports and there are certain features of this period of legal information dissemination that are echoed today.
  3. Even in the 21st century, cases reported by the Nominate reporters are cited in the courts. An example includes Pinnell’s Case (1602) 5 Co Rep 117a, a case decided and reported by Sir Edward Coke on the part payment of contractual debts. This period of law reporting was marked by a vast number of individual reporters publishing volumes or series of case reports under their own names. And, often, there were two of them, sounding like comedy duos: we had the reports of Adolphus & Ellis, Meeson & Welsby, Flanagan & Kelly…
  4. The Nominate reports worked well enough for a while, but over time a number of problems started to emerge:
    • The various series varied enormously in coverage, accuracy and reliability: occasionally cases reported in more than one series reported different holdings and outcomes, rendering the task of working out what an earlier court had said all but impossible.
    • The vast number of different reports on offer made it impossible to cultivate anything resembling a comprehensive library of legal material without enormous expense.
  5. In order to cure the risks of inaccuracy, inconsistency and expense, a better system for bringing the common law together was needed. The Incorporated Council of Law Reporting was established in 1865 to do just that and the series known as The Law Reports was launched and is still in circulation today. Whilst at pains to maintain the level of neutrality I promised at the outset, I hope you’ll permit me to point out two features that are peculiar to ICLR:
    1. First, ICLR’s reports are still seen as the closest we have come to having an “official” law reporting service.
    2. Second, ICLR was established as, and remains, a not-for-profit organisation with a range of charitable objects focused on supporting the administration of justice and the Rule of Law.

The law reporters

  1. So far as ICLR’s law reporting process is concerned, many aspects are the same today as they were in 1865. (I’d also hazard that the same applies at other law reporting organisations too). Now, as then, the purpose of the ICLR can be reduced to two core pillars: the first is to identify which cases to report and which cases to reject. The second is to find a way of defining and articulating the principle or principles for which each case reported stands as authority. The attainment of both of these pillars of function (for ICLR and its contemporaries) rests on the highest standards of legal scholarship. The most important asset for any law reporting organisation is its team of law reporters – and ICLR is very fortunate to have the largest team of its kind in the English jurisdiction, if not the world.
  2. Even though most of us will be familiar, to greater or lesser degrees, with law reports – it’s fair to say we are generally far less familiar with the work carried out by those writing them. In fact, it wasn’t until I became a law reporter myself that I had any idea of what these “law reporters” spent their time doing. But, it’s my belief that to fully understand law reporting and, by extension, whether it is still of value today, we need to understand what the law reporters do. All law reporting organisations have their own ways of doing things, so I’m going to base this account on matters as I know them at the Council.

Law reporters as journalists

  1. Law reporters, who must be barristers or solicitors, are a niche breed of legal journalists, indeed we share some similarities with our Fleet Street colleagues. If a law reporter’s job could be divided three ways, the first third of the role is journalistic in nature.
  2. The law reporter’s first task is to cover the courts: this, at its simplest, means being physically present in court to listen to the cases unfold. But, unlike our Fleet Street colleagues, we are not in court to solely cover sensational cases – we are there to cover all substantive hearings.
  3. The reporter’s first job, once in court, is to quickly identify what the case is about: who are the parties, what are the issues in dispute, what is the legal framework governing the resolution of the dispute? Even before the hearing starts, the reporter will inevitably have spoken to counsel for all of the parties to get a flavour for what’s happening. The next job is to get a copy of the papers: the skeleton arguments filed by the parties, together with procedural documentation such as the claim forms or appeal notices. This information enables the reporter to isolate the terms upon which the claim, appeal or application (whichever it may be) is being advanced upon.
  4. The second job is to cover the argument – that portion of the proceedings where counsel for all parties make their legal and factual submissions to the court. Here, the reporter will take a close note of the argument orally delivered.
  5. The final component of the journalistic phase of the reporter’s role is probably the most critical – to take a close note of the judgment, if given extempore, or to be there to collect a copy of the judgment if it is handed down in written form, as is often the case in more complex cases.
  6. Before I move onto the next phase of the law reporter’s role, I want to launch a pre-emptive strike on a question I have been asked many times before: “why do law reporters bother going to court when they can just read a transcript of the judgment?” There are at least three answers to this question:
    • If law reporters relied on transcripts, we would miss those judgments given extempore and read into the record – a transcript of which will not necessarily ever materialise on BAILII, for example.
    • If law reporters didn’t physically attend court, it would be impossible to accurately reflect the arguments the court heard. We could only rely on the summary of argument set out by the judge in the judgment (if the judge has chosen to expressly address them) or rely on the skeleton arguments (if they are available). And, skeleton arguments are not a foolproof guide to the argument the court actually heard. It is not uncommon for judges to instigate lines of argument counsel have not addressed in their written submissions.
    • Being physically present for the argument and judgment assists the reporter, to a very significant degree, in understanding what the case is about. This first hand knowledge of the case is worth its weight in gold when it comes to summarising the factual matrix of the case and extracting the ratio of the decision.

Law reporters as academics

  1. Whereas the first phase of the reporter’s role is journalistic, the second phase is more academic. Having collected the judgment in any given case, the reporter’s next job is to assess whether that judgment should be reported.
  2. Selectivity, for reasons I will come onto in more depth later, is at the core of ICLR’s reporting ethos and, to a greater or lesser extent, publishers of law reports generally. Casting our minds back to one of the problems during the days of the Nominate reports, the sheer volume of reports was becoming an issue. Even today, it is arguable that there is a strong feeling in the judiciary that too much, rather than too little, is reported.
  3. But, how are we to decide whether a judgment is reportable or not? The answer is through the application of the reportability criteria laid down during the establishment of the Council by Nathaniel Lindley QC (who later became the Master of the Rolls).
  4. First, we need to be clear about what should not be reported. On this, Lindley said:

    With respect to subjects reported, care should be taken to exclude –

    1. Those cases which pass without discussion or consideration, and which are valueless as precedents.
    2. Those cases which are substantially repetitions of what is reported already.
  5. So, the law reporter will be keen to weed out those cases that are, for example, decided purely on their facts, or those cases decided upon the application of existing principle and reject them for reporting: they have little or no value as authority.
  6. But, what are the hallmarks of a reportable case? Again, Lindley provides guidance to the law reporter:

    On the other hand, care should be taken to include –

    1. All cases which introduce, or appear to introduce, a new principle or a new rule.
    2. All cases which materially modify an existing principle or rule.
    3. All cases which settle, or materially tend to settle, a question upon which the law is doubtful.
    4. All cases which for any reason are peculiarly instructive.
  7. Lindley’s criteria are a guide to the qualities a reportable case may possess, rather than a definition of reportability per se. But, in an effort to reduce that criteria into a straightforward, modern format, it is safe to say that we strive to identify and report cases that make new law, change existing law, explain existing laws or clear up some pre-existing uncertainty in the law.
  8. On a day-today basis, one of the law reporter’s primary concerns is that practitioners and the courts have access to precedent setting cases – but that isn’t our only concern. Looking through the prism of the reportability question, law reporters can also be seen to be performing a higher function: namely, the analysis of the constant ebb and flow of the corpus of decisions that make up the common law. When a new case registers a shift or fluctuation in the common law by making new law or modifying existing law, the law reporter’s job is to record and articulate that shift or fluctuation in the form of a law report.
  9. This is a point Lord Neuberger made when giving the first annual BAILII lecture (No Judgment, No Justice) in November 2012. His Lordship said:

    Scholarly law reporting, judgment enhancement, is of particular importance because of the role it plays in developing the corpus of law. This is especially true of the common law, which is of course judge-made law. The common law develops gradually through precedent, which is of course contained in Judgments, and precedent is refined over time. It changes as society changes; principles are adapted and applied. The common law could not do this without scholarly law reporting.

  10. So, when the law reporter, having carefully read and considered a judgment, turns to the question of whether it is reportable or not, she is not merely making an editorial decision to publish or not to publish – she is herself making a judgement about whether the judgment represents a what I would term as a “common law event” significant enough to be recorded, analysed and communicated as a published law report. The very act of reporting a case both demonstrates and elevates the importance of a case.
  11. These decisions require a great deal of skill. In order to make an informed decision on reportability, the reporter needs to be able to isolate the essential facts of the case; extract the ratio of the decision with sufficient precision and assess, against the background of existing law (be it in statutes or existing case law), whether the case in question is doing something novel. On top of this, the reporter will need to consider whether the case in question has affected the value of earlier authorities – has it applied or followed an earlier decision, distinguished the ambit of an earlier authority or overruled it altogether?

On judicial consideration

  1. I want to focus on this concept of judicial consideration for a few moments, because the evaluation of how new law affects existing law is critical – it’s what makes the common law system work. New technology has given rise to an algorithmic approach to the determination of whether a case is “good law” or not. A number of legal information vendors around the world are starting to make use of computer programs that are seemingly capable of determining whether a case is still good law or not. This is all well and good if the shades of judicial consideration can be reduced to positive, negative, neutral or mixed, but the concept of judicial consideration is far more complex than separating cases into the good, the bad and the ugly.
  2. Law reporters worth their salt still approach the question of judicial consideration as an intellectual exercise that can only be performed well by closely analysing the judgment, followed by the application of legal knowledge and case law technique. Is the court adopting a decision of a higher court where the factual matrices of the cases are substantially the same? If so, the earlier decision may be said to have been “followed”. Is the court adopting the decision of a court of coordinate or superior authority where the factual matrices of the cases are not substantially the same? If so, the earlier decision may be said to have been “applied”. Has a case really been “considered” merely by reason that it was mentioned once in a 100-paragraph judgment? Has dicta in an earlier decision been distinguished? If so, how has that decision’s future application been limited or cut back? It’s important to get this stuff right and you can’t get it right by sitting back, pushing a button and waiting to see what comes out.

The law reporter as Judgment Enhancer

  1. The last phase of the reporter’s role is the bit that the reader sees when they select a volume from a library shelf or a case from a list of results. The reporter’s last duty, having decided to report, is to enhance the judgment: to convert the raw transcript of what the judge has said into a law report.
  2. There is a note of irreverence in saying that law reporters enhance judgments, but of course no irreverence is intended. By enhancing the judgment I really mean two things:
    • First, the process of putting the case into its common law context for later retrieval: carefully crafted catchwords, which appear at the head of the report, permit the case to be indexed into a rational taxonomy.
    • Second, the addition of value that increases the utility of the judgment as a source of authority for future deployment in court and learning.
  3. Here, the reporter moves from academic to draftsman. She will, as I have mentioned, craft a set of catchwords encapsulating the subject matter of the case and the questions the court was asked to answer. A headnote is drafted setting out all of the critical facts necessary to support the identified ratio of the case. Care must be taken to include all that is relevant, but equally, care needs to be taken to exclude ephemeral matter. You may notice, on close inspection of the factual section of a headnote that it is rare for the names of the parties or dates of events to be included. This is because, more often than not, names and dates are not relevant to the propositions of law for which cases stand as authority. Names, of course, may be relevant in a trade mark case. Dates may be relevant if the case involves questions of limitiation.
  4. Next, and arguably the most important element of value, comes the summary of the court’s decision. This can be the most challenging aspect of the drafting process, particularly where there are dissenting judgments, or where, as often happens, a panel of three or more judges arrive at similar conclusions via different routes.
  5. A good example of such a case is the House of Lords’ decision in R (on the application of Pinochet Ugarte) v Bow Street Magistrates’ Court (No 3) [2000] 1 AC 147. The case is fairly well-known, and was concerned with the question, inter alia, of whether General Pinochet had immunity under customary international law from allegations of torture by reason of that fact that he was, at the material time, a head of state (immunity ratione personae) and/or that the alleged torture had taken place in the context of his functions as head of state (immunity ratione materiae). The decision was reported in The Law Reports and the reporter was Ms Bobby Scully, who still reports from the Supreme Court and is also the editor of the law reports appearing in the Times.
  6. To give you a flavour of the scale of the task Ms Scully had in summarising the ratio of the decision in that case, it will help you to know that:
    • Seven Law Lords presided, each giving their own speech.
    • On the point of whether extraterritorial torture was a crime in the UK before the passing of the Criminal Justice Act 1988, Lord Millet dissented.
    • On the point of whether a former head of state had immunity from the criminal jurisdiction of the UK for acts done in an official capacity as a head of state, Lord Goff dissented.
    • On the point of whether there was universal jurisdiction to prosecute crimes of torture, Lord Hope, Lord Browne-Wilkinson and Lord Saville all offered up their own obiter dicta, dicta falling outside the ratio of the case, but nevertheless relevant to the decision as a whole.
    • There were over 80 authorities cited in the speeches and over 50 additional authorities cited in argument.
    • So developed was the legal argument, that Ms Scully’s summary of argument ran on for 30 pages, one of the longest notes of argument ICLR has published in 150 years.
    • The speeches ran on for over 100 pages.
    • Despite the complexity and volume of the material, thanks to the precision with which Ms Scully encapsulated the various holdings in that case, a reader of the report is only required to read a four paragraph headnote to understand the decision, instead of over 100 pages of highly complex judicial reasoning and discourse.
  7. When we think of making information ‘accessible’, we often think in terms of cost and ease of location and retrieval. But, information accessibility is wider than this. The law reporter’s effort, in drafting precise and accurate headnotes, makes the contents of judgments intellectually accessible. Without those headnotes, readers, regardless of their seniority and experience, have to wade into the text of the judgments utterly unaided.

The note of argument

  1. In addition to setting out the procedural background of all the cases we report, and subjecting every aspect of the judgment to rigorous checking, the other piece of substantial value the reporter enhances judgments with is the note of argument.
  2. To my knowledge, The Law Reports is the only series in England & Wales to incorporate this feature. In fact, I believe there are only a handful of reporters worldwide that make a point of including a note of the argument.
  3. The note of argument is a valuable research resource and this is because, in the context of the English adversarial system, the advocates play a central role in judicial decision-making. If you visit the Royal Courts of Justice to observe proceedings as they take place, you’ll see that, in discerning what elements of the facts of a particular case attract a particular rule of law, the judges look to counsel to tell them – it doesn’t work the other way round. Counsel play a central role in defining the parameters of the proceedings in question and craft the sphere of material the court looks to in order to make a decision. If only for this reason, the contribution counsel make in argument is an invaluable tool for understanding judicial decisions.
  4. The point of all this, I would suggest, is that these various elements of value added by the reporter mean that a great deal of the work in understanding cases has already been done. These are features that are probably easy to take for granted the more we get used to having them, but any suggestion that lawyers would find raw transcripts easier to intellectually penetrate would be a difficult one to maintain.

Law reporting in the digital age

  1. This brings me on to consider the final issue I want to explore in this seminar: namely whether, in the context of the vast quantity of free-to-air law now available online together with the presence, in the UK, of two colossal content aggregators, law reporting is still relevant: to bring the question down to its simplest form: do we really need law reporters in this day and age?
  2. I’m going to preface this enquiry with a number of propositions:
    • Judicial decisions are the constituents of the common law and as such belong to the body of laws that govern every aspect of our lives, be they professional or personal, civil or criminal.
    • Whether or not legal materials are free at the point of access, there is always a cost attendant to their production and dissemination. There is no way around that fact, so far as I can tell.
    • Lawyers are still the principal users of legal information, and for lawyers, knowing how to find the law is often more important than knowing the law itself.
    • Nevertheless, public or ‘lay’ demand and consumption for legal information is higher than it’s ever been and continues to rise.

Threats to the continued existence of law reporting

  1. As I see it, law reporting organisations (especially ICLR) need to start responding to the following sources of threat:
    • The hyper-availability of free transcripts, through platforms like BAILII, has led some traditional users of law reports to question the need for paid-for alternatives, even though the paid-for material provides a range of enhancements not present in raw-form transcripts that make the content both easier to use and more reliable.
    • Digital publishing has driven consumer appetite for quantity of material through the roof – in other words, customers want all of it, not some of it. This, of course, stands in stark conflict with the principle of selectivity.
    • The cost of paid-for services has driven an understandable desire in the market to be able to get all of the content they require from a single online outlet (the “all under one roof” effect).
    • Digital publishing has driven consumer expectations as to the pace of publication. We’re not willing to wait for a matter of hours more content to appear, let alone months.

BAILII

  1. Turning to the first of those challenges, specifically the availability of free transcripts on BAILII. It is my position that to view BAILII as a threat to law reporting is misconceived. Going further, the view that BAILII is a threat to ICLR is particularly misplaced.
  2. Let’s start by considering what the two organisations, BAILII and ICLR, hold in common:
    • Both organisations hold charitable status – they are both not-for-profit and they both reinvest any financial surpluses straight back into the organisation. Neither organisation is answerable to a board of shareholders – BAILII has its board of trustees, ICLR has its Council.
    • Both organisations are free from judicial, political and shareholder interference and hold, as their core charitable objects, the maintenance of the rule of law and the administration of justice.
    • Both rely on the legal community for their financial survival, BAILII through charitable donation, ICLR through the sale and licensing of its publications.
  3. In the first annual BAILII lecture in 2012, Lord Neuberger dealt with the issue head on. To quote his Lordship a second time:

    It might be said though that with the growth of BAILII that scholarly law reporting is to a certain extent no longer necessary. This view would see Judgment-enhancement and Judgment-dissemination as competitors, with the latter driving out the former. I disagree with this view. The two types of law reporting complement each other…

  4. Rather than viewing BAILII as a threat, the better view is that ICLR (together with similar outfits) and BAILII are two sides of the same coin and are complementary of one and other. BAILII’s forte is speed and comprehensiveness. Fast, free access to raw transcripts of judicial decision-making. ICLR’s forte, on the other hand, is selectivity and expression. To quote Lord Neuberger again:

    It seems to me that the relationship which BAILII and the ICLR have just entered into [a relationship whereby the respective online platforms of the two organisations link into one and other] demonstrates clearly the symbiotic relationship that exists between the two types of law reporting. One is compendious and readily and speedily accessible to all. The other is selective, fundamental to the development of the law, and primarily directed to legal academics and professionals.

  5. The extent of BAILII’s wide and free accessibility supports the rule of law, because undoubtedly the decisions of the judicial branch of state should be available to all. But, in order to prevent a flood of case law of no precedential value hitting the courts, the need for selectivity is heightened, rather than reduced by the presence of free-to-air services. The freer the contents of the common law, the greater the need for control. I appreciate the contradiction implicit in that remark. But the fact remains that the common law is not only there to be accessed by all who are “interested” in doing so from time to time. The common law forms one half of the body of laws that govern the conduct of everyone within and sometimes beyond Britain’s borders. For that reason, and that reason alone, the cases that change the law – the cases that really matter – need to be identified, explained and disseminated in an authoritative way, by an authoritative institution that is in possession of the most skilled people to do that job. And this all goes to addressing the fact that the market, quite understandably, expect to be provided with as much content as possible. The quantity of content sought is available in raw form already. But it is not desirable to grace every single case, regardless of how ephemeral it may be, with all the bells and whistles reserved for cases that merit inclusion in a proper series of law reports.
  6. Until a time comes when lawyers, academics and judges would prefer to have to approach cases like Pinochet (No 3) without the assistance of a legally qualified law reporter’s headnote; until there is a preference for judgments where typographical, factual and even legal errors remain within the text; and until no one really minds if the law they are citing is good law or not, the work done by the law reporters will remain vital, whether we are conscious of it or not.

Conclusion

  1. Case law is the source of evidence we look to discover and demonstrate what the law is where Parliament has intentionally or unintentionally left a gap in the law for the courts to fill. For reasons that should be blindingly obvious, it is critical that we ensure that that source of evidence is as reliable and up to date as possible.
  2. It is difficult to picture how things are going to look in ten, twenty or thirty years time. But, I hope, for the benefit of the English common law, the judgment enhancers are still roaming the halls of the Royal Courts of Justice and the Supreme Court and making sense of English judicial decision-making for the benefit of lawyers, students, judges, academics and law librarians here and further afield.

Daniel Hoadley

12th June 2014
BIALL Annual Conference, Harrogate