For justice to be seen to be done, judgments given in open court must be accessible in two senses. They must be clearly written so that a reasonably well informed member of the public can understand what is being decided. But they must also be available to the public, and in this sense their accessibility depends on their being reported.
Lord Neuberger, President of the Supreme Court, so stated in the first BAILII annual lecture, hosted by Freshfields Bruckhaus Deringer LLP at their premises in Fleet Street last night (Tuesday 20 November).
Judges were required both to exercise judgement, and to give judgments. Without reasons, there could be no judgment. For justice to be seen to be done, two fundamental requirements had to be satisfied. First, judges should give publicly available reasons for their judgment. Second, those judgments must be reliably disseminated and reported.Lord Neuberger said that by providing free access to primary legal materials, including statutes as well as judgments, BAILII (the British and Irish Legal Information Institute) was providing a unique service, whose importance was all the greater given the increasing number of self-represented litigants (what used to be called “litigants in person”) appearing in the courts.
In relation to the first requirement, it was important to recognise that the public were the real audience: judgments had to speak to the public, as well as to the lawyers and litigants. They should therefore be sufficiently well written to enable reasonably intelligent non-lawyers to understand what the case was about.
Open justice underpinned the rule of law. There was a particular reason for this: the right to a fair trial required a reasoned judgment to be given. But there was a more general reason too, which was that a clearly reasoned judgment enabled the public to see how justice was being dispensed.
Lord Neuberger had a number of suggestions for his judicial brethren. The first was that, when giving judgment, they should give a short summary at the start, like a headnote. By no means all judgments were available with a headnote in a law report, and even if they were, litigants might not have access to them. ICLR’s database had made significant steps in that direction (by providing free case summaries), but in the absence of a judgment reported by ICLR a litigant could be at a disadvantage.
Judges could also give better guidance to the structure of their judgments, as some already did, with tables of contents, a “roadmap” to the contents, and headings. This was not only good discipline but also what legal readers wanted, a fortiori non-lawyers.
His Lordship also urged a certain amount of judicial restraint. Where the law was complex and depended on precedent, it should be explained in a consistent way and coherently developed. Judges should take a more rigorous approach to the length of their judgments, removing anything otiose and avoiding excessive displays of erudition.
In appellate courts, judges should avoid giving unnecessary concurring judgments, which risked introducing confusion and giving rise to debate, as well as adding to the amount that needed to be read; and they should only give a dissenting judgment where they not only did not agree with the majority but felt it important to explain why. He was not suggesting a straitjacket of compulsory unanimity, merely a bit of judicial self restraint.
The second fundamental requirement of justice being seen to be done was law reporting. Lord Neuberger identified two types of reporting.
First, what he called “judgment dissemination”, in the form of easy and full access to all judgments given in open court. That was what BAILII provided.
Second, what he called “judgment enhancement”, in the form of scholarly law reporting as done by the Incorporated Council of Law Reporting for England and Wales (ICLR) in The Law Reports since the 1860s, and the Weekly Law Reports since the 1950s, and by LexisNexis in the All England Law Reports since the 1930s.
Both forms of reporting were of fundamental importance. Both supported the administration of justice, and made the law available to students, practitioners and judges.
Scholarly law reporting, or judgment enhancement, was of particular importance in developing a corpus of law, particularly the common law, which was judge-made law, based on precedent, refined over time. Such law changed as society changed. You could not do this without scholarly law reporting. That had been the problem with the unreliable and inaccurate Nominate reports (the various individually published series which preceded the establishment of ICLR in 1865): how could lawyers and judges develop the law if judgments were not properly reported?
The late Lord Bingham had praised the “scholarship and amazingly high standards of accuracy” of The Law Reports. Reliable accuracy was important, but so was the selection of cases to be reported, particularly as the number of judgments increased. Judgments which developed the law and set new precedents needed to be identified.
In the case of The Law Reports, as well as the headnotes, lists of cases cited and other enhancements, there was also a report of the argument, which enabled readers to see what points had been made or conceded, and which had not been made, to the court giving the reported judgment.
Newspapers no longer reported legal proceedings in detail, and (with a few exceptions) the days of the dedicated legal correspondent were over. Blogging and tweeting were not the same.
Hence the importance of judgment dissemination. The extent and the speed of the revolution achieved by BAILII was astonishing. It was now an indispensable and comprehensive source of information. There was no better tribute than the fact that, within a couple of years of its establishment, lawyers were taking it for granted. Its remarkably well organised website made finding judgments easy.
Inevitably, the cost of legal advice had increased, now that every judgment was available at the touch of a button, because of the need for lawyers to trawl through and check them all; and the size of court bundles had correspondingly increased. Lord Neuberger urged the judiciary to take a stronger line on the excessive citation of authorities.
But his Lordship disagreed with those who saw the free availability of judgments on BAILII as a threat to traditional law reporting. The two different types of law reporting complemented each other, as was demonstrated by the recent partnership of BAILII and ICLR. The link from BAILII judgments to an ICLR summary was a very beneficial feature.
BAILII made judgments accessible and available. Scholarly law reporting was more directed to the expert judicious selection and summarising of judgments for a more specialist readership, as speedily and accessibly as was consistent with those aims. There was no more than a theoretical risk that BAILII would undermine the price paid for scholarly law reports, and one should ensure that they could continue to exist and complement each other. But both played an essential role, and should be supported.
Introducing the lecture to an auditorium packed with senior judicial figures, leading practitioners, academics and some very grateful law reporters, Sir Stanley Burnton, chairman of the trustees of BAILII, said that its online platform provided the practical implementation of the idea, in which he believed passionately, that all citizens had the fundamental right to free access to all primary legal materials. He invited anyone who shared that belief to support BAILII, which was funded entirely by sponsorship and charitable donations.
He thanked Nick Segal, a partner at Freshfields, for his practical support in organising and hosting the first of the annual BAILII lectures, which were intended to raise its profile and provide an opportunity to thank its many supporters.
Reporter’s note. This summary of Lord Neuberger’s lecture was written from my notes and without the benefit of the written copy which is expected to be made available. As soon as it is, we will provide a link.