On the blog in July, we highlighted a recent Court of Appeal case reminding practitioners of the need to rely on authorities reported in the official law reports where available and not to cite unreported cases for propositions that could be found in reported ones (see Citation of authorities: ignore the practice direction at your peril!).

A further reminder from the Court of Appeal of the latter point has followed in Kaur (Jadgeep) v Secretary of State for the Home Department [2019] EWCA Civ 1101; [2019] 4 WLR 94: whilst the Practice Direction (Citation of Authorities) (2012) [2012] 1 WLR 780 is no absolute bar to citing unreported cases, practitioners should think twice before doing so unless they can point to the “relevant statement of legal principle not found in reported authority”. The “kitchen-sink” approach to citation is “wholly illegitimate” and “wasteful of court time and scarce resources”.

In the principal judgment of the case, Coulson LJ said, relevantly:

“22. Mr Malik argued that [Marcellana v Secretary of the State for the Home Department UT 1A/01888/2013 (unreported) 27 June 2013] was not citable to this court, and relied on Practice Direction (Citation of Authorities) (2012) [2012] 1 WLR 780. However, I think Mr Muman was right to argue that there was not a complete bar on the citation of such authorities to this court …

23. However, whilst citation may be permitted, that is only where ‘there is a relevant statement of legal principle not found in reported authority’. This is not simply a dry argument about precedent. Immigration and asylum work at all levels is bedevilled by the promiscuous citation of authorities from all kinds of judges, regardless of the factual background of the case in question, in the hope that there might be something, whether law, or fact or even comment, which might look roughly similar to the case in question and therefore might assist the argument being advanced. It is not unfair to dub it a ‘kitchen-sink’ approach to citation. It is wholly illegitimate and merely adds to the workload of already-stretched FTT and UT judges. Proper limits on the citation of authorities in judicial review cases are required if this blizzard of references to irrelevant, fact-dependent cases is ever going to be stopped.

27. … not only is the attempt to cite Marcellana’s case illegitimate (because there is no statement of principle that cannot be found in hundreds of authorities going back centuries …), but its citation also serves to demonstrate the absence of any plausible arguments available to the appellant in the present case.”

Floyd LJ gave a short separate judgment, at paras 47-49, to add “a few words on the inappropriate citation of the UT’s decision in Marcellana’s case”. He continued:

“The excessive citation of authorities because they bear similarities on the facts to the case under consideration is not a new problem, or one limited to the field of immigration and asylum law. … Citing previous decisions on questions of fact simply serves to increase costs and is wasteful of court time and scarce resources.”

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