Case law: sometimes less is more

Over-citation of authority

The cornerstone of ICLR’s approach to reporting judicial decisions is that only the cases that make new law or change existing law merit coverage in a law report. The reasoning behind this philosophy is that cases decided purely on their facts, or through the application of principles in cases that have already been reported, have little or no value as authority.

The value of selectivity applies not just to the question of what to report (only cases that add to, rather than merely illustrate the law), but also to the choice of which cases to cite in support of a proposition of law. There is always a temptation, whether when writing an essay, giving a lecture, arguing a moot or presenting submissions in a case (or even, dare one say it, in giving judgment) to cite too much, particularly if you have gone to a lot of trouble to find the right cases. It is a temptation that ought to be resisted.

More does not mean better

Judges in particular don’t like it. Here is the current Lord Chief Justice, Lord Judge, giving judgment in R v Erskine (Kenneth) [2009] EWCA Crim 1425; [2010] 1 WLR 183, paras 75-76:

“[75] The essential starting point, relevant to any appeal against conviction or sentence, is that, adapting the well known aphorism of Viscount Falkland in 1641: if it is not necessary to refer to a previous decision of the court, it is necessary not to refer to it. Similarly, if it is not necessary to include a previous decision in the bundle of authorities, it is necessary to exclude it. That approach will be rigidly enforced.

“[76] 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.”

Lord Judge CJ cites a number of earlier cases in which judges and law lords have complained, in their turn, about the excessive citation of authority in their courts. His Lordship is justified in doing so in order to underline the point that the problem is not a new one.

In another recent case Deutsche Bank AG v Highland Crusader Partners LP [2009] EWCA Civ 725; [2010] Bus LR 515, para 124, Lord Justice Carnwath reiterated what he had said in an earlier judgment:

“One of the curses of the common law method in the 21st century is unlimited accessibility to authorities, reported and unreported, and apparently unlimited resources for copying them. (See the Practice Direction on Citation of Authorities [2001] 1 WLR 194.) On the other hand, one of the blessings is the availability of up to date and authoritative textbooks on almost every relevant subject, in which the material cases have been sorted out and digested. For my part, at least where I am concerned with common law rather than statute, I find it most helpful to start by looking for a succinct statement of the relevant principle: either in a recent binding decision of the higher courts, if there is one; or, if not, in a leading textbook (or, where available, a Law Commission report). Of course, that is only the starting point. Authorities may be needed to qualify, expand, or merely illustrate the basic principle. However, it is important to be clear for which of those purposes any case is being advanced. Furthermore, where the purpose is to qualify or expand, it is not enough simply to cite an authority, without being able to articulate with reasonable precision the proposition which it is said to support.”

The over-citation of authorities is exacerbated to some extent by the over-reporting of cases, but a much greater problem is a tendency to make unselective use of unreported transcripts, especially now that they are so easy to search for and access online.

Sometimes, as in minimalist design, “less is more”.