Knowledge

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The Past, Present and Future of the ICLR

The following essay is taken from the The Law Reports 1865-2015 Anniversary Edition, published to mark ICLR’s 150th anniversary in 2015. (The book is available from the ICLR Bookshop.) 


This collection of fifteen landmark cases has been published to mark the sesquicentenary or 150th anniversary of the founding of the Incorporated Council of Law Reporting for England and Wales (ICLR) in 1865. The cases were chosen by our readers, and are offered as much by way of a tribute to their continued support and engagement, as to mark the ICLR’s own history and achievements. Naturally, it was impossible to include in a single volume more than a limited selection, let alone to do justice to the range of subject matter and courts covered by the ICLR’s publications in the course of its history. But we hoped they would reflect both the continuing relevance of certain older cases and the consistency of our approach over the last 150 years. The choice of fifteen represents, albeit not strictly chronologically, one per decade of the ICLR’s existence. I shall explain more about the selection process in due course.

The publication of this special Anniversary Edition also offers an opportunity to stand back a little and reflect on the reasons why the ICLR was set up in the first place, to see how the conditions in which it operates have changed, and to consider whether and to what extent it still fulfils its original purposes.

History

Law reporting has a venerable but occasionally chequered history. No one now would seriously dispute the need for accurate and reliable reports of legal proceedings, published promptly and at a price affordable to both students and professionals. Yet the fulfilment of such aims was, until 1865, achieved in a somewhat piecemeal, sometimes haphazard, fashion.

Guy Holborn, the eminent librarian of Lincoln’s Inn, has written entertainingly about “The Old Law Reporters” elsewhere in this volume (post, p 29) so I can be brief. Suffice it to say that regular reporting began with the Year Books, transcribed from the Plea Rolls begun in 1189. The Year Books, which ran from 1285 to 1537, contained notes of cases written up in Anglo-Norman by apprentices to the law. Early commentators on the law produced authority for their propositions which was often decidedly hearsay or anecdotal. But by the 16th century individual reporters were publishing volumes or series of case reports under their own names. Often there were two of them, sounding a bit like comedy duos: Adolphus & Ellis, Meeson & Welsby, Flanagan & Kelly. There was a series called Dickens’ Reports, but they have nothing to do with the novelist, although he did do news reporting from the courts and of course from Parliament, where he was renowned for the speed of his shorthand. Dickens the law reporter published two volumes covering from 1559 to 1792: it’s unlikely he was in court for all of these cases.

These various freelance productions are now collectively known as The Nominate Reports. Many are still cited and referred to today (particularly those edited and collected into a series called The English Reports) but the problem was that they varied enormously in coverage, accuracy and reliability. Occasionally cases reported in more than one series even appear with different holdings.

Certain reporters, in particular, were the subject of astringent comments from the Bench. For example it was said of Espinasse, whose six volumes cover from 1793 to 1807, that he was deaf and that he “heard one half of a case and reported the other.” Lord Denman CJ was later

“tempted to remark for the benefit of the profession that Espinasse’s Reports, in days nearer their own time, when their want of accuracy was better known that it is now, were never quoted without doubt and hesitation…”

Lord Mansfield absolutely forbade the citing of Barnardiston’s Reports in Chancery (1726-35),

“for it would only be misleading students, to put them upon reading it. He said, it was marvellous however, to such as knew the serjeant in his manner of taking notes, that he should so often stumble upon what was right: but yet, that there was not one case in his book, which was so throughout.”

In the Modern Reports, covering 1669 to 1732, Pollock CB declared, “You will find authority … for many propositions that are not law.” One report in volume 8 was described by Lord Kenyon CJ as “totally mistaken there, as indeed are nine cases out of ten in that book.” Lord Holt exclaimed of volume 4: “See the inconvenience of these scrambling reports; they will make us appear to posterity for a parcel of blockheads!”

It was, therefore, as much to ensure standards of accuracy, as uniformity of appearance and breadth of coverage, that the ICLR was ultimately founded to replace all these and later freelance series with its own professionally supervised and judicially approved reports.

Establishment of a Council of Law Reporting

In 1849 a report of the Law Amendment Society complained that although the decisions of the courts and tribunals were “the formal constituents of the common law,” they were in no respect officially promulgated. The report observed that:

“It has long been considered a practicable scheme for any barrister and bookseller who unite together with a view to notoriety or profit, to add to the existing list of law reports.”

The result was that

“even if all the reports which are published were correct and given by competent persons, they are now so numerous that they cannot be known to one tithe of the practitioners of the law. They are beyond the reach not only of the public, but of the great body of the profession.”

By 1863 it was apparent that there was widespread dissatisfaction with the system. WTS Daniel QC, in a letter to the Solicitor-General, Sir Roundell Palmer, said that there were no fewer than sixteen series of authorised reports. He complained of their “enormous expense, prolixity, delay and irregularity in publication,” and of their “imperfection as a record, for want of continuity.” He also objected to their habit of “reporting cases indiscriminately and without reference to their fitness or usefulness as precedents, merely because, having been reported by rivals, the omission of them might prejudice circulation and consequently diminish profit”.

The letter was accompanied by a “Paper on Legal Reports” written by Nathaniel Lindley QC (who went on to become Master of the Rolls and a Law Lord) in which he set out what in his view were the objects of a law report and the criteria for selection of cases. The latter have been quoted elsewhere in this volume, both by Clive Scowen, in “150 Not Out” (ante, p 3) and by Daniel Hoadley, in “The Curious Case of the Judgment Enhancers” (post, p 17). Suffice it to say, he was as insistent about what should not be included, as he was on what should. And he was scathing about the current arrangements, observing:

“the authorised reports however are by no means what they should be. They are all very expensive—many of them are shamefully in arrear, and some of them are disgracefully done.”

At the time, the “regular” or “authorised” reports consisted of the following series and their authors:

  1. House of Lords Cases (other than Scotch appeals), by Clark & Finelly.
  2. Scotch Appeals, by Macqueen.
  3. Privy Council Cases, by Moore.
  4. Chancery Appeals, by De Gex, Jones & Smith.
  5. Bankruptcy cases, by De Gex, Jones & Smith.
  6. The Rolls Court, by Beavan.
  7. Chancery reports (V-C Kindersley), by Drewry & Smale.
  8. Chancery reports (V-C Stuart), by Giffard.
  9. Chancery reports (V-C Woodley), by Hemming & Miller.
  10. Queen’s Bench reports, by Best and Smith.
  11. Common Bench reports, by Harrison & Rutherford
  12. Exchequer reports, by Hurlstone & Coltman.
  13. Probate and Divorce Court, by Swabey & Tristram.
  14. New Admiralty Reports, by Browning & Lushington.
  15. Crown Cases Reserved, by Leigh & Cave.
  16. Registration Cases, by Keane & Grant.

In addition, there were six series of general reports:

  1. The Law Journal.
  2. The Jurist.
  3. The Law Times.
  4. The Weekly Reporter.
  5. The Solicitors’ Journal.
  6. The New Reports.

The expense of acquiring the sixteen series of authorised reports was about £30, and that of the others about £15, making a total of £45. That did not include binding, or the inclusion of any sort of digest or index. (Compare this with the cost of a complete set of The Law Reports, when launched two years later, of five guineas (£5.25), and you begin to see why one of the key objects of the new system was “publication … at a moderate price”.)

The result of all this lobbying was the adoption, at a general meeting of the Bar held at Lincoln’s Inn on 28 November 1864, of a scheme to publish the decisions of the superior courts of law and equity under the management of a Council composed of members of the Inns of Court and of the Incorporated Law Society. The Council of Law Reporting was duly constituted in 1865, and was incorporated as a company limited by guarantee in 1867. Its memorandum of association included the following objects:

“1. The preparation and publication, in a convenient form, at a moderate price, and under gratuitous professional control, of Reports of Judicial Decisions of the Superior and Appellate Courts in England.

“2. The issue, periodically or occasionally, of any subsidiary or other publications relating to legal subjects which it may be considered expedient to combine with the publication of such Reports, including the Statutes of the Realm …”

The Council’s first law reports were published in November 1865. They were divided into eleven different series, covering the then myriad divisions of the courts, but already reduced from the antecedent sixteen. A decade later these were consolidated into six series, following the reorganisation of the courts of law and equity effected by the Judicature Acts 1873–75. In 1891 the Council introduced the simplified arrangement of dated annual volumes in four series which continues today, comprising Appeal Cases (covering the House of Lords –now the UK Supreme Court — and the Privy Council) and separate volumes for the Chancery, Queen’s Bench and Family (formerly the Probate, Divorce and Admiralty — also known as “Wills, Wives and Wrecks”) Divisions of the High Court and appeals or references therefrom. The standard abbreviations for these are well known: AC, Ch, QB (or KB) and Fam (formerly P).

Other publications

In 1866 the Council began publishing the Weekly Notes as a way of making decisions more quickly available and of covering additional cases which, though of interest, did not merit a full law report. As well as case summaries, it contained legal lists and notices, exam results, and advertisements (eg for Dickens’s novels). It was superseded in 1953 by the Weekly Law Reports, which aimed to make full-length reports available more quickly than The Law Reports and to cover additional cases.

In addition to these general series the Council, or The ICLR as it has more recently become known, has launched a number of more specialist series of law reports as well as several “subsidiary or other publications”. The Law Reports edition of the Statutes began publication, as anticipated in the Council’s objects, in 1866. The Law Reports Indian Appeals (LR Ind App) ran from 1872 until 1950 and were intended to cover the increasing volume of business reaching the Judicial Committee of the Privy Council from the courts in the Indian subcontinent, and perhaps perceived as of more specialised or localised interest to practitioners. The Restrictive Practices Cases (LR RP), launched in 1957, were later incorporated into the Industrial Court Reports (ICR), from 1972 (renamed Industrial Cases Reports in 1975), which covers employment, discrimination and pensions law. The Business Law Reports (Bus LR) were launched in 2007 to meet the demands of practitioners dissatisfied with the existing coverage of company, commercial and intellectual property cases (especially the quality, expense and lack of selectivity thereof); and in 2009 the ICLR launched the Public and Third Sector Law Reports (PTSR) to provide more targeted coverage of local authority, charity and ecclesiastical cases.

Most notable (and useful) of the subsidiary publications were the cumulative and consolidated Digest of Cases, which appeared in a series of multi-volume editions from 1865 until 1950, and was succeeded by the Consolidated Index, currently in its eighth volume (2011—2014). These are works of citation and, in a sense, abridgement, first listing all the cases published not only by the ICLR but also in other leading general or specialist series, giving parallel citations; then listing the subject matter covered by reference to a standardised alphabetical taxonomy; and then listing the cases and legislation judicially considered.

Occasional publications include the ICLR Special Issue, published in 2001 to mark the re-launch of WLR in a new design, and containing, like the present volume, a selection of ten landmark cases, not all of which have made it into the current lifeboat. (The selection on that occasion was made by the reporters and editors of the ICLR.) I will say more about this anon.

Digitisation and the Internet

In the 1990s, the ICLR formed an alliance with Context Ltd to digitise the bulk of its legacy content — that vast archive of case reports dating back to 1865. The result was the ELR – the Electronic Law Reports, consisting of a set of CD roms containing the entire output of The Law Reports, plus further discs including the Weekly Law Reports, the Industrial Cases Reports and the Statutes. When it became practicable to do so, this content was put online, via a platform which had by then changed its name from Context to Justis. The ICLR continued to license its content to Justis, who added it monthly to the cumulative CD roms and uploaded it online, but it also began to license to other providers, including Lexis and Westlaw. Meanwhile, as uptake of digital services increased, so subscriptions for paper products began to decline. This is hardly surprising, given the ease of use and instant accessibility of online content.

In 2011 the ICLR launched its own internet platform, ICLR Online. (Previously, it had experimented with online delivery of content direct to users of the Business Law Reports and Public and Third Sector Law Reports using a portal attached to its website from 2008.) The development of ICLR Online has been a game-changer for the ICLR, transforming it (philosophically at least) from being a print publisher that also delivers content online, to being primarily now an online publisher that also delivers some of its content in print. I say “some of its content” because one of the principle benefits on online publishing is that it does not take up shelf space in a crowded library; another is the almost instant availability of content. So far as the latter is concerned, the ICLR since 2000 has been publishing free overnight summaries, now cited as WLR Daily or WLR (D), of any cases it deems likely to report in full in the Weekly Law Reports or one of its specialist series; and in 2012 it began publishing brief Case Notes of any cases which its reporters had covered but did not merit more substantial reporting. From all of these summaries, a link is provided, under an arrangement set up in 2012, to any original transcript of the judgment available on the British and Irish Legal Information Institute (BAILII) website; corresponding links can be made between the transcript on BAILII and any report or case summary of that judgment on the ICLR website (in the case of free content such as WLR Dailies) or ICLR Online (in the case of any subscription series law reports; alternatively, users may purchase a PDF).

In 2014 ICLR Online was re-launched (as Version 2) with a completely new design and vastly improved search functionality, and in July 2015 this was upgraded (as Version 2.5) to include a number of other major improvements, including

  • Case Law Browsing (the ability to browse for any ICLR case by series and year or volume number)
  • Legislation (the ability to search and retrieve the originally enacted or latest version of any in-force statutes and statutory instruments, taken from the version provided by the National Archives)
  • Session History (the ability to go back and retrieve or save for future reference any case or legislative provision viewed in the course of the current session).

The online delivery of content has been made possible by a revolution in the ICLR’s publishing workflow, which was designed and implemented by Minto Gordon Ltd, from 2007 onwards. A key element in ICLR Online is the Citator+ service, which is essentially an online (and rather more agile and comprehensive) version of the Consolidated Index. This displays alongside each case report or summary, or as a standalone document for any case indexed but not reported by ICLR, an “index card” of information about that case, giving its parallel citations, subject matter headings, and other information relating to that case or to any other cases with which it is connected (for example by judicially considering them or being considered by them). The foundation of this online index database was the digitisation, by the Eastern Book Co in India, of the entire run of the hard copy Consolidated Indexes. The development of ICLR Online, including the creating of the index database, was then achieved by Catalysts Ltd.

Online services do not stand still. The technical possibilities of the internet continue to develop and services using the internet must do likewise. Version 3 of ICLR Online, currently under development [see Update, below], will make a giant leap forward in terms of its content and functionality. Meanwhile, the publishing system is being overhauled to enable a vastly increased volume and speed of publication. Time is now of the essence, though quality should not be spared. The aim, therefore, is to achieve both. Before the launch of Durnford and East’s King’s Bench reports in 1785, it was considered reasonable to be kept “waiting two or three years till some gentleman of experience and ability has collected matter sufficient to form a complete volume”. Their plan to produce one at the end of each term was considered revolutionary. But that was the 18th century. Now practitioners expect to see a judgment uploaded the same day, and a digest or summary not long after. The ICLR plans to achieve both of these objects, but also to deliver, within a matter of weeks, rather than months, a full text case report of anything fulfilling not only Lord Lindley’s first three (and rather more selective) criteria; but also its fourth, the quality of being “peculiar instructive” to the profession, which might hitherto only have been summarised. The delivery of this additional content will be through a fourth, online-only volume of the Weekly Law Reports. It will bear the same type of citation as the other three volumes (whose volume has increased enormously of late) but the page number will be replaced by a case number and the content will not be included in the print edition.

Continuing relevance

The ICLR has continued to apply the criteria for reporting, as identified in Lindley’s paper, for the last 150 years, and does not propose to abandon them now. If a reporter is going to spend time framing a headnote and catchwords, and if editorial work is going to be expended on checking the citations and quotations in the judgment, then the case has to be one which is likely to be of further use as a precedent. That does not mean, however, that there is no value in making available, by means of the internet, a collection of unreported judgments, such as is provided by BAILII. Both have their place, as Lord Neuberger has explained in his lecture, “No Judgment, No Justice”, as discussed by Daniel Hoadley in his piece in this volume, “The Curious Case of the Judgment Enhancers” (post, p 17). Moreover, it may be somewhat arrogant to assume that the only value of judgments to posterity might lie in their utility as legal precedents. There are fascinating projects to be done on the changing language of judgments, the shifting frames of reference, the literary and vernacular quotations, the evidence of class, culture and political bias, which modern data-mining and algorithmic analysis makes possible. Moreover judgments are part of the machinery of justice, which should be open to view for no better reason than to keep judges on their toes and to ensure, in the words of Lord Hewart, Lord Chief Justice, in R v Sussex Justices, Ex p McCarthy [1924] 1 KB 256, 259, that “justice should not only be done, but should manifestly and undoubtedly be seen to be done.”

Curiously enough, something very like BAILII was proposed in 1864 when the objects of the Council of Law Reporting were being discussed. Mr Joshua Williams, a member of the committee who did not sign its report, recommended in his minority report:

“(1) that all judgments of the Superior Courts should as far as practicable be in writing;

(2) that all judgments of the Superior Courts, not committed to writing before delivery, should be committed to writing under the authority of the court as soon as possible after delivery; and

(3) that access to all the judgments of the Superior Courts should be afforded to every member of the profession as speedily and cheaply as possible.”

According to AC Moran (in Heralds of the Law (1948), from which the above is sourced), Professor AL Goodhart KC, a member of the Lord Chancellor’s Committee on Law Reporting in 1940, made a similar recommendation, 75 years later. But it was not adopted. And yet, thanks to the Open Law project and the model of Cornell’s pioneering Legal Information Institute, we now have BAILII. Mr Joshua Williams and Professor Goodhart could be considered presiding spirits on its board of trustees. But, for reasons Daniel Hoadley has set out in more detail, the symbiosis of the ICLR and BAILII as charities in support of the administration of justice should perhaps be more widely recognised.

In March 2000 a conference was held at Cambridge Law Faculty with the rather portentous title of “Law Reporting, Legal Information and Electronic Media in the New Millennium”. Lord Bingham of Cornhill, then Lord Chief Justice, “broadly welcomed” the increase in available information. If justice was to be administered in public, he said, its end product should be in the public domain. It was a denial of justice if knowledge was confined to an inner circle of high priests who alone had access to its mysteries. But there was a danger of swamping the courts if counsel did not exercise restraint. Echoing those sentiments Lord Justice Buxton, a member of the Council (which sponsored the conference), pointed out that few Court of Appeal decisions merited reporting since most turned on existing principles and merely illustrated their application. But for the few judgments which were genuinely reportable, the “added value” of edited, annotated reports, especially those including notes of argument (often very illuminating in identifying the issues), must not be overlooked.

Things have moved on since then. One of the most notable developments has been the enthusiastic support, by many in the judiciary, of the ready availability of judgment transcripts on BAILII. (A mischievous thought: one sometimes wonders whether, for a judge, having your carefully crafted words of wisdom published online is perhaps a bit like blogging.) Although practice directions have continued to insist on the citation of cases from The Law Reports where available, and other law reports in preference over unreported transcripts, that issued by Lord Bingham’s successor, Lord Woolf CJ in 2001 (Practice Direction (Judgments: Form and Citation) [2001] 1 WLR 194, para 3.1) made no mention of BAILII, whereas the later one issued on the same subject by Lord Judge CJ in 2012 (Practice Direction (Citation of Authorities) [2012] 1 WLR 780, paras 6-10) not only mentioned it but gave its domain address. It said, at para 10:

“Where a judgment has not been reported, reference may be made to the official transcript if that is available, not the handed-down text of the judgment, as this may have been subject to late revision after the text was handed down. Official transcripts may be obtained from, for instance, BAILII (http://www.bailii.org/). An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authority.”

Even more positive endorsement has come from the President of the Family Division, Sir James Munby, in two recent directions (though diplomatically cast as “guidance”), concerning transparency – in essence proposing that judges release all judgments given in the Family Court (including those by non High Court judges) or the Court of Protection, unless and to the extent that they need to be redacted to protect vulnerable parties. In each case he directed specifically that they be sent to BAILII, though they can be and are also sent to the Judiciary’s own website (http://www.judiciary.gov.uk) for inclusion in its much more selective, and non-searchable collection: see Practice Guidance (Family Courts: Transparency) [2014] 1 WLR 230 and Practice Guidance (Court of Protection: Transparency) [2014] 1 WLR 235. In para 2 of both directions he explained his purpose, which highlights the open justice principle:

“In both courts there is a need for greater transparency in order to improve public understanding of the court process and confidence in the court system. At present too few judgments are made available to the public, which has a legitimate interest in being able to read what is being done by the judges in its name. The guidance will have the effect of increasing the number of judgments available for publication (even if they will often need to be published in appropriately anonymised form).

So although Buxton LJ and many other senior judges deplore the over-reporting of cases, the idea that judgments should be available and freely accessible as a species of public legal information is now widely accepted, and with good reason. The number of cases which should be plucked out of that bran tub and enhanced with the magic fairy dust of a law report is open to debate, but that does not mean that the relevance of law reporting itself has evaporated. Far from it. The ability to identify what is worth using as a professional or educational tool remains a valuable professional skill, and one for which legal professionals are grateful to have the ICLR leading the way.

The selection process

On the whole, it is reporters who decide whether a case is significant enough to report in the first place and, if it is, how it should be reported. Occasionally counsel or the judge will suggest that a case either is or (less likely) is not reportable, but in England and Wales the reportability of cases is not determined by the courts, as in some other jurisdictions. The natural tendency of counsel to promote their own career may distort their assessment of the significance of a case; and although most solicitors are happy to assist with papers and the like, some are downright obstructive. None of this should influence the reporter’s assessment, or their duty to report the reportable. For it is the reporter’s job, in the first place, to assess the significance of the case and its likely usefulness as a precedent. They are guided by their managing or sub- editors, and in the last resort by the Editor. Lindley’s criteria remain their guide. But there are variations of significance, and some cases which seem important at the time turn out not to be, perhaps because they are overtaken by fresher precedents, or the law is changed by statute. Other cases turn out to be far more significant than appeared at the time (when, indeed, they may even have been overlooked altogether, though this is rare). Moreover, the exact nature of their significance may not be immediately apparent. One of the benefits of an exercise such as the selection of the cases for this book is to see how the original thoughts of reporters who wrote their headnotes have fared in the longer gaze of posterity.

When, in 2001, the ICLR published its Special Issue, it was the reporters and editors who selected what they deemed the ten top cases for inclusion. Long term significance was an important criterion, but perhaps there was also a desire to achieve a balance of subject matters, and something not unlike vanity may have inspired the choice of a case in which the ICLR had itself been a party. It is interesting to compare the present list, chosen by readers, with those that were chosen on that occasion. They were:

  1. R v Dudley and Stephens (1884) 14 QBD 273, DC
  2. Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256, CA
  3. Donoghue v Stevenson [1932] AC 562, HL(Sc)
  4. Woolmington v Director of Public Prosecutions [1935] AC 462, HL(E)
  5. Young v Bristol Aeroplane Co Ltd [1944] KB 718, CA
  6. Central London Property Trust Ltd v High Trees House Ltd [1947] KB 130
  7. Associated Provincial Pictures Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, CA
  8. Incorporated Council of Law Reporting for England and Wales v Attorney-General [1972] Ch 73, CA
  9. American Cyanamid Co v Ethicon Ltd [1975] AC 396, HL(E)
  10. Van Duyn v Home Office [1975] Ch 358, ECJ

Perhaps the most surprising omission in the present volume, selected by readers, is the Dudley and Stephens case. It was the memorable subject of the first ICLR Annual Lecture, given by Professor Brian Simpson, “Cannibals at Common Law”, and its tale of the poor cabin boy, consumed in desperation by his shipwrecked companions, passed into popular song at the time (with satirical lyrics by William Makepeace Thackeray). Moreover the principle of law, that necessity is no defence to murder, is no less memorable to anyone who has ever been a law student. But perhaps it was just too obvious a choice for selection by the modern practitioners who took part in “ICLR Vote”, the online selection process for the present volume. Let me say a little more about how that was done.

Having decided to expand the selection to fifteen cases, one per decade of the ICLR’s history, we then divided that history into five periods:

  1. 1865 to 1914
  2. 1915 to 1945
  3. 1946 to 1970
  4. 1971 to 1995
  5. 1996 to 2014

The periods were not of equal length because we recognised that older cases that still matter today are rarer than more recent landmark decisions (though these too may wane in relevance as time marches on). Within each period, ten cases were selected by way of a shortlist, for readers to vote on. (The selection was made by myself, Daniel Hoadley and Nicholas Mercer, editor of the Business Law Reports, with the approval of Clive Scowen, as Editor.) But readers could nominate “extra” cases if they thought they merited inclusion instead. The shortlist for each period was published on our website and readers given a month to make their selection. Free PDFs were provided for each case, so even those without a subscription to ICLR Online could read and compare the cases. All the cases were also made available on BAILII.

Although a number of extra cases were proposed, there was no flood of indignation at a key case overlooked in the shortlisting process, for which we are relieved. As each month drew to a close, we reported in a blog post on the votes given so far, and alerted readers to any extra choices for that period. The final fifteen make an excellent list, but perhaps not as neatly distributed across the subject areas as might have been hoped. There are some interesting “doubles”: Donoghue v Stevenson [1932] AC 562 appears, logically enough, but so does its eventual replacement, as a test for the existence of a duty of care, Caparo Industries plc v Dickman [1990] 2 AC 605. The Wednesbury case [1948] 1 KB 223, on the test for judicial review, is partnered perhaps more logically with the cousin which so enlarged the scope for its application, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Another interesting pairing is that of Liversidge v Anderson [1942] AC 206, in which wartime expediency trumped the rule of law (and a surprising omission from the 2001 volume), with A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, in which the rule of law — thanks in no small measure to the Human Rights Act 1998 — held sway.

No doubt there are cases which some readers are aghast not to find here, and in time, perhaps when the ICLR celebrates its 200th anniversary, there will be others that take the place of those here. Until then, with thanks to all those readers who took part, here we stand.

Paul Magrath
Head of Product Development and Online Content, ICLR

 

Updated 5 August 2019

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