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The ICLR guide to reportability

People often ask us, how do you decide whether or not to report a case? What are your criteria for assessing precedential value? Continue reading

This extract from our Reporters’ Style Book explains the process.

Reportability: general principles

We still follow the principles set out by Nathaniel Lindley (later to become Master of the Rolls and a Law Lord) in his “Paper on Legal Reports”, which are as sound today as when they were written in 1863. (They are set out in full below.) Apply them constantly and consistently!

According to these principles, we should not report cases which pass without discussion or consideration, and which are valueless as precedents; or which are substantially repetitions of what is reported already.

On the other hand, we should report cases which:

  1. introduce, or appear to introduce, a new principle or a new rule;
  2. materially modify an existing principle or rule;
  3. settle, or materially tend to settle, a question upon which the law is doubtful;
  4. for any reason are peculiarly instructive.

Any judgment given in one of the courts covered by ICLR which is reportable according to the Lindley principles will be reported in one of ICLR’s series. Any case which falls within any of categories (1) to (3) will be reported:

  • in volumes 1, 2 or 3 of WLR if considered of sufficient interest to warrant reporting there
  • in one of our specialist series (ICR, Bus LR or PTSR) if it falls within the relevant subject matter and is not of wider application
  • in 4 WLR if it does not fall within the subject matter of one of the specialist series and is not of sufficient interest to warrant inclusion in volumes 1, 2 or 3 of WLR.

Any case which falls within category (4) will be reported:

  • in WLR volume 1 if it deals with a point of practice, procedure or costs of general application
  • in one of the specialist series if it falls within the relevant subject matter
  • in 4 WLR if it does not deal with a point of practice, procedure or costs of general application and does not fall within the subject matter of one of the specialist series.

We do not report cases that cannot be cited.

Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, paras 6.1 and 6.2, which applies to all courts apart from criminal courts (including within the latter category the Court of Appeal (Criminal Division)), provides that a judgment delivered after 9 April 2001 which falls within one of the following categories may not be cited unless it expressly states that it purports to establish a new principle or to extend the present law:

  1. applications attended by one party only;
  2. applications for permission to appeal;
  3. decisions on applications that only decide that the application is arguable;
  4. county court cases unless
    1. cited in order to illustrate the conventional measure of damages in a personal injury case, or
    2. cited in a county court in order to demonstrate current authority at that level on an issue in respect of which no decision at a higher level of authority is available. We do not in any event report decisions of the County Court since they are not of binding authority unless the decision is that of a High Court judge.

Cases which were reported by ICLR below [ie in a lower court hearing] are always reported on appeal, in the same ICLR series, even if the appellate court’s decision is inherently unreportable. If the appeal judgment is in itself unreportable it will be reported as a Note: see section 2.5 for more on this. If your judgment is at appellate level it is your responsibility to check if we reported it below.

If the judgment involves the construction of a statute it is very likely to be reportable.

Reportability: 4 WLR

Cases which are reported because they are “peculiarly instructive” but do not deal with points of practice, procedure or costs are normally reported in 4 WLR [an extra volume, published online, from 2016.]

Included will be cases which:

  • illustrate the application of established rules or principles to particular factual situations in such a way as to be of practical value to counsel or solicitors
  • helpfully bring together and summarise the established rules or principles applicable in a particular area of law
  • articulate principles to guide the exercise of judicial discretion conferred by statute, rules of court or the inherent jurisdiction
  • indicate the level of general damages awarded in particular factual situations in a way which may assist courts assessing damages in similar cases
  • indicate the level of sentence to be imposed for particular offences in a way which may assist courts sentencing for similar offences

A case will not be “peculiarly instructive” if it:

  • is purely interlocutory and decides only that a point is arguable
  • is an application for permission to appeal or to proceed with a claim for judicial review and the court does not indicate that it may be cited
  • determines a question of procedure or costs which could only ever apply to the case in question

Extract from a Paper on Legal Reports by Nathaniel Lindley (1863)

The object of a report is, not to inform the public of all that passes in a court of justice, but to preserve a record of what is decided to be law; and the object of having this record is, to facilitate the study of the law itself.

Hence, the duty of a reporter is widely different from that of a newspaper writer on the one hand, and from that of the registrar of the court on the other. The compositions of the first are not intended for study, and the duty of the last is only to register the final result of each particular case which is brought before the court.

Reports, to be good, must be so both as regards the subject reported and the manner in which the reports themselves are framed.

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.

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.

With respect to the manner in which the reports should be framed:

  1. They should be accurate.
  2. They should be full, in the sense of containing everything material and useful.
  3. They should be as concise as is consistent with the above objects.

In In particular they should show:

  1. The parties.
  2. The nature of the pleadings.
  3. The essential facts.
  4. The points contended for by counsel.
  5. The grounds on which the judgment is based.
  6. The judgment, decree, or order actually pronounced.

Reports which give the judgment with little or no information respecting the pleadings, the evidence, or the arguments, are of no real utility; whilst those, on the other hand, which give the pleadings, the evidence, and arguments at unnecessary length, are open to the objection that they entail waste of money, time, and trouble on those who have to procure and read them. Both classes of reports are discreditable to their authors; for both are the result of idleness and indifference to the wants of those for whom the reports are intended.

It has, indeed, been plausibly urged, that the judgment itself should contain a statement of the facts deemed by the judge to be material to be established, as well as of the reasons on which he decides upon them, and that a good report should give the judgment only. But even if all judgments were as elaborate as, according to this view, they should be, it would still be found that a report of the judgment, and no more, would exclude much matter of the greatest value. It does not follow that what alone is material to the judgment, is alone worth putting into the report. Much is to be learned by a study of the pleadings, even although there may have been no occasion for the judge pointedly to allude to them; and it must never be forgotten that for practical purposes it is of the greatest advantage to know in what form each case was brought before the court. In many cases, however, such matters would naturally be passed over by the judge, whose attention is, or should be, concentrated on those points on which the case, when mastered, is found to turn.

With respect to the publication of reports, it is desirable:

  1. That they should be published as speedily as is consistent with a conscientious discharge of the reporter’s duties.
  2. That they should be printed in clear type, on good paper, and be of a convenient portable size.
  3. That they should be accompanied by good indexes and marginal headings.
  4. That they should be sold for the lowest price which is consistent with the payment of the expense of their publication.

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