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Thursday, 26 June 2014

Law reports: the status of authorities

Published on LNUK's PSL Dispute Resolution Blog here


It is the duty of counsel to cite the appropriate law report for a case and it is not sufficient to cite an unofficial report if an official or approved report is available. Therefore, it is important when researching or preparing bundles for counsel or court, to ensure that the most appropriate law reports are referred to.

There are a large number of law reports and the courts have issued various practice directions from time to time relating to their use. The most recent of these is a practice direction which identifies the hierarchy of the law reports that should be referred to to clarify the position. This was handed down by the Lord Chief Justice on 23 March 2012 and repeals and varies previous practice directions and statements (paras 2-3), although it does re-state much of the previous practice.  It is reported at [2012] 2 All ER 255. 

Hierarchy of reports to be used

The hierarchy of law reports which should be cited using the following law reports:

First: cases reported in the Official Law Reports (AC, QBD, Ch, Fam) produced by the Incorporated Council of Law Reporting for England and Wales). These are the most authoritative reports and contain a summary of the argument. Where a judgment is reported in these reports, that report must be cited. Other reports and transcripts may only be used when a case is not in the Official Law Reports. Note:
  • these reports are not published until (at the earliest) some months after judgments are delivered and sometimes not until the next year
  • these reports will therefore not always be available when required

Second: where a case has not been (or not yet been) reported in the Official Law Reports, then the All England Law Reports (All ER) or the Weekly Law Reports (WLR) should be cited
  • All ER and WLR are of equal weight, so either of these reports may be cited
  • both All ER and WLR are seen by the relevant judge(s) before publication

Third: if the case has not been reported in any of the above sets of law reports, but is reported in any of the authoritative specialist series of reports, which contain a headnote and are made by individuals holding a Senior Courts qualification, that specialist report may be cited. Specialist reports include:
  • Simon’s Tax Cases (STC)–headnotes are sent to the judges before publication
  • Law Reports of the Commonwealth (LRC)
  • the Industrial Relations Law Reports (IRLR)
  • Butterworths Company Law Cases (BCLC)–headnotes are sent to the judges before publication
  • Butterworths’ Human Rights Cases (BHRC)
  • All England European Reports (All ER (EC)
  • All England Commercial Cases (All ER Comm)–headnotes are sent to the judges before publication
  • Local Government Reports (LGR)
  • Butterworths Medico-Legal Reports (BMLR)
  • Family Court Reports (FCR)—headnotes are sent to the judges before publication
  • Construction Law Reports (Con LR)
  • International Tax Law Reports
  • Intellectual Property and Technology Reports (IP&T)—headnotes are sent to the judges before publication

Fourth: where a judgment is not reported in any of the reports listed above, but is reported in other reports, they may be cited.

Fifth: where a judgment has not been reported at all, the official transcript may be used, but not the handed-down text of the judgment, as this may have been further amended after the text was handed down. An unreported case should not usually be cited unless it contains a relevant statement of legal principle not found in reported authorities. Official transcripts may be obtained from sources such as BAILII.
Notes on hierarchy:
  1. where there are discrepancies between reports, or where one report is fuller than another, then the hierarchy set out above need not be followed, but this should be explained to the court and the alternative references should be given
  2. If a judgment under appeal has been reported before the hearing but after skeleton arguments have been filed and counsel would prefer to argue from the published report the court should be provided with photocopies of the report for the court to use

Format of copies of authorities

Wherever the report comes from, the copy of the report which is provided to the court should be either a photocopy or a copy of a reproduction in electronic form (which has been authorised by the published) but in either case the following must be complied with:
  1. the report must be presented to the court in an easily legible form (a 12 point font is preferred but a 10 or 11 point font is acceptable), and
  2. the advocate presenting the report must be satisfied that it has not been reproduced in a garbled form from the data source
In any case of doubt, the court will rely on the printed text of the report (unless the editor of the report has certified that an electronic version is more accurate because it corrects an error contained in an earlier printed text of the report).

Ex tempore judgments

A number of judgments are given ex tempore, that is to say orally by the judge, whether due to pressure of time or for some other reason.In such instances an official transcript will or should become available subsequently. The time this takes will vary from case to case. However, it is seldom less than two weeks and may be more depending on a variety of factors such as the workload of the shorthand writer/transcription service, the availability of the judge and whether there are any queries arising out of the transcription.
Digests of ex tempore cases may be found on internet publications such as the All England Reporter service.
The All England Reporter is the only such service whose reports are prepared exclusively by barristers or qualified solicitors, whose name appears at the end of each digest, and hence meet the requirement stated in Halsbury’s as quoted above.

The reports are cited as [year] All ER (D) (number) (month), for example: Smith v Jones [2008] All ER (D) 999 (Nov). All England Reporter also provide links within its digests to cited cases within the same platform.

Neutral Citations

The practice of issuing neutral citations for judgments, that is to say citations not linked to any series of reports, was introduced in the Court of Appeal and Administrative Courts by Practice Note [2001] 1 All ER 193, and extended to the High Court by Practice Direction [2002] 1 All ER 351. The former practice note also introduced the practice of paragraph numbers in judgments. According to Lord Woolf CJ ([2001] 1 All ER 193, paras 2.3-2.4):
2.3 The neutral citation will be the official number attributed to the judgment by the court and must always be used on at least one occasion when the judgment is cited in a later judgment. Once the judgment is reported, the neutral citation will appear in front of the familiar citation from the law report series. Thus: Smith v Jones [2001] EWCA Civ. 10 at [30], [2001] QB. 124, [2001] 2 All ER. 364, etc. The paragraph number must be the number allotted by the court in all future versions of the judgment.
2.4 If a judgment is cited on more than one occasion in a later judgment, it will be of the greatest assistance if only one abbreviation (if desired) is used. Thus Smith v Jones [2001] EWCA Civ. 10 could be abbreviated on subsequent occasions to Smith v Jones, or Smith’s case, but preferably not both (in the same judgment).

Note: some websites have added neutral citations to cases prior to 2001. These have no authority as they were not issued by the court. They should accordingly be used with caution.

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